ORDER ON DEFENDANT'S MOTION FOR SUMMARY
I. Billings, Justice
the Court is Defendant Annemarie Germain's motion for
summary judgment. Plaintiff Portland Museum of Art (the
"PMA") has opposed this motion, and it is in order
for decision. For the following reasons, the motion is
following facts are drawn from the parties' statements of
material facts and are not in dispute except where otherwise
The Relationship Between Ms. Germain and Mrs. Potter
Potter died in 2004, leaving all of his assets to his wife,
Mrs. Eleanor Potter. (Pl.'s S.M.F. ¶ 108.) Before he
died, he asked Ms. Germain to "watch out for his wife
and make sure nobody takes advantage of her."
(Id.) After Mr. Potter's death, Ms. Germain
would visit Mrs. Potter on the weekends and would also see
her during the week while they were working together at
Warren Furniture in Westbrook. (Def.'s S.M.F. ¶ 1.)
Mrs. Potter broke her leg in March 2012. (Def.'s S.M.F.
¶ 2.) Ms. Germain stayed with Mrs. Potter while she was
recuperating from her leg injury but maintained a home in
Biddeford Pool. (Def.'s S.M.F. ¶ 3.) Ms. Germain
teased Mrs. Potter one day by saying, "I have to go
home" and "you'd probably love it if I was here
24/7," and Mrs. Potter answered, "Oh, will
you?" (Def.'s S.M.F. ¶ 4; Pl.'s Resp. to
Def.'s S.M.F. ¶ 4.) Ms. Germain moved in with Mrs.
Potter in March 2012 at Mrs. Potter's request.
(Def.'s S.M.F. ¶ 5.)
occasion, Mrs. Potter asked Ms. Germain to proofread checks,
or to write out a check for Mrs. Potter to sign. (Def.'s
S.M.F. ¶ 10-) The only instances in which Ms. Germain
wrote out the amount of the check were at Mrs. Potter's
specific direction. (Id. ¶ 11.) Mrs. Potter
never pre-signed blank checks for Ms. Germain to complete,
nor did she sign checks before the amount was written in.
(Id. ¶ 12.) According to Ms. Germain, Mrs.
Potter would write her a check "just because she likes
the shirt you had on that day or the high heels you had
on." (Pl.'s S.M.F. ¶ 126.)
Ms. Germain was added to Mrs. Potter's TD Bank checking
account in June of 2014, almost $100, 000 was deposited into
the account, which had never had checks issued out of it
before. (Id. ¶ 127.) Ms. Germain also began
receiving funds from this checking account. (Id.) In
December 2014, Ms. Germain was added as a co-owner to all of
Mrs. Potter's Bangor Savings Bank certificate of deposit
accounts. (Id. ¶ 128.) By the time Mrs. Potter
died, all of her funds belonged to Ms. Germain through joint
accounts. (Id. ¶ 129.)
she started working for Mrs. Potter, friends noticed
paintings, jewelry, and other valuables in Ms. Germain's
Biddeford Pool home. (Id. ¶ 130.) Ms. Germain
also began driving a gold Cadillac that Mrs. Potter purchased
for her. (Id. ¶131.) The next year, Mrs. Potter
bought Ms. Germain a Jeep Wrangler, which Mrs. Potter had to
use a stool to get into. (Id.) In December 2014,
Mrs. Potter bought Ms. Germain a second Cadillac for her
birthday. (Id.) Although Ms. Germain claims Mrs.
Potter gifted her "thousands" of pieces of jewelry,
Ms. Germain told her sister that she also found hidden
jewelry in the house and kept it. (Id. ¶
132.) Mrs. Potter also funded Ms. Germain's
extensive online shopping. (Id. ¶ 133.) Between
January 2011 and March 2012, Mrs. Potter charged less than
$1, 500 to her credit card. (Id. ¶ 134.) In
2013, Mrs. Potter charged $29, 692.96 to her credit card, and
she charged $39, 046.00 in 2014. (Id. ¶ 135.)
Although Mrs. Potter's attorneys thought Mrs. Potter was
paying Ms. Germain $5, 000 per month, Ms. Germain received
$111, 500 from Mrs. Potter's Bangor Savings Bank checking
account in 2014 alone. (Id. ¶ 136.) Darrell
Perry, a contractor who was hired to make improvements to
Mrs. Potter's home "for the benefit of
Annemarie" which included adding a sunroom and
renovating the kitchen, and who witnessed Mrs. Potter's
October 2, 2014 Will, was paid $17, 450.00 in 2013 and $46,
040.56 in 2014. (Id. ¶ 138.)
