The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
DOCKET NO CV-Of'-31~
vV~A - P£N- ?,j2._-:L/201L
MICHAEL P. WEATHERBEE et al.,
Plaintiff,
v. JUDGMENT
PEGGY McPIKE, et al.,
Defendant.
A five-day trial was completed and written argument submitted by August 1,
2011. The plaintiffs were present and represented by counsel, Charles Gilbert, Esq.,
while the defendant was present and represented by counsel, Frank McGuire, Esq. In
this litigation, Michael Weatherbee, individually, and as next friend and co-guardian of
his mother Helen Weatherbee, asserts various claims against his sister, Peggy McPike
and Michael Griffin, as personal representative of the estate of Clarence Weatherbee. To
simplify, Michael Weatherbee claims that his sister, while having a confidential
relationship with the parties' aging parents, Clarence and Helen, appropriated their
money and property for her personal benefit.
FACTS
In this section, the Court will concentrate on describing the mental and
psychological condition of the parties' parents during the relevant years of 2001 and
2002. It will also chronicle Ms. McPike's use of her parents' bank accounts in those years
and, to a lesser extent, discuss the disposition of their personal property.
I. CLARENCE AND HELEN WEATHERBEE
Clarence and Helen Weatherbee resided in Lincoln, Maine, and had two
children, plaintiff Michael Weatherbee and defendant Peggy McPike. Clarence had
been a probation officer and Helen had been a public health nurse prior to their
1
retirement. After retirement, they continued to reside in Lincoln, and had frequent
contact with their daughter, Peggy, who lived in Bangor and taught school in
Mattawamkeag. Michael was a lawyer who resided in Virginia, but he made annual
visits to Maine to visit his parents.
Michael, accompanied by his wife and daughters, came to Lincoln to visit with
his parents for the 1999 Christmas holidays. Clarence and Helen met them at the
airport. Helen was inappropriately dressed in pajama bottoms and slippers, and was
not wearing her false teeth. Clarence was wearing shoes, but no socks and Michael
noticed the smell of urine when in their presence. They drove to the family home in
Lincoln, which was a mess, with dirty laundry and dishes everywhere and rotten food
in the refrigerator. They spent several days cleaning the house. In the process of
cleaning, plaintiff's wife found over $9,000 in cash in a sock, which was turned over to
defendant. During this visit, Michael caused his mother to receive medical attention.
Although she was anemic, had a substantial rash and had other conditions, there is no
notation of cognitive impairment in the record related to this appointment. Eventually,
it was discovered that she suffered from hypothyroidism, a significant cause of her
deteriorated physical condition. Michael persuaded his mother to travel with him to
Virginia to stay with his family so that she could receive necessary medical attention
and supervision. Clarence refused to leave Lincoln. Helen stayed in Virginia until
March and during her visit, she gained weight and strength and her physical condition
improved. During Helen's stay in Virginia, Michael and his wife noticed that she was
developing some cognitive problems, evidenced by her wandering at night, wanting to
go to church in the middle of the night. She was also unable to regularly remember her
granddaughters' names. While his wife was in Virginia, Clarence frequently searched
for her, apparently forgetting where she was.
2
After she returned to Lincoln, Helen, accompanied by Clarence, frequently
walked around the town at all hours of the night. Cynthia Coombs, who had been hired
as a house cleaner, began to provide care for Clarence and Helen, staying for five to six
hours per day. 1 During her period of employment, Clarence had been relieved of his
driving privileges even though he had traded in his old pick-up for a new Dodge pick-
up in August of 2001. Soon thereafter, Michael and Peggy took the keys away from him
because they perceived he could no longer drive safely. 2 After this, he frequently went
to the Dodge dealer asking for his keys, apparently forgetting that his children had
taken them. Clarence would also go to town frequently to register his truck and see the
"tax man." In July of 2001, Helen left Ms. McPike's home in the middle of the night and
wandered around the city of Bangor. The police noticed her and transported her to the
station and called Ms. McPike who drove there and picked up her mother. At this time
she filled out an "Application for the Alzeimer and Eldercare Patient Listing Database"
for both parents, a form that provides identification information about the subject of the
application and provides contact information for the care provider. Ms. Coombs left this
job in 2002 and, during the period of her employment, the cognitive functioning of both
Helen and Clarence diminished. Ms. McPike paid Ms. Coombs by check and with cash.
During the fall of 2001 and early spring of 2002, Delia Doan also provided care
for Helen and Clarence. She took them for trips and for meals and was careful to make
sure they were dressed appropriately for the weather. In the beginning of her service,
Clarence and Helen could carry on a conversation, but they deteriorated, and near the
end, they were unable to do so. Ms. McPike paid Ms. Doan primarily in cash, on
1
The first check for payment of services was written to Ms. Coombs in April of 2001, indicating
that she was employed in at least a cleaning capacity by then.
2
Additionally, his license and right to operate were suspended in 2001.
3
occasion as much as $500 per week, plus reimbursement for meals and driving. Both
Ms. Doan and Ms. Coombs found relatively large amounts of cash lying around the
Weatherbee residence.
Jane Weatherbee and her niece Suzanne Krapf provided care for Helen and
Clarence from January of 2002 until they were admitted to a nursing home soon after
the 4th of July of that year. They needed to make sure that Clarence and Helen were
supervised, occupied, properly dressed, and properly fed. For approximately one-half
of this period of time, Clarence and Helen were supervised for twenty-four hours each
day and for the remainder, they were supervised during the days only, for about nine
hours. When only one was present because the other was in the hospital or elsewhere,
Ms. McPike arranged for daytime supervision only, because one was not a threat to
wander away at night, although at nighttime the stove use was a danger because
Clarence frequently tinkered with it. When Clarence and Helen were together, their
leaving the home at night was a constant problem and members of the community and
ambulance personnel frequently returned them to their home. Several times each day,
Clarence had the care provider drive Helen and him to get his keys, see the "tax man",
and go to church, without protest from Helen. Ms. McPike paid Ms. Jane Weatherbee
$10 per hour during the day and $7 per hour at night, and Ms. Krapf earned
approximately $100 per week during this time period.
