Robert L. Connary v. Richard A. Shea

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 57
Docket: Cum-23-74
Argued: September 13, 2023
Decided: August 6, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.*

ROBERT L. CONNARY et al.

v.

RICHARD A. SHEA et al.

STANFILL, C.J.

[¶1] For the second time, the Connary heirs1 appeal from a summary

judgment entered by the Superior Court (Cumberland County, O’Neil, J.) in favor

of the Shea brothers on Connary’s claim for reformation of the Shea Family

Living Trust. In the proceedings leading to the first appeal, the court

(Stewart, J.) concluded that the Trust’s legacy to Connary of stock in a bank was

a specific devise that had adeemed when the bank recalled and redeemed the

stock, meaning that the stock was no longer part of the Trust and Connary was

not entitled to a distribution of money to account for the stock’s value.

*
Although Justice Jabar participated in this appeal, he retired before this opinion was certified.

1 We use the term “Connary” or “Connary heirs” to refer collectively to appellants Robert

L. Connary, Susan E. Napolitano, Patricia A. Narducci, James C. Clark, Margaret A. Gillett, and Eric
R. Clark, the plaintiffs in the trial court. We use the term “Shea” or “Shea brothers” to refer collectively
to appellees Richard A. Shea, Dennis G. Shea, and William P. Shea, defendants in the trial court.
2

Connary v. Shea, 2021 ME 44, ¶¶ 8-9, 259 A.3d 118. We affirmed the court’s

interpretation of the Trust, but we remanded the matter for the parties to

litigate Connary’s reformation claim. Id. ¶¶ 25, 29-30; see 18-B M.R.S. § 415

(2024). On remand, the court (O’Neil, J.) granted Shea’s motion for summary

judgment on the ground that Connary had not marshaled any admissible

evidence generating a genuine dispute of fact as to the elements of the

reformation claim. Connary argues that the court erred in determining that the

evidence Connary proferred in support of the reformation claim was

inadmissible and urges us to conclude that, considering that evidence, a

genuine dispute of material fact exists for trial. We conclude that Connary’s

reformation claim cannot survive summary judgment even if he is correct that

the disputed evidence may be considered, and we therefore affirm the

judgment.

I. BACKGROUND

[¶2] In our opinion deciding Connary’s first appeal, we described the

following relevant facts as revealed by the summary judgment record viewed

in the light most favorable to the nonprevailing party, Connary. Connary, 2021

ME 44, ¶¶ 1-6, 259 A.3d 118; see, e.g., Kurtz & Perry, P.A. v. Emerson, 2010 ME

107, ¶ 15, 8 A.3d 677. In July 2003, William and Patricia Shea established the
3

Shea Family Living Trust; they funded it, in part, with stock in a private,

New-Hampshire-based bank and stock in General Electric. Connary, 2021 ME

44, ¶¶ 1, 4, 259 A.3d 118. The Trust’s distribution plan included a provision

that, upon the death of the survivor of William and Patricia, a successor trustee

was to “take charge of the assets then remaining in” the Trust, pay the debts of

the survivor and of the Trust, distribute the bank and General Electric stock to

the Connary heirs (Patricia’s nieces and nephews), and distribute all of the

remaining “net proceeds of the trust” to the Shea brothers (William’s children).

Id. ¶¶ 4, 18 n.10.

[¶3] William died in 2006. Id. ¶ 5. That same year, the bank recalled and

redeemed its stock, and the Trust received approximately $460,000. Id. During

the twelve years that followed, these funds were commingled with other funds

in the Trust’s investment accounts. Id. After Patricia died in 2018, the

successor trustee determined that the bank stock was no longer part of the

Trust and informed Connary that he could not distribute any money to Connary

in lieu of the bank stock.2 Id. ¶ 6.