Mrs. Potter visited with her step-grandchildren, Ms. Germain
would not leave Mrs. Potter alone with them, and Mrs. Potter
did not engage in their conversations and sounded
"scared and nervous" when she spoke. (Id.
¶ 115.) When Mrs. Potter was hospitalized in 2014, her
family was not informed. (Id. ¶
The March 2014 Will
mid-1990s, Mrs. Potter and her husband created reciprocal
Wills and Trusts that would provide for Mr. Potter's
grandchildren. (Pl.'s S.M.F. ¶ 139.) Mrs. Potter
later executed another Will on November 28, 2005. (Def.'s
S.M.F. ¶ 17.) The only bequest the 2005 Will made to the
PMA was a gold necklace, and even then, only in the event
Barbara Greenburg Harrison was not alive at the time of Mrs.
Potter's death. (Id. ¶ 19.) The next Will
Mrs. Potter executed is dated December 11, 2007 and contained
the same bequest to the PMA as the 2005 Will. (Id.
Potter first spoke with Attorney Kelley Young about the
possibility of creating a trust for her sister, Barbara
Coleman, in 2009. (Pl.'s S.M.F. ¶
140.) The idea of revising her estate plan to
include a trust was revisited with Attorney Young and
Attorney Matthew Goldfarb, Mrs. Potter's longtime lawyer
and friend of 45 years, in the spring of 2013. (Id.
¶ 141.) Ultimately, the only aspect to be determined was
what to do about Mrs. Potter's residuary estate.
(Id. ¶ 143.) After considering the matter for
over two years, Mrs. Potter decided to name the PMA as the
residuary beneficiary of her estate. (See id. ¶
145; Def.'s Reply S.M.F. ¶ 145.)
with Mrs. Potter's expressed wishes, Attorney Young
prepared a pour-over will that devised her estate to a trust
that would be administered primarily for the benefit of Mrs.
Coleman. (Pl.'s S.M.F. ¶ 149.) According to her
trust agreement, upon her death, her trustees -Attorney
Goldfarb and Hugh Judge of R.M. Davis, Inc. - were to retain
$500, 000 for Mrs. Coleman's benefit, distribute her home
to Ms. Germain, make specific gifts to Mrs. Potter's
stepdaughter, step-grandchildren and other charitable
interests, and then distribute the balance to the PMA free
and clear of trust, amounting to approximately $1.2 to $2
million, depending on how much was left after Mrs.
Potter's passing. (Id. ¶ 150.) The PMA was
also the remainder beneficiary of the funds set aside for
Mrs. Coleman. (Id. ¶ 151.) Attorney Goldfarb
did not believe the desired distribution of Mrs. Potter's
home to Ms. Germain was the result of undue influence.
(Def.'s S.M.F. ¶ 34.)
Germain was not present at the initial meeting to discuss
changing the 2007 Will on September 18, 2013, and she did not
bring Mrs. Potter to that meeting. (Id. ¶ 33.)
Prior to execution, Attorneys Goldfarb and Young reviewed
Mrs. Potter's estate plan alone with her paragraph-by -
paragraph, and Attorney Young made Mrs. Potter aware of
everything that was in her trust. (Pl.'s S.M.F. ¶
153.) The attorneys then invited Ms. Germain into the room
and reviewed the basic sketch of the estate plan with her.
(Id. ¶ 15 5.) Although Mrs. Potter's trust
specifically directed her trustees to deed her home to Ms.
Germain, Ms. Germain complained "loudly and vociferously
about the fact that her name wasn't mentioned in the
will" and "that she was not happy with the will and
trust." (Id. ¶ 156.) Attorney Young
then asked Ms. Germain to leave the room while Mrs. Potter
executed the documents. (Id. ¶ 157.)
Potter executed the Will and Trust on March 18, 2014.
(Def.'s S.M.F. ¶ 23.) The process of changing the
Will took two-and-a-half years. (Id. ¶ 29;
Pl.'s Resp. to Def.'s S.M.F. ¶ 29.) Attorney
Young mailed Mrs. Potter a copy of her estate planning
documents on April 25, 2014. (Pl.'s S.M.F. ¶ 161.)
5, 2014, Mrs. Potter called Attorney Young out of the blue,
saying she urgently wanted to make changes to her estate
plan. (Pl.'s S.M.F. ¶ 164.) Prior to that date, Mrs.
Potter had never expressed any concerns about her estate plan
to Attorneys Young and Goldfarb. (Id. ¶ 165.)
