The Law Governing a Will – Can You Change It?

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The Law Governing a Will – Can You Change It? 

Traditionally, a will in Maine was governed by the place where the decedent was domiciled at the time of his or her death.   The common law definition of “domicile” in Maine means the place (A) where a person resides, and (B) where that person intends to remain and, whenever absent, intends to return. See State v. Falcone, 2006 ME 90, ¶ 9, 902 A.2d 141.  That meant that a court would apply the laws of the State of Maine regarding meaning and effect to the will and that the Personal Representative (also known in other jurisdictions as an Executor) would have the powers, and be subject the duties and requirements, set forth in Maine’s statutes and case law.

Under Prior Law, Trusts Were Treated Differently

Under prior law, trusts were not similarly restricted.   A trust could set forth a governing law other than the State of Maine.  In a trust, there are very few restrictions on what default laws the trust must abide by.  Generally, the terms of a trust are only limited by the knowledge and skill of the drafting attorney, which, in theory, reflect the intent of the client.  For this reason, and others, trust are often the preferred estate planning vehicle.

Maine’s New Uniform Probate Code

The Maine Uniform Probate Code (MUPC), Title 18-C M. R. S. § 1-101 et seq., with a delayed effective date of September 1, 2019, revokes Title 18-A.  Title 18-C brings with it significant changes to the law.  One change is ushered in by § 2-703, which enables the drafter of any instrument, including but not limited to Wills, to alter the governing law.  Local, Maine law, would only govern in the absence of a governing law provision unless the application of that law is contrary to the provisions relating to the elective share, exempt property and allowances or any other public policy of Maine applicable to the disposition. This is a change in the law from the former Title 18-A and establishes parity between the Maine Uniform Probate Code and the Maine Uniform Trust Code. See Title 18-B M.R.S. § 107.

To be clear § 2-703 only addresses the “meaning and legal effect” of an instrument.  In Maine, choice of law as to execution of wills is governed by 18-C M.R.S. § 2-505,  which provides “A written will is valid if executed in compliance with section 2-502 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national or if executed in compliance with 10 United States Code, Section 1044d.”  10 United States Code, Section 1044d addresses military testamentary instruments and is not further discussed.

The enactment of § 2-703 is important because it, with the rest of Title 18-C, puts trusts and wills on equal footing.  Many wills contain trust provisions.  This fact confuses people.  However, a trust isn’t a “thing” so much as it is an agreement (or declaration) that establishes a special relationship among parties and that relationship can be established in a separate instrument (a trust) or under a testamentary instrument (a will).   For this reason, and others, allowing wills to alter the governing law governing the meaning and effect of its provisions, such as separate trusts, can be helpful for the knowledgable drafter that wants to alter default provisions of the probate or trust code.  This is a change in the law that increases what lawyers can do for their clients within the context of a will and is a welcomed change.

Happy Drafting!

About Smilie G. Rogers

Smilie is an elder law, estate planning, probate, and tax attorney at Brennan & Rogers, PLLC, with offices in York and Kennebunk, Maine. See www.brennanrogers.com. Licensed to practice law in Maine, Massachusetts, and New Hampshire and licensed, but inactive, in Virginia. Smilie is also the founder of New England Estate Planning, see www.newenglandestateplanning.com, a fledgling website with the stated purpose of sharing legal knowledge and know-how, including automated forms, with and among estate planning lawyers.
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