2 The successor trustee liquidated the General Electric stock and distributed the proceeds to the
Connary heirs; there is no dispute about this distribution. Connary v. Shea, 2021 ME 44, ¶ 6, 259 A.3d
118.
4

[¶4] In October 2019, Connary filed the operative nine-count second

amended complaint against Shea and the Trust.3 In what were styled as parts

“(A)” and “(B)” of Count 2, Connary requested a declaratory judgment stating

that the Trust unambiguously provided to him “the ‘[p]roceeds’ from the

involuntary redemption and sale of” the bank stock or, if the Trust was

ambiguous, that Patricia “intended to gift any proceeds” from the redemption

of the bank stock to him. In part “(C)” of Count 2, Connary asked the court to

reform the Trust to “conform to [Patricia’s] intentions” that “[t]he proceeds

[were] to be distributed” to him.

[¶5] The parties filed cross-motions for summary judgment on Count 2.

Id. ¶ 8. Connary argued that the Trust’s provision relating to the bank stock

was a general devise that entitled him to proceeds from the 2006 redemption,

and Shea argued that the provision was a specific devise that had adeemed

when the redemption occurred. Id. ¶¶ 8, 26. The court (Stewart, J.) agreed with

Shea and granted his motion for summary judgment. Id. ¶¶ 9, 28. Although the

3 The complaint also named one of the Shea brothers, Richard Shea, in his capacity as the

successor trustee. The nine counts alleged were: breach of fiduciary duty by the successor trustee
and replacement of the successor trustee (Count 1); declaratory judgment on the interpretation of
the Trust or reformation of the Trust (Count 2); breach of fiduciary duty by the successor trustee
(money damages) (Count 3); injunctive relief enjoining the successor trustee from making any
further distributions (Count 4); return of any improper distributions (Count 5); breach of fiduciary
duty by the successor trustee via conversion of trust assets (Count 6); and breach by the successor
trustee of the duties of impartiality and loyalty, and the duty to protect beneficiaries’ interests
(Counts 7 through 9).
5

parties had not addressed Count 2(C), Connary’s claim for reformation, the

court “denied and dismissed” that claim, later stating that it had entered a

summary judgment on Count 2 as a whole based on its conclusion that the

Trust’s distribution plan plainly provided for a specific devise of the bank stock.

Id. ¶¶ 8-9, 26-28 (quotation marks omitted).

[¶6] Connary appealed,4 and we affirmed the judgment as to Counts 2(A)

and 2(B), agreeing with the trial court that the Trust language “reflect[ed] a

plain and clear intent by William and Patricia to create a specific gift” of the

bank stock to Connary and that the stock had adeemed because no shares

remained in the Trust at the time of Patricia’s death. Id. ¶¶ 13-21, 25 (quotation

marks omitted). Turning to Connary’s reformation claim as reflected in

Count 2(C) of the complaint, however, we observed that this interpretation of

the Trust document did not necessarily preclude a viable claim for reformation.

Id. ¶ 29; see 18-B M.R.S. § 415 (“The court may reform the terms of a trust, even

if unambiguous, to conform the terms to the settlor’s intention if it is proved by

clear and convincing evidence that both the settlor’s intent and the terms of the

trust were affected by a mistake of fact or law, whether in expression or

inducement.” (emphasis added)). Because “facts extrinsic to the Trust” might

4 The parties had, by then, stipulated to the entry of a final judgment in favor of the Shea brothers

on all of the other counts of Connary’s complaint.
6

“demonstrate a mistake of fact or law necessitating reformation” and the

parties had not specifically litigated the reformation claim as part of the

summary judgment proceedings, we vacated that portion of the judgment and

remanded the matter for further proceedings on the reformation claim.

Connary, 2021 ME 44, ¶¶ 29-30, 259 A.3d 118.