As early as July of 2000, medical records related to an admission for abdominal
pain indicate that the assessment of the doctor who examined Clarence included
dementia as an existing condition. It was recommended at that time that he be assessed
for "competency to make adequate decisions about self care issues." Pl. Ex. #2-G. At the
time of this hospital admission, Ms. McPike indicated to medical personnel "that there
are issues as to whether or not the patient and his wife can continue to remain living as
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independently as they are." Pl. Ex. #2-I. In August of 2000, Ms. McPike raised the issue
of dementia with Clarence's physician, Scott Bennett, D.O., Pl. Ex. #2-S., and at that
time, the doctor noted that Clarence was disoriented as to time and place. In April of
2001 Dr. Bennett prescribed a medication for Clarence to see if it would help his mood
and temper. Pl. Ex. #2-0. In October of 2001, Ms. McPike brought her father for a
dementia follow-up appointment. She told the doctor of her father's compulsive need to
check on his taxes and find his truck keys, and indicated that the medication that had
been tried made him worse. At that time, Dr. Bennett assessed Clarence as having senile
dementia. Pl. Ex. #2-T. From then on, medical records included Alzheimer's disease or
dementia in Clarence Weatherbee's assessments, and by July of 2002, it was obvious
that Clarence needed to be cared for in a skilled nursing facility, and was admitted to
Westgate Manor.
Any reference to dementia first appears in Helen Weatherbee's medical record
on April27, 2000 when Ms. McPike called Helen's physician, Dr. Renner to report that
Helen was very confused. After an examination, Dr. Renner's assessment was: "likely
mild dementia." On February 15, 2001, Ms. McPike brought Helen to Dr. Renner
because of "confusion and not eating." Dr. Renner conducted an examination during
which Helen was unable to perform the "count up the change test." Dr. Renner ruled
out vitamin B-12 deficiency, suspected by Ms. McPike, as a cause, and determined that
further examination was needed. Pl. Ex. #1-KK. After conducting a physical
examination of Helen on April 6. 2001, Dr. Renner added a new problem of early
dementia to her assessment and plan. Pl. Ex. #1-LL. On September 10, 2001, Helen
Weatherbee went to the hospital complaining of headache and dizziness. She was
evaluated by a social services nurse who assessed her as having dementia and who
indicated that a referral to Adult Protective Services was appropriate. Pl. Ex. #1-E. On
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October 1, 2001, Ms. McPike went to the same hospital to provide emergency room staff
information about her mother, stating that she was "well aware of her parents' mental
status and is going to call M. Corbin, LSW, tomorrow for help." Pl. Ex. #1-G. On
November 2, 2011, Ms. McPike contacted Helen's physician to tell him of aspects of
Helen's behavior that caused her great concern. He indicated in his medical report of
this contact that that "this pts (sic) dementia behaviors sound consistent with
alzheimer's to me." PI Ex. #1-PP. In March of 2002, a neuropsychologist conducted a
thorough neuropsychological examination of Helen and concluded that she had been
suffering from dementia. Pl. Ex. #1-P. Although it was recommended that Helen be
transferred to a nursing facility, Ms. McPike elected to have her return to her home in
Lincoln with 24-hour care. By July, that alternative became untenable, and Helen was
transported to Westgate Manor, the skilled nursing facility where Clarence was
residing.
II. FINANCIAL TRANSACTIONS
Ms. McPike, who, with Michael Weatherbee's consent, possessed her mother's
power of attorney, began writing checks on Helen Weatherbee's accounts in February
of 2001. She wrote the checks infrequently and for small amounts. In April of that year,
plaintiff and defendant met with the their parents' investment advisor and became
aware of the extent of their parents' significant assets. During that month, Ms. McPike
wrote 6 checks to cash, drawn on her mother's account, totaling $450. In May, she wrote
checks to cash from that account totaling $2,065. Ms. McPike maintains that she used
the cash to make purchases for her parents, and to pay Cindy Coombs for their in-home
care.
In June of that year, the McPike's son Noah graduated from high school.
Clarence and Helen Weatherbee were proud of this grandson and were supportive of
6
his decision to attend the College of Holy Cross, an expensive, private college. On June
22, 2001, Ms. McPike wrote a check to cash on her mother's account ending in 808 at the
Bangor Savings Bank (BSB) for $7,000, writing "attorney fees" on the memo line. On
July 9, 2001 Ms. McPike wrote a· check for cash in the amount of $7,000 drawn on her
father's account ending in 616 at BSB and on July 12, she wrote a check for cash in the
amount of $5,000 on her mother's account at BSB ending in 702. On July 26, she wrote a
check for cash in the amount of $5,000, drawn on Clarence's account ending in 616 and
also a check for cash in the same amount on Helen's account ending in 808. Finally, for
the purpose of this segment of analysis, on August 10, 2001, Ms. McPike wrote a check
for cash in the amount of $4,500 on Clarence's 616 account and one in the amount of
$10,000 on Helen's 702 account.
It is clear that Ms. McPike cashed all of these checks and deposited the proceeds
into accounts in her name. She maintains that most of these funds were gifts from her
parents to her son Noah, to be used to pay for his Holy Cross education and that the
check with the attorney fees memo was for attorney fees, but she can provide no
specifics. She also asserts that her parents were present for the gift withdrawals and
that she withdrew the funds in their presence and then handed the money to her
parents who handed it back to her. Through August 10, 2001, Clarence Weatherbee had
been routinely signing his own checks drawn on account 616, with only five exceptions:
the aforementioned three checks totaling $16,500 as well as two checks written to the
University of Maine for hockey season tickets- all five written by Ms. McPike.
Additionally, most checks drawn on Helen's accounts during this time frame were
purportedly signed by her; however, Ms. McPike signed the aforementioned checks for
cash. Although Clarence and Helen paid most expenses during this time period by
numbered personal check, Ms. McPike obtained the disputed cash by using counter
7
checks or debit memos only, and not by using a numbered personal check from a
checkbook in the possession of Helen or Clarence.
