MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) ONE HUNDRED AND NINTH LEGISLATURE Legislative Document No. I STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SEVENTY-NINE AN ACT to Establish the Maine Probate Code. Be it enacted by the People of the State of Maine, as follows: Sec.!. IS-A MRSA is enacted to read: TITLE IS-A MAINE PROBATE CODE ARTICLE I GENERAL PROVISIONS, DEFINITIONS AND JURISDICTION PART 1 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS § I-IOI. Short title This Act shall be known and may be cited as the Maine Probate Code. § 1-102. Purposes; rule of construction (a) This Code shall be liberally construed and applied to promote its underlying purposes and policies. (b) The underlying purposes and policies of this Code are: (I) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons; 2 LEGISLATIVE DOCUMENT No. (2) to discover and make effective the intent of a decedent in the dis­ tribution of his property; (3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors; (4) to facilitate use and enforcement of certain trusts; (5) to make uniform the law among the various jurisdictions. § 1-103. Supplementary general principles of law applicable Unless displaced by the particular provisions of this Code, the principles of law and equity supplement its provisions. § 1-104. Severability If any provision of this Code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid pro­ vision or application, and to this end the provisions of this Code are declared to be severable. § 1-105. Construction against implied repeal This Code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislatialn if it can reasonably be avoided. § 1-106. Effect of fraud and evasion Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circum­ vent the provisions or purposes of this Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brougllt against one not a perpetrator of the fraud later than 5 years after the time of commis­ sion of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate. UNIFORM PROBATE CODE COMMENT This is an overriding provision that provides an exception to the procedures and limitations provided in the Code. The remedy of a party wronged by fraud is intended to be supplementary to other protections provided in the Code and can be maintained outside the process of settlement of the estate. Thus, if a will which is known to be a forgery is probated informally, and the forgery is not discovered until after the period for contest has run, the de­ frauded heirs still could bring a fraud action under this section. Or if a will is fraudulently concealed after the testator's death and its existence not dis­ covered until after the basic three year period (section 3-r08) has elapsed, LEGISLATIVE DOCUMENT No. there still may ):>e all action under this section. Similarly, a closing statement normally provides binding protection for the personal representative after six months from filing (section 3-1005). However, if there is fraudulent misrepre­ sentation or concealment in the preparation of the claim, a later suit may be brought under this section against the personal representative for damages; or restitution may be obtained from those distributees who benefit by the fraud. In any case innocent purchasers for value are protected. Any action under this section is subject to usual rules of res judicata; thus, if a forged will has been informally probated, an heir discovers the forgery, and then there is a formal proceeding under section 3-1001 of which the heir is given notice, followed by an order of complete settlement of the estate, the heir could not bring a subsequent action under section 1-106 but would be bound by the litigation in which the issue could have been raised. The usual rules for securing relief for fraud on a court would govern, however. The final limitation in this section is designed to protect innnocent distribu­ tees after a reasonable period of time. There is no limit (other than the 2 years from discovery of the fraud) against the wrongdoer. But there ought to be some limit after which innocent persons who have built up expectations in good faith cannot be deprived of the property by a restitution action. The time of "discovery" of a fraud is a fact question to be determined in the individual case. In some situations persons may not actually know that a fraud has been perpetrated but have such strong suspicion and evidence that a court may conclude there has been a discovery of the fraud at that stage. On the other hand there is no duty to exercise reasonable care to discover fraud; the burden should not be on the heirs and devisees to check on the honesty of the other interested persons or the fiduciary. § 1-107. Evidence as to death or status In proceedings under this Code the rules of evidence in courts of general jurisdiction including any relating to simultaneous deaths, are applicable unless specifically displaced by the Code or by rules promulgated under sec­ tion 1-304. In addition, notwithstanding Title 22, section 2707. the following rules relating to determination of death and status are applicable: (I) a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent; (2) a certified or authenticated copy of any record or report of a govern­ mental agency. domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report; (3) a person who is absent for a continuous period of 5 years, during which he has not been heard from. and whose absence is not satisfactorily ex­ plained after diligent search or inquiry is presumed to be dead. His death 4 LEGISLATIVE DOCUMENT No. is presumed to have occurred at the end of the period unless there is suffi­ cient evidence for determining that death occurred earlier. UNIFORM PROBATE CODE COMMENT Subsection (3) is inconsistent with Section 1 of Uniform Absence as Evi­ dence of Death and Absentees' Property Act (1938). Proceedings to secure protection of property interests of an absent person may be commenced as provided in 5-401. The preliminary paragraph is designed to accommodate the Uniform Simul­ taneous Death Act, if it is a part of a state's law. MAINE COMMENT Maine change from Uniform Probate Code. Explicit reference is made in this section to Title 22, section 2707 to make it clear that Maine Probate Code, section 1-107, controls situations within its coverage to the extent that there may be any inconsistency between the effect given to records under this sec­ tion and the effect provided under Title 22, section 2707. § 1-108. Acts by holder of general power For the purpose of granting consent or approval with regard to the acts orl accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests, as objects, takers in default, or otherwise, are subject to the power. UNIFORM PROBATE CODE COMMENT The status of a holder of a general power in estate litigation is dealt with by section 1-403. This section permits the settlor of a revocable trust to excuse the trustee from registering the trust so long as the power of revocation continues. "General power," as used in this section, is intended to refer to the common law concept, rather than to tax or other statutory meanings. A general power, as used herein, is one which enables the power holder to draw absolute ownership to himself. § I-log. Married women's status The marriage of a woman shall have no effect on her legal capacity, nor on the rights, privileges, authority, duties or obligations of the married woman or of her husband under this Code, except as expressly provided by statute. LEGISLATIVE DOCUMENT No. 5 MAINE COMMENT General. This section was added to the Uniform Probate Code version in order to preserve in a general section the various provisions of married women's legislation and thus clarify that the repeal of any such provisions does not reenact the common law as to the status of married women.