Troubled and suspicious of Ms. Germain, Attorney Young
suggested a face-to-face meeting alone with Mrs. Potter,
which she refused. (Id. ¶ 166.) A few days
later, Mrs. Potter called again and insisted that Attorney
Young "tear up her will." (Id. ¶
167.) Attorney Young does not believe that Mrs. Potter's
instruction to destroy her March 2014 Will and Trust
reflected her personal desire or decision, but was the result
of an idea "that Matt Goldfarb and Hugh Judge were
stealing Eleanor's property ... that Anna had
planted." (Id. ¶ 169.) Concerned that Mrs.
Potter was being influenced by Ms. Germain, Attorney Young
responded that he would not tear up the will, but would
deliver the documents to her or send them to her new lawyer.
(Id. ¶ 170.) Mrs. Potter refused to reveal the
identity of her new lawyer, would not allow Attorney Young to
send her prior estate planning documents to her new lawyer,
which was "unusual," and instead told Attorney
Young to bring her the documents. (Id. ¶ 171.)
Attorney Young hand-delivered Mrs. Potter's estate
planning documents on June 10, 2014, Ms. Germain opened the
door and, in front of Mrs. Potter, started
"berat[ing]" Attorney Young. (Id. ¶
172.) Ms. Germain called Attorney Young "a thief,"
and told him to "admit to Eleanor" that Attorneys
Young and Goldfarb and Hugh Judge "were stealing from
Eleanor" by placing her assets into a trust they would
administer. (Id. ¶ 173.) Mrs. Potter asked
Attorney Young, "Why are you stealing from me?"
(Id. ¶ 174.) When Attorney Young tried to
explain that this was not the case, Ms. Germain interjected
and called Attorney Young a "pansy ass," claiming
he forced Mrs. Potter "to sign something she didn't
want when [they] asked Anna to leave the room."
(Id. ¶ 175.) Ms. Germain again complained that
"her name was not in the will" and that the house
was not going to her, despite the clear language of Mrs.
Potter's trust instrument. (Id. ¶ 176.)
When Attorney Young tried to show Ms. Germain that she was in
fact receiving the house, Ms. Germain threatened to put
Attorney Young's name "all over the Old Port as a
thief." (Id. ¶ 177.) The next day,
Mrs. Potter fired Attorney Goldfarb. (Id. ¶
178.) When Attorney Goldfarb called her to seek an
explanation, Mrs. Potter refused to talk to him.
(Id. ¶ 179.)
The October 2014 Will
3, 2014, Ms. Germain and Mrs. Potter met with Attorney
Richard LeBlanc. (Def.'s S.M.F. ¶ 50.) During the
meeting, it was discussed that Donald Coleman's IRA of
over $250, 000 would pass directly to Mrs. Coleman, and that
there seemed to be a number of joint accounts that now
belonged to Mrs. Coleman alone, as well as a residence owned
as tenants-in-common so that Mr. Coleman's 50% interest
would pass to a trust to Mrs. Coleman. (Id.
Nelson Toner began representing Mrs. Potter during the summer
of 2014. (Id. ¶ 59; Pl.'s Resp. to
Def.'s S.M.F. ¶ 59.) Attorney Toner first learned of
Mrs. Potter through Attorney LeBlanc, who had contacted
Attorney Toner to ask for help with Mrs. Coleman. (Def.'s
S.M.F. ¶ 61.) When introducing Attorney Toner to the
situation with Mrs. Potter, Attorney LeBlanc told Attorney
Toner that Ms. Germain was a caregiver for Mrs. Potter and
lived with her at the home. (Id. ¶ 91.)
Young expected to hear from Mrs. Potter's new attorney to
request a copy of his file and to discuss Mrs. Potter's
prior estate plan, as is typical, but he was
"baffled" when this "call never came."
(Pl.'s S.M.F. ¶ 182.) Shortly after Mrs. Potter had
retained Attorney Toner, Attorney LeBlanc called him to
express his own concerns about Mrs. Potter's relationship
with Ms. Germain, telling Attorney Toner that he had
witnessed Mrs. Potter being "coach[ed]" by Ms.
Germain. (Id. ¶ 183.)
Toner's first meeting with Mrs. Potter was sometime
between July 9 and July 14, 2014. (Def.'s S.M.F. ¶
64.) When Attorney Toner arrived for the meeting, he was
greeted by Ms. Germain. (Id. ¶ 67.) During the
beginning of the meeting, Attorney Toner, Ms. Germain, and
Mrs. Potter were all sitting at the dining room table.
(Id. ¶ 68.) According to Attorney Toner's
billing records, the initial meeting lasted 30 minutes.
(Id. ¶ ...