A review of tuition payment records from Holy Cross indicates that Noah's
education was funded primarily by the proceeds of grants and loans. The only funds
paid by the student were $10,000 on July 18, 2001, $800 in the spring of 2002, $5,783.48
in August of 2002, and $744.57 in February of 2003, as well as a few miscellaneous
payments of less that $100. Ms. McPike did not explain why the Holy Cross records do
not contain higher payments by the student.
In October of 2001, Ms. McPike began to increase the frequency with which she
wrote checks to cash drawn on her parents' accounts. In that month she cashed a check
for $500 on her mother's checking account and a corresponding check in the same
amount for $500 on her father's checking account. For the month of November, she
made two $500 cash withdrawals from her mother's account and corresponding
withdrawals from her father's account, and in December she made three withdrawals
totaling $1,900 from her mother's account and withdrawals, identical in amount and
date, from her father's account. She asserts that she kept these withdrawals, but used
the money for the benefit of her parents only. Plaintiff does not formally question these
transactions. In the ensuing months prior to the admission of her parents to Westgate
Manor, Ms. McPike withdrew, usually by writing checks to cash, the following sums
from her parents' accounts:
December .. $3,800
January .... $6,300
February .... $6,700
March ........ $11,300
April. ........ $9,000
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May .......... $9,000
June .......... $ 9,200
In each of these months, when Ms. McPike cashed a check on one parent's account, she
cashed a check, identical in amount and date, on the other parent's account, with one
exception when the value differed only by $200. Additionally, all of these transactions
were accomplished with the use of counter checks and debit memos. She did not cash
any personal checks issued to the parent as part of a checkbook. 3
Ms. McPike engaged in a similar pattern after her parents were both in Westgate
Manor in early July, continuing to write checks for cash on her parents' accounts. The
totals are as follows:
July ......... $9,000
August ...... $9,000
September .. $5,400
October ..... $1,800
November .. $4,200
December ... $3,800
Ms. McPike continued to follow the practice of using only counter checks and debit
memos to withdraw the funds and withdrew identical amounts from each account on
the same dates. Ms. McPike insists that all sums were used to benefit her parents even
though she has no records supporting that contention.
3
These totals differ slightly from those proposed by plaintiff's counsel. It is the Court's belief
that he included checks written for cash in similar amounts that were signed by Clarence or
Helen. The Court has not included those checks in its totals because Ms. McPike admitted taking
the cash from the checks she signed with power of attorney.
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ANALYSIS
The Complaint in this case contains seven counts. It is difficult for the Court to
construe some of them. Counts I, II, and III, in which Michael Weatherbee, and Michael
Griffin as Personal Representative of the Estate of Helen Weatherbee are plaintiffs, 4
relate to the affairs of Helen Weatherbee, who was living when the complaint was filed.
In Count I, plaintiffs seek an accounting and restitution and assert that the defendant
used her relationship of trust and confidence to exercise power, control, and dominion
over Helen Weatherbee's money and has used and applied those funds for her own
benefit. Count II is brought under the improvident transfer statute, and Count III seeks
the imposition of a constructive trust, alleging that Ms. McPike had a close confidential
relationship with her mother and took advantage of that relationship to exercise undue
influence over her affairs and thereby receive a direct financial benefit. In Counts IV-
VII, Michael Weatherbee, personally, is the only named plaintiff and the defendants are
Peggy McPike and Michael Griffin as Personal Representative of the Estate of Clarence
Weatherbee. 5 These counts relate to the affairs of Clarence Weatherbee, who was
deceased when the complaint was filed. Count IV, in which plaintiff seeks restitution
and incidental and consequential damages, asserts that Ms. McPike, using her close and
confidential relationship with her father, diverted and applied to her own use large
sums of money and property from him. In this count he also asserts that he is an heir of
4
Originally, the plaintiffs included Michael Weatherbee as next friend and co-guardian of Helen
Weatherbee. After Helen died, defendant filed a suggestion of death which eliminated her,
personally, as a party. M.R. Civ. P 25(a)(2). Her estate, through Michael Griffin, then joined as
a plaintiff in Counts I, II, and III only.
5
Although Michael Griffin as Personal Representative of Clarence Weatherbee is ostensibly a
defendant with regard to Counts IV-VII in this litigation, plaintiff has joined him in this capacity
because that party did not want to enter those counts as a plaintiff. Pursuant to M.R. Civ. P.
19(a), and based on the representations of plaintiff's counsel, the Court will consider Clarence
Weatherbee's estate as a plaintiff in deciding the issues in this case.
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his father and Ms. McPike's actions diminished the amount of property in his father's
estate that was available to him. Count Vis identical, except in this count plaintiff seeks
the establishment of a constructive trust, Count VI alleges interference with the
reasonable expectation of a legacy, and Count VII alleges a statutory improvident
transfer.
I. THE HELEN WEATHERBEE COUNTS
A. THE PARTIES
The complaint alleges three different individuals or entities as plaintiffs in these
causes of action: Michael Weatherbee, Michael Weatherbee as next friend and co-
guardian of Helen Weatherbee, and Michael Griffin as personal representative of the
Estate of Helen Weatherbee. In the absence of a personal claim for damages such as
tortious interference with the expectation of a legacy, Michael Weatherbee, personally,
has no standing to bring these causes of action. Although a significant issue exists
concerning whether Michael Weatherbee as co-guardian had authority to commence
this suit while Helen Weatherbee was alive, she is now deceased and eliminated as a
party. Mr. Griffin is the personal representative of the estate of Helen Weatherbee and
has standing to bring Counts I, II, and III under 18-A M.R.S. § 3-715 and 33 M.R.S. §
1023 (1). The Court recognizes the latter as the only plaintiff with standing to prosecute
these counts involving Helen Weatherbee.
