Patricia A. McCollor v. Frederick J. McCollor Jr.
87 A.3d 761
Me.2014Background
- Patricia A. McCollor and Frederick J. McCollor, Sr. were married with two children, Cheryl and John; they moved to 7 Lawrence Street in Waterville in 1996.
- Frederick’s health deteriorated starting in 2006, and Patricia became his primary caregiver as he declined, with John assisting as well.
- On Oct. 20, 2008, John prompted a deed transfer of the home to John and Cheryl to avoid MaineCare seizure, at Gateway Title; meeting with attorney Kirk is disputed.
- In June 2010 Frederick suffered a stroke; John obtained a power of attorney five days after the stroke, opened a joint bank account, and transferred funds, with most after Frederick’s death; John withdrew funds post-mortem.
- Frederick died intestate in Dec. 2010; Patricia filed suit in 2011 on ITTA, undue influence, conversion, and breach of fiduciary duty; in 2012 the court held the transfer void due to undue influence and ordered remedies including a constructive trust and damages of $21,198.90.
- The November 2012 amended judgment added restoration of personal property; John and Cheryl appealed, and the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Patricia qualifies as an elderly dependent person under ITTA | Patricia was an elderly dependent person (age 64) with dependence on John for care and support | John contends Patricia did not meet the ITTA’s elderly dependent standard and that independent counsel was present | Patricia qualified as an elderly dependent person under ITTA |
| Whether Patricia and Frederick had independent counsel in the transfer | There was an independent attorney representing their interests | No independent counsel retained; Gateway Title document insufficient to prove independence | No independent counsel; error in excluding document harmless |
| Whether the deed transfer was a major transfer of property under ITTA | The deed conveyed both real property and contents, constituting a major transfer | Transfer did not meet ITTA’s major transfer criteria when considering property value alone | The transfer included both real estate and contents; it was a major transfer under ITTA; remedies appropriate |
| Damages analysis and award support | Damages supported by Patricia’s evidence and intent to restore assets | Damages contradicted by other evidence; calculation challenged | Damages supported by competent evidence; award upheld |
Key Cases Cited
- Sylvester v. Benjamin, 767 A.2d 297 (Me. 2001) (ITTA presumption standards and elderly dependent definition)
- Pelletier v. Pelletier, 36 A.3d 903 (Me. 2012) (credibility determinations and elder transfer context)
- State v. Nelson, 994 A.2d 808 (Me. 2010) (business records foundation and admissibility)
- Beneficial Me. Inc. v. Carter, 25 A.3d 96 (Me. 2011) (evidentiary foundations and standard of review)
- Dyer v. Superintendent of Ins., 69 A.3d 416 (Me. 2013) (appellate review of damages credibility)