[¶7] On remand, Shea moved for summary judgment on the reformation

claim. See M.R. Civ. P. 56. Connary opposed the motion and filed a statement of

additional material facts that he contended raised a disputed issue for trial. See

M.R. Civ. P. 56(h)(2). That filing included (1) statements that Patricia had, in

2016 and 2018, indicated to various family members that she intended for

Connary to receive “Uncle Pete’s money,” an apparent reference to the bank and

General Electric stock; and (2) statements that the attorney who drafted the

Trust document for Patricia and William did not question Patricia about her

intent in the event that the bank stock no longer existed in the Trust at the time

of her death. Shea objected to and qualified many of these statements, arguing

that the evidence cited was inadmissible and, in any event, did not support the

statements. See M.R. Civ. P. 56(e), (h)(2), (4).

[¶8] In January 2023, the trial court (O’Neil, J.) held a hearing on the

summary judgment motion, during which Connary acknowledged that the
7

alleged oral declarations by Patricia to family members were “the only evidence

of her intent other than the four corners of the [Trust] document.” Shea again

argued that evidence of the oral declarations was inadmissible and that

Connary had therefore failed to raise a genuine fact issue for trial on his

reformation claim. After the hearing, the trial court issued a written order

granting Shea’s motion. Citing Estate of Utterback, 521 A.2d 1184, 1187-88

(Me. 1987), the court concluded that it could not consider the evidence of

Patricia’s statements of intent and that Connary had not presented any other

evidence generating a genuine dispute of fact material to his reformation claim.

Connary appealed.

II. DISCUSSION

[¶9] Connary argues that the statements by Patricia and the drafting

attorney were admissible and, taken together, generate a genuine dispute of

fact material to their claim that Patricia was mistaken about the meaning of the

Trust’s language. We review a trial court’s grant of a motion for summary

judgment de novo, viewing the properly supported facts in the summary

judgment record in the light most favorable to the nonprevailing party to

determine whether a genuine issue of material fact exists.5 See Day’s Auto Body,

5 “A fact is material if it has the potential to affect the outcome of the suit, and an issue of material

fact is genuine when a fact-finder must choose between competing versions of the truth, even if one
8

Inc. v. Town of Medway, 2016 ME 121, ¶ 6, 145 A.3d 1030; see M.R. Civ. P. 56(c).

“A defendant who is the moving party has the initial burden to establish that

there is no genuine dispute of fact and that the undisputed facts would entitle

the defendant to judgment as a matter of law at trial. The nonmoving plaintiff

must then demonstrate that material facts are disputed and must make out a

prima facie case for its claim.” Oceanic Inn, Inc. v. Sloan’s Cove, LLC, 2016 ME 34,

¶ 26, 133 A.3d 1021 (citation, alteration, and quotation marks omitted). “[A]

party’s assertion of material facts must be supported by record references to

evidence that is of a quality that would be admissible at trial.” HSBC Mortg.

Servs., Inc. v. Murphy, 2011 ME 59, ¶ 9, 19 A.3d 815; see M.R. Civ. P. 56(e), (h)(4).

[¶10] The substantive elements of a claim for reformation of a trust are

set forth in 18-B M.R.S. § 415:

The court may reform the terms of a trust, even if unambiguous, to
conform the terms to the settlor’s intention if it is proved by clear
and convincing evidence that both the settlor’s intent and the terms
of the trust were affected by a mistake of fact or law, whether in
expression or inducement.

The statute became effective in July 2005 when the Maine Uniform Trust Code

took effect. 18-B M.R.S. § 1103 (2024); P.L. 2003, ch. 618, §§ A-1, A-2. Prior to

that enactment, our common law regarding reformation permitted a court to

party’s version appears more credible or persuasive.” Day’s Auto Body, Inc. v. Town of Medway,
2016 ME 121, ¶ 6, 145 A.3d 1030 (quotation marks omitted).
9

“modify testamentary trust provisions where the modifications (1) relate[d] to

administrative, as opposed to dispositive, provisions, (2) [were] required by

necessitous circumstances, and (3) [were] consistent with the settlor’s primary

intent.” Estate of Burdon-Muller, 456 A.2d 1266, 1271 (Me. 1983) (quotation

marks omitted). Section 415 “exten[ded]” Maine law by enabling courts to

reform dispositive (rather than only administrative) trust provisions in case of

mistake and by adopting the standard of proof by clear and convincing evidence

to “offset somewhat the expansion of the court’s power to reform.”