B. THE CAUSES OF ACTION
Count II of the complaint clearly expresses a statutory claim under 33 M.R.S. §§
1021-1025. Count III expresses a claim for abuse of confidential relationship by undue
influence. The cause of action expressed in Count I, however, is less clear. In this count,
the plaintiff states that Helen Weatherbee had experienced a decline that had made it
impossible to manage her affairs. It is then alleged that Ms. McPike, using her
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relationship of trust and confidence, exercised power and control over Helen's money,
and used and applied Helen's money and property for her own benefit. As a remedy,
the plaintiff asks for an accounting and that defendant "restore and make restitution of
such funds as she cannot properly account for." Missing from this count are the words
"undue influence" and notable is the claim that Ms. McPike exercised power and
control over Helen Weatherbee's money and applied it for her own benefit. Read in this
manner, the Court construes the reference to Helen Weatherbee's impaired condition as
being relevant to how the defendant applied Helen's money for the defendant's benefit,
and not as a cryptic allegation of undue influence, which is not mentioned.
The remedy of restitution is grounded in the need to prevent unjust enrichment,
unjust enrichment being a necessary prerequisite to restitution. Horton and McGehee,
Maine Civil Remedies§ 7-1 at 173 (4th ed. 2004). For restitution to be available as a
remedy, therefor, a plaintiff must prove the elements of unjust enrichment, which
include (1) that the plaintiff conferred a benefit on the defendant; (2) that the defendant
appreciated or had knowledge of the benefit; and (3) that the retention of the benefit
was under circumstances as to make it inequitable for defendant to retain it without
payment for the value conferred. Estate ofWhite, 521 A.2d 1180, 1183 (Me. 1987).
Although there was no explicit recitation of these elements in the complaint, one could
glean from Count I that plaintiff was alleging that Ms. McPike had somehow exercised
authority over her incompetent mother's money and property, and retained it for her
own benefit. There is no overt assertion that she persuaded her mother to give her the
money or property, as in an undue influence claim, but present is an assertion that Ms.
Weatherbee conferred a benefit, money and property, to her daughter, who obviously
was aware of the benefit, and that it was inequitable to retain the money or property.
Based on this analysis, the Court construes Count I as a claim for unjust enrichment.
12
II. THE CLARENCE WEATHERBEE COUNTS
A. THE PARTIES
Michael Weatherbee, individually, is the plaintiff in these claims against Ms.
McPike and the Court considers the Estate of Clarence Weatherbee as a plaintiff as
well. 6 Michael Weatherbee does not have standing to bring any of the causes of action
expressed in Counts IV, V, and VII. He has standing to bring count VI, tortious
interference with the expectation of a legacy, because this cause of action authorizes the
recovery of damages by the person whose legacy is involved, which could be either
Michael Weatherbee, or the Estate of Helen Weatherbee, since both were heirs of
Clarence Weatherbee. The Estate of Clarence Weatherbee is a plaintiff in all four counts.
B. THE CAUSES OF ACTION
In Count IV, the plaintiff loosely parallels the claim in Count I, and the Court
construes this as a claim of unjust enrichment in which restitution is sought. Although it
contains such phrases as "using her close and confidential relationship" and alleges that
Clarence Weatherbee was unable to properly manage his affairs, or appropriately make
gifts, it does not allege that Ms. McPike benefitted from actual undue influence. Instead
plaintiff asserts that Ms. McPike diverted money and property and applied it to her
own personal use. Later, in paragraphs 23 and 24 of the complaint, plaintiff describes
Ms. McPike's activities as diverting and misappropriating Clarence Weatherbee's funds
and property. In this count, plaintiff asks that funds be restored to the estate of Clarence
Weatherbee. Count V alleges what is contained in Count IV, but plaintiff requests that
the Court impose a constructive trust for the benefit of Michael Weatherbee and Helen
6
Although plaintiff mentions M.R. Civ. P 19(a) only in paragraph 19 of Count IV, he
incorporates that paragraph by reference in the ensuing three counts. Because of this, the Court
treats the Estate of Clarence Weatherbee as a plaintiff in Counts IV-VII.
13
Weatherbee. In Count VI, plaintiffs clearly allege a tortious and wrongful interference
with the expectation of a legacy, and in Count VII, plaintiff alleges the statutory claim
under 33M.R.S. §§ 1021-1025.
III. CHARACTERIZING THE DISPUTED TRANSACTIONS
The subjects of these causes of action are the many transactions, conducted
under differing circumstances, in which Ms. McPike used checks or debit memos to
withdraw money from the accounts of both Helen and Clarence Weatherbee. To decide
the issues raised, the Court must decide several questions, including whether any of the
withdrawals constituted appropriate gifts from individuals capable of forming
appropriate donative intent, and whether the transactions that purportedly benefited
Helen and Clarence in fact benefited them, or whether Ms. McPike diverted the funds
for her own benefit. To decide all of the issues raised in the nuanced counts of the
complaint, the Court must characterize the transactions that are in dispute.
A. LARGE CASH TRANSACTIONS FROM JUNE THROUGH AUGUST, 2001
During this period of time, Ms. McPike wrote seven large checks or debit memos.
on her parents' bank accounts at the Bangor Savings Bank, using power of attorney
authority. She wrote three checks on her father's account totaling $16,500 and five
checks on her mother's two accounts totaling $27,000. She deposited the total, $43,5000
into her personal account. Ms. McPike testified that this money constituted gifts from
her parents for the education of her son, Noah. When confronted with the fact that one
of the checks, had an "attorney fees" memo, she indicated that this $7,000 was used for
attorney fees but couldn't indicate what attorney was paid and what services were
rendered. When asked why one of the transactions by debit memo contained a memo
saying "to purchase T / C", she couldn't explain the memo. She has alternatively
14
testified that some of the funds were to pay for her parents' expenses, such paying for
caregivers.
The Court finds that the sums described above were not gifts from the Helen and
Clarence Weatherbee to finance Noah's education, for the following reasons:
1. During the relevant time period, Clarence and Helen, themselves, were writing
checks for routine expenses. With the exception of two payments for University of
Maine hockey season tickets written by Ms. McPike, the first checks drawn on
Clarence's account that he did not write personally were these three disputed checks.
