from the Circuit Court for Allegany County. W. Timothy Finan,
JUDGMENT OF THE CIRCUIT COURT FOR ALLEGANY COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
BY: Michael A. Llewellyn (Geppert, McMullen, Paye & Getty on
the brief) all of Cumberland, MD. FOR APPELLANT
BY: Stephen C. Wilkinson of Cumberland, MD. FOR APPELLEE
BEFORE: Krauser, C.J., Berger, Zarnoch, Robert A., (Retired,
Specially Assigned), JJ.
Md.App. 702] Zarnoch, J.
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.
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. [227 Md.App. 703] 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, 97 A.3d 198, cert.
denied, 440 Md. 462, 103 A.3d 594 (2014).
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
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
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 [227 Md.App. 704] 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.
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. The orphans'
agreed with Green, admitted the 2009 Will to probate, and
appointed Andrew Green, Albert Green's son, as personal
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 [227 Md.App. 705] 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.
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. We affirmed the circuit court's
findings in a reported opinion, Green v. McClintock,
218 Md.App. 336, 97 A.3d 198, cert. denied, 440 Md.
462, 103 A.3d 594 (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.
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 [227 Md.App. 706] 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.
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.
§ 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 amend judgment. The court denied
the motion on
June 11, 2015, and Green filed this timely appeal on July 13,