18-B M.R.S.A. § 415 Unif. Tr. Code Me. cmt. (2024); cf. 18-B M.R.S. § 106 (2024)

(“The common law of trusts and principles of equity supplement this Code,

except to the extent modified by this Code or another statute of this State.”).

Save for our earlier decision in this matter, in which we made clear that a

definitive interpretation of a trust instrument’s text as unambiguous does not

preclude a reformation claim under the plain terms of section 415, see Connary,

2021 ME 44, ¶ 29, 259 A.3d 118, we have neither interpreted section 415 nor

examined what types of evidence may be considered by a fact-finder

adjudicating a claim under section 415.

[¶11] Connary argues that the court erred by ruling that the evidence of

Patricia’s statements to others about her wishes, even if otherwise admissible
10

under the rules of evidence,6 is inadmissible for the purpose of proving the

elements of his reformation claim. In so ruling, the court relied on Estate of

Utterback, where we reiterated the common law rule that a testator’s extrinsic

declarations are inadmissible to prove testamentary intent, even where the

declaration would otherwise be admissible under the Maine Rules of Evidence.

521 A.2d at 1187-88; see also Farnsworth v. Whiting, 66 A. 831, 833 (Me. 1906);

Bryant v. Bryant, 151 A. 429, 432 (Me. 1930); First Portland Nat’l Bank v.

Kaler-Vaill Mem’l Home, 155 Me. 50, 62-66, 151 A.2d 708, 715-16 (Me. 1959);

Lord v. Soc’y for Pres. of New Eng. Antiquities, Inc., 639 A.2d 623, 624 n.5

(Me. 1994); Maietta v. Winsor, 1998 ME 84, ¶ 7, 710 A.2d 238; Estate of Lord,

2002 ME 71, ¶¶ 11-14, 795 A.2d 700; see also, e.g., M.R. Evid. 803(3); cf. Morrill

v. Morrill, 1998 ME 133, ¶ 4, 712 A.2d 1039 (explaining when the Utterback rule

does and does not apply). Connary argues that the common law rule has lost

its vitality in light of the enactment of section 415. Shea urges us to hew to our

precedent in excluding the statements. The parties agree that, without the

statements, Connary’s reformation claim cannot survive the summary

judgment motion.

“A statement of the declarant’s then-existing state of mind,” including a statement of intent, is
6

an exception to the rule against hearsay. M.R. Evid. 803(3).
11

[¶12] The statute is modeled on the Restatement’s reformation rule,

although its language is not identical. 18-B M.R.S.A. § 415 Unif. Tr. Code cmt.;

see Restatement (Third) of Prop.: Wills and Donative Transfers § 12.1 (Am. Law

Inst. 2024). The Restatement rule is stated as follows:

A donative document, though unambiguous, may be reformed to
conform the text to the donor’s intention if it is established by clear
and convincing evidence (1) that a mistake of fact or law, whether
in expression or inducement, affected specific terms of the
document; and (2) what the donor’s intention was. In determining
whether these elements have been established by clear and
convincing evidence, direct evidence of intention contradicting the
plain meaning of the text as well as other evidence of intention may
be considered.

Restatement (Third) of Prop.: Wills and Donative Transfers § 12.1.

[¶13] Like section 415, the Restatement rule imposes a heightened

burden of proof on a party seeking to reform unambiguous trust language. The

Restatement explains, “The objective of [a blanket rule excluding extrinsic

evidence of the donor’s intention], to prevent giving effect to mistaken or

fraudulent testimony, is sufficiently served by subjecting extrinsic evidence

that contradicts what appears to be the plain meaning of the text to a higher

than normal standard of proof, the clear-and-convincing-evidence standard.”

