Clark v. Thibodeau

• Court: Superior Court of Maine
• Decided: August 31, 2022
• Docket: ANDcv-22-15
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. CV-22-15

VENISE CLARK, individually And as Personal Representative of Estate of Tina Marie Thibodeau, ORDER ON MOTION Plaintiff TO DISMISS AND V. MOTION TO AMEND

LUCIEN THIBODEAU, In his capacity as Personal Representative of Estate Of Norman Thibodeau,

Defendant And

CHRISTINA THIBODEAU And FELLOWSHIP CHURCH Parties in Interest

Before the court is Defendant Lucien Thibodeau's motion to dismiss filed July 8, 2022,

seeking dismissal of Plaintiff's complaint filed June 24, 2022. Plaintiff's complaint is primarily a

declaratory judgment action regarding ownership of real estate and a vehicle held in the Estates

of Tina Marie Thibodeau (Tina) and Normand Thibodeau (Normand). Also pending is Plaintiff's

motion to amend complaint and substitute parties by which she seeks to have the devisees named

in the respective wills named as the proper paities in this action.

1 Tina and Normand were husband and wife who had prepared reciprocal wills that named

each other as sole beneficiary of each's estate, and if not survived by their spouse, both wills

made a specific bequest to Christina Thibodeau, with the residue bequeathed to the Fellowship

Church. In late 2021, both Tina and Normand contracted COVID-19 and became very ill. Tina

amended her will naming her sister Venise Clark (Venise) as the residuary beneficiary.

Normand's will was not amended. Normand died on or about November 30, 2021 and Tina died

on or about December 5, 2022. At the time of their deaths, they owned real estate in Lewiston,

Maine and a vehicle. A factual controversy exists whether Tina survived Normand by more than

120 hours. The effect of that factual controversy is whether pursuant to Maine's simultaneous

death statute all of Normand and Tina's assets, the real estate and vehicle, are to pass through

only Tina's will, or if 50% of those assets are to pass through each will. (See 18-C, M.R.S .A. §2­

702)

Both Normand and Tina's wills were filed for administration in the Androscoggin County

Probate Court in January, 2022. On February 11, 2022 Letters of Authority were issued by the

Probate Court for each estate. And on May 20, 2022 Petitions for Formal Appointment of

Special Administrator were filed for both estates. On July 12, 2022 the Probate Court stayed

further action on the petitions pending resolution of the matters in this court.

Defendant seeks dismissal of Plaintiff's complaint in this court pursuant to M.R.Civ. P.

12(b)(l), lack of subject matter jurisdiction, and also raises forum non conveniens. The probate

court 1 has jurisdiction over all subject matter relating to: A. the estates of decedents, including

the construction of wills and determination of heirs and successors of decedents. 18-C, M.R.S.

§ l-302(A). The court has exclusive jurisdiction over formal proceedings to determine how

1 As used in the Probate Code, "court" means any one of the several courts of probate. 18-C, M.R.S. §1-201(8).

2 decedent's estates subject to the laws of this State are to be administered, expended and

distributed. 18-C, M.R.S. §3-105. The court has concurrent jurisdiction of any other action or

proceeding concerning a succession or to which an estate, through personal representative, may

be a party, including actions to determine title alleged to belong to the estate, and of any action

or proceeding in which property is distributed by a personal representative or its value is sought

to be subjected to rights of creditors or successors of the decedent. Id.

As indicated, the factual issue is whether Tina survived Normand by 120 hours. If she

did, then 100% of Normand and Tina's assets will pass by Tina's will only, and Christina and

Venise will be the devisees. If she did not survive Normand by 120 hours, then their assets will

be divided and 50% will pass by Normand's will and 50% will pass by Tina's will. In the latter

scenario the devisees will be Christina, Venise, and the Fellowship Church. In essence, this

factual issue will resolve the question of which estate has claim to and authority to distribute the

assets. The Superior Court and the Probate Court have concurrent jurisdiction to this factual

issue. But once the factual issue is resolved, the probate court is with exclusive jurisdiction to

administer the wills and estate, and distribute the assets per the appropriate will.

As argued by Plaintiff, legal title to devised real estate vests in the devisees, when the

will becomes operative, that is, after it has been proved and allowed by the court having

jurisdiction. Desmond v. Persina, 381 A.2d 633,637 (Me. 1978). This case will determine who,

among the devisees Christina, Venise and the Fellowship Church named in the wills, will

ultimately receive the bequests. As a devisee, Venise is entitled to bring a declaratory judgment

action in a court with proper jurisdiction to resolve this controversy. See 14, M.R.S. §5951 et.

seq. The Androscoggin County Superior Court has jurisdiction. Defendant also raises forum non

conveniens. Although a case was already pending in the Probate Comt, the court agrees with

3 Plaintiff that Androscoggin County Superior Court is as convenient as the Probate Court. "In

recognition of the harshness of dismissal, a court will not dismiss for forum non conveniens

unless the ends of justice strongly militate in favor of relegating the plaintiff to an alternative

forum." MacLeod v. MacLeod, 383 A.2d 39, 41 (Me. 1978).

Accordingly, the order is:

1. Plaintiff's motion to amend complaint and substitute parties is granted2; and

2. Defendant's motion to dismiss is denied.

The Clerk is directed to enter this order into the docket by reference ......... .... .. . pursuant to M.R.Civ.P. 79(a). (/ .- >,·//·~\ /~d//. . . ' t ' - . / •., / /)

-.,,J \

Date: August ,~ \ , 2022 ~/ ~~ Hari>ld Stewart, II Justice, Superior Court

2The court agrees with Defendant that the respective estates should remain in this litigation as parties in interest as ultimately one or both of the estates shall be distributing the assets.