Helen, herself, wrote almost all of the checks drawn on her accounts, with the exception
of the five disputed checks and a few others. If they intended to give money to Ms.
McPike for Noah's education, one would expect that they wouldn't have used such a
curious method. Consistent with their practice at the time, they could have written the
checks, cashed them, and given Ms. McPike the proceeds, or they could have written
the checks directly to the college.
2. There was no legitimate reason to conduct the disputed transactions by using
teller checks and debit memos. This fact increases the likelihood that such instruments
were used because Ms. McPike in fact did not have easy checkbook access for this
purpose.
3. There was no valid reason to write the checks to cash, as opposed to the
intended recipient, unless Ms. McPike was the sole intended recipient and she wanted
to conceal the transaction. Although Ms. McPike testified that the transactions were
accomplished in this manner because of her potential embarrassment if her brother had
learned of the alleged gifts to Noah, it is more likely that her motive was to make it less
likely that her use of her parents' money would be detected at all.
15
4. Only $10,000 of the proceeds of the disputed checks was actually used to pay
for Noah's education in 2001, and, at most, $5,000 was used in a subsequent year,
although the source of that payment is unclear.
5. The scenario of withdrawing money, giving it to her parents followed by their
giving it back to her seems contrived.
6. In addition to describing these transactions as gifts, Ms. McPike insisted that
one of the transactions was for attorney fees, but was unable to provide the name of the
attorney or the source of the debt. The Court finds this testimony to lack credibility.
7. Ms. McPike stated that some of the money may have been spent on care
providers and other legitimate expenses related to the care of her parents. The Court
has reviewed bank records and the testimony of those who provided such services at
the time and can discern the existence of no legitimate expenses of a magnitude that
would relate to such transactions.
Alternatively, even if the Court found that Clarence and Helen articulated that
they wanted to help with Noah's education and participated in these transactions for
that purpose, they were in no condition to properly decide to give thousands of dollars
in gifts and, thus, capable of being improperly influenced.
During the plaintiff's visit to Maine during the Christmas holidays in 1999,
Clarence and Helen were inadequately and inappropriately dressed when they picked
up plaintiff and his family at the airport. The family home was a mess and in great need
of cleaning. During the process of cleaning the house plaintiff's wife found $9,000 in
cash under circumstances that implied that Helen had once hidden the money but had
not been capable of remembering its location or existence. During Helen's stay in
Virginia, she clearly exhibited cognitive problems, such as wandering at night, wanting
to go to church in the middle of the night, and an inability to remember her
16
granddaughters' names. While Helen was in Virginia, Clarence remained in Maine ,
frequently looking for Helen and asking where she was, even though he had been told
that she was going with plaintiff to Virginia in order to recover her strength. Although
Helen's physical condition improved and she returned to Lincoln, she and Clarence
continued to walk around town aimlessly, and at all hours. Ms. McPike was aware of
this behavior. By the spring of 2001, Clarence had lost his driving privileges and
plaintiff and defendant took his truck keys from him. During the time period in which
Clarence was allegedly capable of making appropriate gifts for Noah's education, he
was constantly looking for these keys at the truck dealership and frequently going to
town to see the "tax man" even though he had paid his taxes. During this period of
time, Helen stayed with Ms. McPike for a while, and walked out of the home at night
and was picked up by the police who transported her to the police station. The police
contacted Ms. McPike who picked up her mother and filled out an application for the
entry of data concerning both parents into a police Alzheimers database. It is clear that
Ms. McPike was aware of the impaired functioning of her parents in the spring and
summer of 2001 and had knowledge of the behaviors that evidence the impairment.
As early as July of 2000, when Clarence went to the hospital for an unrelated
matter, the doctor who assessed him listed dementia as an existing condition and
recommended that Clarence be assessed for competency to care for himself. At this
time, Ms. McPike indicated to those treating her father she recognized that there were
issues as to whether her parents could continue to remain living independently. In
April of 2001, Clarence had an appointment with Dr. Bennett who indicated that the
patient was disoriented as to time and place, and prescribed a medication to improve
his mood. During a follow up appointment in October, the condition had not improved
and Dr. Bennett assessed Clarence as having senile dementia, a diagnosis he carried
17
throughout the future. Between these visits to the doctor, Clarence allegedly made
appropriate gifts of $16,500 to Ms. McPike.
Helen's medical record first refers to dementia in April of 2000 when Ms. McPike
called Dr. Renner, Helen's physician, indicating that Helen was very confused. Dr.
Renner conducted an examination and his assessment was likely mild dementia. In
April of 2001, Dr. Renner assessed her again and added early dementia to her
assessment plan. By September of 2001, when Helen went to the hospital for dizziness, a
social services nurse assessed her as having dementia and indicated that an adult
protective services referral was appropriate. This was one month after Ms. McPike
received the last installment of $27,000 in alleged gifts from Helen. In October of 2001
Ms. McPike indicated to hospital staff that she was well aware of her parents' mental
status and was going to call a licensed clinical social worker for help. By November 2,
2001, Helen's physician wrote in a medical report that Helen's "dementia behaviors"
sounded consistent with Alzheimer's disease.
This factual summary demonstrates that in the spring and summer of 2001, Ms.
McPike was aware of the behavior of her parents that would call their cognitive
functioning into question and was also aware of the opinions of medical professionals
who treated her parents and determined that Helen and Clarence were suffering from
progressive stages of dementia and/ or Alzheimer's disease. Under these circumstances,
this Court finds that Ms. McPike's retention of large gifts was unjust. The Court also
·finds that, because of their diminished capacity, Helen and Clarence Weatherbee were
capable of easily being influenced by others.
B. REMAINING FINANCIAL TRANSACTIONS
The remaining questioned financial transactions concern the checks that Ms.
McPike regularly wrote to cash during 2002, both before and after her parents entered a
18
nursing home in July of that year. In the first six months of that year, Ms. McPike wrote
checks to cash, and cashed them, in amounts totaling $51,500. Between July and
December of 2002, Ms. McPike wrote checks to cash, and cashed them, in amounts
totaling $33,200. To evaluate whether Ms. McPike used this money to benefit her
parents, the Court will analyze expenditures for those two periods.