Id. cmt. d. Similarly, the Uniform Comment to section 415 explains, “Because

reformation may involve the addition of language to the instrument, or the
12

deletion of language that may appear clear on its face, reliance on extrinsic

evidence is essential. To guard against the possibility of unreliable or contrived

evidence in such circumstance, the higher standard of clear and convincing

proof is required.” 18-B M.R.S.A. § 415 Unif. Tr. Code cmt.

[¶14] According to the Restatement, this approach to adjudicating

reformation claims—“high-safeguard allowance of extrinsic evidence” rather

than total exclusion of inherently suspect extrinsic evidence of intent—

“achieves the primary objective of giving effect to the donor’s intention.”

Restatement (Third) of Prop.: Wills and Donative Transfers § 12.1 cmt. b.

Indeed, the Restatement contemplates that the full range of extrinsic evidence

of donor intent should be considered. Id.; Restatement (Third) of Prop.: Wills

and Donative Transfers § 10.2 & cmts. e-f (Am. L. Inst. 2003). Specifically, “oral

and written testimony concerning the donor’s declarations of intention should

be held admissible under exceptions to the hearsay rule.” Id. § 10.2 cmt. h.

[¶15] The Maine Uniform Trust Code does not include a provision

mirroring section 10.2 of the Restatement. See 18-B M.R.S. §§ 101-2119 (2024).

We nonetheless share Connary’s concern about the continuing vitality of the

Utterback rule excluding otherwise admissible statements of testamentary

intent, which may be necessary to prove that intent.
13

[¶16] However, we need not decide that issue here because, even if the

evidence concerning Patricia’s prior statements of intent is admissible, we

conclude that Shea is entitled to judgment as a matter of law on the reformation

claim and therefore affirm on alternate grounds. See Brooks v. Town of

Bar Harbor, 2024 ME 21, ¶ 7, 314 A.3d 205 (“[W]e may affirm a summary

judgment on alternative grounds from the trial court decision when we

determine, as a matter of law, that there is another valid basis for the

judgment.” (quotation marks omitted)); see also Puritan Med. Prods. Co. LLC v.

Copan Italia S.p.A., 2018 ME 90, ¶ 28, 188 A.3d 853.

[¶17] Reformation is available “to conform the terms to the settlor’s

intention” only if it is proven that “both the settlor’s intent and the terms of the

trust were affected by a mistake.” 18-B M.R.S. § 415. The statute refers to the

“settlor” in the singular, but in this case two settlors, Patricia and William,

created the Trust together.

[¶18] Although this appears to be an issue of first impression in Maine,

we are satisfied that reformation is appropriate only if necessary to conform to

the terms of both settlors’ intention. Cf. Ike v. Doolittle, 70 Cal. Rptr. 2d 887,

890-91, 902-07 (Ct. App. 1998) (reforming ambiguous trust provisions based

on extrinsic evidence of two settlors’ shared intent). In other words, Connary
14

must prove that both Patricia and William were mistaken about what would

occur in the event of the stock recall in order to prevail on a reformation claim.

“The cardinal rule is to give effect to the intention of the settlor[s] gathered

from the language of the trust, bearing in mind that such intention must be

related to the time the trust was executed.” Connary, 2021 ME 44, ¶ 13, 259

A.3d 118 (alteration and quotation marks omitted). We cannot reform a trust

to conform to the intent of one settlor when doing so is or may be contrary to

the intent of the other settlor as expressed in the instrument. Reformation is

available only when necessary to give effect to the intent of all settlors.

[¶19] Here, the record contains scant evidence of William’s intent

generally and no evidence that could support a finding that William mistakenly

believed the Trust provided for Connary to receive proceeds from any future

recall of the bank stock. Even if we were to consider Patricia’s extrinsic

statements of intent, therefore, Shea is still entitled to summary judgment in his

favor.

