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Green v. Nelson

Court of Special Appeals of Maryland

April 28, 2016

ALBERT GREEN
v.
DONALD NELSON, et al.

Krauser, C.J., Berger, Zarnoch, Robert A., (Retired, Specially Assigned), JJ.

OPINION

Zarnoch, J.

In this statute of limitations case, appellant Albert Green attempts to contest a will that was originally admitted to probate six years ago by the Orphans' Court for Allegany County. In 2003, the late Kenneth Green executed a will in which he made his friend, Betty McClintock, the prime beneficiary. In 2009, he executed a second will-later determined to have been procured by fraud and undue influence-in which he revoked the earlier will and gave all of his assets to his brother, Green. Apparently unaware of the second will, Linda Malamis and Donald Nelson ("appellees" or the "Estate"), filed a petition to open Kenneth's estate and to probate the earlier will. The orphans' court issued an administrative probate order appointing Nelson and Malamis as personal representatives, and admitted the earlier will to probate.

Almost two months later, Green petitioned the orphans' court for judicial probate, asserting that the second will was Kenneth's last will and testament. That will was also admitted to probate and a personal representative was appointed. McClintock challenged the second will, contending that it had been procured by fraud and undue influence. After a five-day hearing in the Circuit Court for Allegany County, the second will was found to have been fraudulently procured, a determination affirmed by this Court. See Green v. McClintock, 218 Md.App. 336, cert. denied, 440 Md. 462 (2014).

While the circuit court's finding of fraud was on appeal in this Court, Green filed a petition to caveat the 2003 will on September 3, 2013-almost three and a half years after the appointment of Malamis and Nelson under the earlier will. The orphans' court denied the petition as untimely. Green appealed, and the Circuit Court for Allegany County upheld the decision of the orphans' court. Green filed an appeal to this Court on July 13, 2015, and presents the following question for our review:

"Whether the Circuit Court incorrectly determined, as a matter of law, that the Petition to Caveat was untimely filed."

Because the plain language of § 5-207 of the Estates and Trusts Article ("E.T.") of the Maryland Code (1974, 2011 Repl. Vol.) requires that a caveat be filed within six months of the appointment of personal representatives under the will, we hold that Green's petition to caveat the earlier will was not timely filed, and affirm the judgment of the circuit court.

BACKGROUND

In 2003, the decedent, Kenneth Green, executed a will (the "2003 Will") in which he made his friend, Betty McClintock, the prime beneficiary. Their friendship continued, and in 2006, when Kenneth was diagnosed with cancer, McClintock took him to his chemotherapy treatments. After a relapse in 2009, Kenneth was in a great deal of pain and was prescribed opiate medication. While ill, his brother, Albert Green, took him from Maryland to Kentucky and held him there incommunicado. In Kentucky, Kenneth executed a second will (the "2009 Will") revoking the earlier will and giving all of his assets to his brother, even though he had an acrimonious relationship with the Green family and had previously instructed Malamis and Nelson, that he wanted McClintock to inherit all of his assets and that he wanted to leave nothing to his brother and his family. On September 3, 2009, Albert Green filed the 2009 Will with the Register of Wills for Allegany County for safekeeping. Kenneth died at his brother's home in Kentucky on January 19, 2010.

On April 5, 2010, Malamis and Nelson filed a petition to open Kenneth's estate, seeking to probate the 2003 Will, and, that day, the orphans' court issued an administrative probate order appointing Nelson and Malamis as personal representatives, and admitted the 2003 Will to probate. Green was listed as an heir and received notice of the probate proceeding via mail, which advised that "All persons having any objection to the appointment (or to the probate of the decedent's will) shall file their objections with the Register of Wills on or before the 5th day of October, 2010." Rather than filing a petition to caveat the 2003 Will, on May 21, 2010, Green petitioned the orphans' court for judicial probate asserting that the 2009 Will was Kenneth's last will and testament.[1]The orphans' court apparently agreed with Green, admitted the 2009 Will to probate, and appointed Andrew Green, Albert Green's son, as personal representative.[2]

On September 9, 2010, McClintock filed a petition to caveat the 2009 Will, alleging that the will was procured as a result of fraud, undue influence, or duress imposed by Green or Green's family members, and asserted that the 2003 Will was, in fact, Kenneth's last will and testament. McClintock, a friend, was not an heir at law, and was only able to file her caveat as a legatee under the 2003 Will. Accordingly, the petition requested that the court "pass an Order admitting to probate the Will of March 5, 2003, as being the valid Last Will and Testament" of the decedent. Andrew, acting for the Estate, petitioned to transfer the caveat proceeding to the circuit court in accordance with Maryland Rule 6-434, which allows the orphans' court to transmit contested issues of fact for trial in the circuit court. However, the only issues presented to the circuit court were those related to the validity of the 2009 Will. The Greens did not contest the validity of the 2003 Will.

After a five-day hearing, the Circuit Court for Allegany County found the 2009 Will to have been procured by fraud and undue influence, as a result of Kenneth's poor health, prescription drug use, and Albert's behavior, which included, among other things, misuse of Kenneth's funds and sequestering Kenneth from his friends in Maryland.[3] We affirmed the circuit court's findings in a reported opinion, Green v. McClintock, 218 Md.App. 336, cert. denied, 440 Md. 462 (2014). The 2003 Will then became the decedent's last will and testament, pursuant to an order issued by the orphans' court on July 16, 2013. The orphans' court also appointed Malamis and Nelson as special administrators of the estate.[4]

Almost three and a half years after the initial appointment of Malamis and Nelson under the 2003 Will and three years after the deadline to caveat, Albert Green filed a petition to caveat the 2003 Will, asserting that the will "was not executed by the decedent or the execution of the 2003 Will was procured by fraud, duress and/or undue influence." He requested that the court declare the estate intestate, presumably because he would be entitled to the proceeds of the estate as Kenneth's only living heir.

The orphans' court denied the petition on September 17, 2013. Unaware of the orphans' court decision, on September 19, 2013, Nelson opposed the caveat as untimely filed under E.T. ยง 5-207-the same ground relied upon by the orphans' court. The Circuit Court for Allegany County upheld the decision of the orphans' court on April 30, 2015. Within 10 days of the entry of the circuit court decision, Green filed a motion to alter and ...


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