In the six months prior to the admission of Clarence and Helen Weatherbee to a
nursing home in early July of 2002, legitimate expenditures for their care included the
normal expenditures for necessities, such as food, fuel, taxes, insurance, utilities, and
general spending, as well payment for their care. The Court has reviewed the checking
account records for 2001 and 2002 and notes that while Ms. McPike was cashing the
questioned checks written to cash in 2002, she, Helen, and Clarence also were writing
the same types of checks to pay for living expenses as had been written in 2001. In other
words, in both 2001 and 2002, checks were written to pay for taxes, insurance, fuel oil,
prescriptions, utilities, similar expenses. In 2001, the checks written to cash were for
modest sums, seldom exceeding $150, however in 2002, as already described, the checks
written to cash were for much larger sums. The only rational explanation for this
greater expense is that in 2002 it was necessary to pay for the in-home care of Clarence
and Helen, while in 2001, the expense related to their care was relatively insignificant.
Because the expense related to their care was, in fact, insignificant in 2001, the Court
will examine the need to pay far greater amounts in 2002 in detail.
Initially, Ms. McPike hired Cynthia Coombs to do house cleaning for the parties'
parents in 2001. Because of the unfolding need to provide appropriate care and
supervision for Clarence and Helen, this service morphed into providing in-home care
for them. Ms. Coombs worked in this capacity until taking a full-time position as a
custodian sometime in 2002. During this time period, Delia Doane also provided care
19
for Helen and Clarence, into the spring of 2002. Ms. McPike paid Ms. Doane $10 per
hour, in cash. She earned at least $100 per week and on occasion she provided
overnight care and was paid as much as $500 per week. At the time of the 2001
Christmas holidays, Ms. McPike hired Jane Weatherbee to care for Clarence and Helen,
Jane Weatherbee's aunt and uncle. Suzanne Krapf, another niece of Clarence and
Helen, assisted Jane Weatherbee, who paid Ms. Krapf approximately $100 each week
for providing supervision and care. Because there was overlapping care provided and a
combination of caregivers providing services on a given day, one cannot simply
multiply the average daily pay of a care provider times the number of days in the
months of January through June of 2002 to estimate a total expenditure related to care.
At times each worked on the same day, one being paid for daytime supervision and the
other being paid for nighttime supervision.
Jane Weatherbee was the primary care provider in early 2002. She testified that
sometime during the winter of 2002, after the police indicated that an adult protection
referral would have to be made because they were encountering Helen and Clarence
wandering around the community at night while improperly clothed, Ms. McPike
arranged for 24-hour care for the parties' parents. Generally, the daytime provider was
paid $10 per hour and the nighttime provider was paid $7 per hour, in cash, with no
form of payroll deduction. Once 24-hour supervision commenced, it was needed when
both Clarence and Helen were in their Lincoln home, but if either was not present, such
as when one or the other was in the hospital, only daytime care was provided. It is
difficult to assess how much money Ms. McPike spent of this service, but, recognizing
that the burden of proof is on the plaintiff, the Court determines that for the months of
January through June of 2002, overnight supervision was required two thirds of the
time and the cost of daytime care was approximately $100 ($10 x 10) and the cost of the
20
longer nighttime care was also approximately $100 ($7 x14). In the average 30-day
period, this would result in an expenditure of $5,000. If the Court also allowed a liberal
expense allowance for the providers and for Ms. McPike, the total for the period would
be $6,000. Under no circumstances can the Court conclude that expenditures such as the
$11,300 for the month of March were entirely for the benefit of Clarence and Helen
Weatherbee. Since the Court has found that the "legitimate" expenses for these six
months amount to $36,000, and Ms. McPike wrote checks to cash totaling $51,500, this
Court finds that $15,500 of the total benefited Ms. McPike personally, not her parents.
The need to write checks to cash to provide care for the parties' parents
diminished drastically in early July when Clarence and Helen began residing in a
nursing home. Ms. McPike paid the nursing home by separate check and it provided
virtually all of the necessities of life for Clarence and Helen. Nonetheless, Ms. McPike
wrote checks to cash totaling $33,200 during the months of July through December of
2002, cashed the checks, and retained the proceeds. Although Ms. McPike may have
paid Jane Weatherbee for a few weeks after Clarence and Helen began residing in the
nursing facility, she certainly wasn't paying the equivalent of 24 hour care, but only
enough to reserve the services of the providers for a short period, should Clarence and
Helen begin living in their Lincoln home again. Additional legitimate expenses would
include cleaning services for the Lincoln home and purchases of medication, clothing,
furnishings and incidental additional items for Clarence and Helen. Additionally, it
would be legitimate to be reimbursed for fuel used in taking them out of the nursing
home excursions. Under no circumstances can the Court find that more than $1,000 per
month could be expended for these purposes. A review of the records that Ms. McPike
eventually started to keep for such expenditures indicates that the amounts actually
spent for this purpose do not approach the one thousand dollar level. Because Ms.
21
McPike wrote checks to cash totaling $33,200 during this period, the Court finds that
$27,200 of the total was not expended for the benefit of the parties' parents?
C. CLAIMS NOT INVOLVING BANK TRANSACTIONS
The Court next addresses the lesser claims involving personal property and
smaller sums of money.
1. The plaintiff has failed to prove any of its claims with regard to the cash
known as the hide, as well as the alleged disappearance of sums from a safety deposit
box. The likelihood that this money was properly spent is equal to the likelihood that it
wasn't.
2. The plaintiff has failed to prove that the bicycle bought at the ski rack was not
a gift. The suspicious aspects of the cash "gifts" are not present in this transaction.
Although, technically speaking, if the Weatherbees were unduly influenced in making
large cash gifts, or if it were unjust under the circumstances to make such gifts, the
same findings could be made with regard to a smaller gift. The significance of the act of
gifting a modestly priced bicycle, however, is easier to understand and appreciate than
making several gifts of cash amounting to $43,500 and is less subject to undue influence,
and not particularly unjust.