[¶20] Moreover, section 415 is modeled on the Restatement’s rule for

reformation of trusts, 18-B M.R.S.A. § 415 Unif. Tr. Code cmt.; see Restatement

(Third) of Prop.: Wills and Donative Transfers § 12.1, and the Restatement

describes limitations on the scope of reformation, Restatement (Third) of Prop.:
15

Wills and Donative Transfers § 12.1 cmt. h. “Reformation is a rule governing

mistakes in the content of a donative document, in a case in which the donative

document does not say what the transferor meant it to say. Accordingly,

reformation is not available to . . . modify a document in order to give effect to

the donor’s post-execution change of mind . . . or to compensate for other

changes in circumstances . . . .” Id. Based on this principle, courts have declined

to allow reformation where the claimed mistake involved a failure to predict

future changes in circumstances that might affect the donor’s wishes. See id.

Rep.’s Note 8; Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 1211

(D.C. 1987) (holding that reformation was unavailable to add a life insurance

beneficiary who had not been born at the time of execution, absent evidence

“that the parties agreed on a specific term to cover after-born children, but

mistakenly left such a term out of the policy”); Estate of Dye, 112 Cal. Rptr. 2d

362, 373 (Ct. App. 2001) (denying reformation because the testator’s “mistake

was his subsequent failure to execute a codicil or a new will to carry out his new

intent” after a change in circumstances (quotation marks omitted)); Morey v.

Everbank, 93 So. 3d 482, 491 (Fla. Dist. Ct. App. 2012) (“Reformation is not

available to modify the terms of a trust to effectuate what the settlor would
16

have done differently had the settlor foreseen a change of circumstances that

occurred after the instruments were executed.”).

[¶21] The facts of this case are analogous to the following illustration in

the Restatement:

G’s will devised his government bonds to his daughter, A, and the
residue of his estate to a friend. Evidence shows that the bonds are
worth only half of what they were worth at the time of execution of
the will and that G would probably have left A more had he known
that the bonds would depreciate in value.

This evidence does not support a reformation remedy. G’s mistake
did not relate to facts that existed when the will was executed.

Restatement (Third) of Prop.: Wills and Donative Transfers § 12.1 ill. 3.

Evidence that Patricia and William would have intended for Connary to receive

money had they known that the bank would recall and redeem its stock before

the distribution provision took effect is evidence of a “mistake [that does] not

relate to facts that existed when the [Trust] was executed.” Id. “This evidence

does not support a reformation remedy.” Id.

[¶22] We are thus persuaded that reformation is unavailable in this case

because its only purpose would be to compensate for a change in circumstances

that occurred after the Trust was formed, when the bank recalled and

redeemed the stock at issue. To survive summary judgment, Connary needed

to point to admissible evidence in the record sufficient to raise a genuine
17

dispute of fact about whether, in 2003, Patricia and William intended to include

a Trust provision that would preserve proceeds for Connary in the event of a

stock recall but mistakenly left that provision out of the Trust. See id. § 12.1

cmt. h. Connary’s proffered evidence, even if admissible, does not raise a fact

issue concerning Patricia’s and William’s intent in 2003. See id. § 12.1 ill. 3;

Abramson, 530 A.2d at 1211.

[¶23] Because Connary cannot point to evidence sufficient to raise a

genuine dispute of fact material to the reformation claim, Shea is entitled to

judgment as a matter of law on that claim. We therefore affirm the judgment.

See Brooks, 2024 ME 21, ¶ 7, 314 A.3d 205.

The entry is:

Judgment affirmed.

Jeremy W. Dean, Esq. (orally), Portland, for appellants Robert L. Connary et al.

Daniel A. Nuzzi, Esq. (orally), and Eammon R.C. Hart, Esq., Brann & Isaacson,
Lewiston, for appellees Richard A. Shea et al.

Cumberland County Superior Court docket number CV-2019-39
FOR CLERK REFERENCE ONLY