- Ag Docket
The testator died at the age of fifty-five, leaving three surviving children. She executed a new will and got married one day before her death, while she was living in a hospice facility. In her will she devised all of her property to her new husband and appointed him to be the personal representative. She had been estranged from her children for several years. After being diagnosed with incurable lung cancer two months before her death, the testator spent the majority of her time in the hospital, in pain and on pain medication. By the time she executed the will, the testator was unable to speak, but nodded in affirmation to the will read to her. She signed the will with a “hand-over-hand” method, being unable to sign alone. The only witness to the will was the testator’s new husband’s mother. The testator’s children visited her in hospice the day before she died. One month after the testator’s death, her husband filed an application for informal probate of the will, the will was informally admitted, and the husband was appointed as the personal representative. One daughter filed a petition for a formal adjudication of intestacy and sought appointment as the personal representative. The daughter alleged that the testator lacked testamentary capacity. The probate court denied the daughter’s petition, and the appellate court affirmed, finding that the probate court did not abuse its discretion in excluding the husband’s expert witness on the grounds of an untimely designation. The daughter was not unfairly surprised by his testimony and he did not offer any opinion regarding the testator’s testamentary capacity. The husband presented prima facie evidence of due execution of the will, and the daughter failed to prove the absence of testamentary capacity. Estate of O'Brien-Hamel, No. And-13-440, 2014 Me. LEXIS 83 (Jun. 10, 2014).
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