3. The Court is persuaded that the two weapons that had been contained in pl.
ex's. #31 and #31A are the separate property of Michael Weatherbee, but finds that the
7
In making these findings concerning the level of appropriate expenditure, the Court is aware of
the allocation of the burden of proof and the disparity in relative burden between the parties in
providing care for their parents and is attempting to characterize liberally those expenditures that
benefit the parents. In fact, none of the care providers testified to receiving amounts as large as
one would expect to be generated by the factual findings contained in this order. The Court has
attempted to credit Ms. McPike for the work she performed for her parents while on the
frontlines of providing care, while Michael Weatherbee was not. She deserves financial
consideration for those general efforts in the Court's findings, but obviously there is a limit to the
consideration that can be granted.
22
issue of Ms. McPike's retention of the firearms has not been raised in the pleadings. The
remaining weapons are the property of the estate.
4. The Court finds that spending the resources of Helen and Clarence on hockey
tickets that they were not capable of using benefited others, but not the parties' parents.
Approximately $1,200 was spent on season tickets in 2001 and 2002, at which time the
expenditure apparently ceased.
5. This Court is not willing to rule that the purchase of the Volvo was
inappropriate because in fact Ms. McPike used it to transport her parents, although it is
obvious to the Court that she drove it more often for her private use. The Court does
not accept the proposition that Ms. McPike's driving it from Bangor to the school where
she was employed as a teacher was usage for the benefit of the parties' parents based on
the rationalization that she picked up their mail in Lincoln during the trip. The Court
has reviewed the bank records in this case and finds that at least $5,000 of the
expenditures from the parents' accounts for Volvo use and maintenance relates to Ms.
McPike's personal use. It is difficult to ascertain the extent to which personal use
depreciated the vehicle.
6. The plaintiff has failed to prove that any other items of tangible personal
property where wrongfully converted or disposed of by the McPikes. It will remain the
task of the probate court to distribute the personal property.
DECISION
I. LIABILITY
Finally, the Court will apply its factual findings to the causes of action that are
alleged, deciding each count of the complaint with regard to each separate party.
23
As the Court has construed it, Count I alleges unjust enrichment, requiring proof
that Helen Weatherbee conferred a benefit upon Ms. McPike of which Ms. McPike was
aware, and that it was inequitable for her to retain it. Based on the findings made above
that Ms. McPike either took $27,000 from her mother in the four transactions between
June 22, 2001 and August 10, 2001 or took advantage of her mother's incapacity in
causing her to give that amount to Ms.McPike, plaintiff has proved the elements of
unjust enrichment. Unjust enrichment has also been proved with regard to the portion
of the remaining amounts that Ms. McPike took from her mother's account that did not
benefit her mother (a portion of the 2002 financial transactions detailed above), as well
as the use of the Volvo and the hockey tickets. 8
Count II expresses a statutory improvident transfer claim. In this count, plaintiff
must prove that Helen Weatherbee made a "major transfer of personal property of
money", for less than full consideration and while not represented by counsel. 33 M.R.S.
§ 1022. A "major transfer" means a transfer of money or items of personal property that
represents 10% or more of an elderly person's estate. 33 M.R.S. § 1021(5). In order to
reach the 10% threshold in this case, several transfers would have to be aggregated.
Although it may be permissible to aggregate individual transfers in some
circumstances, such as the transfers that allegedly were gifts for Noah's education, such
an aggregation would not satisfy the 10% requirement. Those transfers total $27,000
from Helen and $16,000 from Clarence. Evidence admitted at trial indicates financial
8
The Court has not distinguished between the amounts taken from Helen vs. the amounts taken
from Clarence, but has found that, overall, Ms. McPike took a total of $42,700 in 2002 from both
parents that did not provide a benefit to either. Additionally, Ms. McPike was unjustly enriched
by her use of the hockey tickets and her use of the Volvo. To the extent that it is necessary to
segregate the amounts taken from each, the Court finds that $21 ,350 was taken from each in the
transactions and the value of the benefit conferred by each for the hockey tickets was $600.
Since the Volvo was used primarily after Clarence' death, the $5,000 benefit was conferred by
Helen only.
24
assets of slightly more than $270,000 for Helen and $250,000 for Clarence at the time, as
well as valuable real estate assets. The Court will not aggregate the smaller transfers in
2002 that it has discredited. The statute requires that qualifying transactions be nullified
if the elderly person is not represented by an attorney for the transaction. Court does
not construe the statute as requiring that the elderly person retain counsel to advise
each relatively small expenditure in order to ensure that the transaction is not voided,
nor does the Court believe that such a result was contemplated by its enactment. This
claim fails.
Count III expresses a claim for abuse of confidential relationship by undue
influence. To prove this, the plaintiff must prove certain elements set forth in Ruebsamen
v. Maddocks, 340 A.2d 31, 34-37 (Me. 1975). First, the plaintiff must prove the existence of
a confidential relationship, which is defined as the actual placing of trust and
confidence by one party in another when there is a great disparity of position and
influence between the parties to the relation. Additionally, the plaintiff must prove that
a benefit flowed to the superior party from the other. If these elements are satisfied,
there is a presumption of undue influence, and to become unburdened from the
presumption, the other party must show fairness and freedom from undue influence,
showing that the lack of undue influence is more probable than its existence. Theriault v.
Burnham, 2010 ME 82 <[<[ 9-10, 2 A.3d 324, 326-327. If the presumption is dispelled, than
the plaintiff must prove undue influence without the benefit of the presumption. Based
on the Court's findings concerning the behavior of Helen and Clarence Weatherbee in
2001 and 2002, and considering the medical record relevant to that time period, the
Court easily finds the existence of a confidential relationship. Helen and Clarence
needed assistance in managing their financial affairs because of their lack of capacity, so
they placed trust in their daughter, a person who was capable of managing their affairs,
25
by giving her power of attorney. Present in this relationship was a natural disparity of
position and influence between the parties. Furthermore, as already chronicled, Ms.
McPike obtained a benefit flowing from the relationship, at the expense of the other.
Finally, for reasons already described, the Court finds that Ms. McPike has failed to
rebut the presumption, failing to demonstrate fairness and freedom from undue
influence. 9 The amount of recovery to the estate in this count is the same as Count I.
With regard to counts IV and V, construed as counts alleging unjust enrichment,
the Court finds for the plaintiff, the Estate of Clarence Weatherbee for the same reasons
that support the Court's decision in Count I. The amount of recovery to the estate is
different however, and includes $16,500 in 2001 transactions (allegedly gifts for Noah's
education), $21,350 in 2002 transactions (allegedly for care), and $600 for hockey tickets.
In Count VI Michael Weatherbee and Helen Weatherbee 10 alleges a tortious
interference with the expectation of a legacy. The elements of this claim include the
existence of an expectancy of inheritance, an intentional interference by tortious
conduct such as duress, fraud, or undue influence, a reasonable certainty that the
expectation would have been realized but for the interference, and resulting damage.
The Court finds that the plaintiffs have proved this claim. Each plaintiff had the
requisite expectancy, Ms. McPike engaged in the tortious conduct of undue influence,
and the expectancy would have been greater without the interference. Although
complicated questions concerning the measure of damages exist, the Court's order in
9
The Court is aware that, at least with regard to the cash transactions in 2002, its findings
indicate that Ms. McPike simply took the money from her parents without necessarily
influencing them to give it her. To that extent it could be argued that those transactions were free
from undue influence. The Court does not believe that characterizing those transactions as what
is tantamount to a conversion is an effective rebuttal to the presumption.
10
Actually, the proper party now is her estate because of the suggestion of death that was filed.
26
this regard shall be the same as in Counts IV and V above, because that is the only relief
that plaintiff Weatherbee seeks.
For reasons already discussed, The Court finds for the defendant on the statutory
claims expressed in Count VII.
II. DAMAGES
Although the process for ascertaining damages for the portion of Count VI in
which Michael Weatherbee is the plaintiff may be different from the process to
determine damages in the remaining counts in which the Estate of Helen Weaterbee is
plaintiff, plaintiff Michael Weatherbee articulates that he wants the Court to order Ms.
McPike to repay restitution to her parents' estates. The Court will enter such an order
but as an alternative to ordering immediate payment of such restitution, which Ms.
McPike may or may not be able to pay, the Court observes that the same result can be
accomplished by the probate court's augmenting Helen's estate by $53,950 and
Clarence's by $38,450, plus interest and costs, and in distributing the assets of the
estates to the heirs, by treating Ms. McPike as already having received the above
distributions from the estates. Because the Court is not certain that this Judgment can be
satisfied in the manner contemplated, the Court retains jurisdiction to make additional
orders to implement the Judgment.
The Entry Is:
Michael Weatherbee is dismissed as plaintiff in Counts I-V and VII for lack of
standi!lg.
Judgment for the plaintiff, Estate of Helen Weatherbee on Counts I and III of the
complaint, and against defendant Peggy McPike.
Judgment for the plaintiffs, Michael Weatherbee and the Estate of Helen
Weatherbee on Count VI of the complaint and against defendant Peggy McPike.
27
Judgment for the plaintiff, Estate of Clarence Weatherbee on Counts IV and V of
the complaint and against defendant Peggy McPike.
Defendant Peggy McPike is Ordered to make restitution to the estate of Helen
Weatherbee in the amount of $53,950 and to the estate of Clarence Weatherbee in the
amount of $38,450, plus interest and costs.
Judgment for Defendant Peggy McPike on Counts II and VII.
Dated: March 22, 2012 -·~~~--~~~~~~~
WILLIAM ANDERSON
JUSTICE, SUPERIOR COURT
28
MICHAEL P WEATHERBEE &GUARD H WEATHERBEE - PLAINTIFF SUPERIOR COURT
1442 COLLEEN LANE PENOBSCOT, ss.
MCLEAN VA 22107 Docket No BANSC-CV-2007-00318
Attorney for: MICHAEL P WEATHERBEE &GUARD H WEATHERBEE
CHARLES GILBERT III - RETAINED
GILBERT & GREIF DOCKET RECORD
82 COLUMBIA ST
PO BOX 2339
BANGOR ME 04402-2339
vs
MICHAEL H GRIFFIN PR EST C WEATHERBEE - DEFENDANT
Attorney for: MICHAEL H GRIFFIN PR EST C WEATHERBEE
MICHAEL H GRIFFIN - RETAINED 04/09/2008
GRIFFIN & JORDAN, LLC
68 MAIN STREET
PO BOX 220
ORONO ME 04473-0220
PEGGY MCPIKE - DEFENDANT
23 MOLLY LANE
BANGOR ME 04401
Attorney for: PEGGY MCPIKE
FRANK T MCGUIRE - RETAINED
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
Filing Document: COMPLAINT Minor Case Type: OTHER EQUITABLE RELIEF
Filing Date: 12/17/2007
Docket Events:
12/18/2007 FILING DOCUMENT - COMPLAINT FILED ON 12/17/2007
12/18/2007 Party(s): MICHAEL P WEATHERBEE &GUARD H WEATHERBEE
ATTORNEY - RETAINED ENTERED ON 12/17/2007
Plaintiff's Attorney: CHARLES GILBERT III
12/18/2007 Party(s): PEGGY MCPIKE
ATTORNEY - RETAINED ENTERED ON 12/17/2007
Defendant's Attorney: FRANK T MCGUIRE
12/18/2007 Party(s): PEGGY MCPIKE
RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 12/17/2007
ALONG WITH EXHIBIT A ATTACHED.
12/18/2007 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 12/17/2007
TO PLAINTIFF' ATTORNEY.
12/18/2007 Party(s): PEGGY MCPIKE
SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 12/17/2007
AS TO DEFENDANT PEGGY MCPIKE BY ATTY. FRANK MCGUIRE.
Page 1 of 10 Printed on: 03/23/2012