Vukasovich v. Vukasovich

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-20-433
CV-21-434

MARK VUKASOVICH

V. ORDER

CHRISTIAN VUKASOVICH

On April 5 and 6 2023, the court presided over a two day bench trial. The court makes the

following findings of fact and conclusions of law.

1. Plaintiff Mark Vukasovich ("Marko") and Defendant Christian Vukasovich ("Chris") were

the sons of Sally Vukasovich.

2. Tamara Vukasovich ("Tamara") is married to Chris. She has Serbian and Canadian

citizenship. She did not have residency in the United States and was required to leave the

country for six months and a day each year.

3. After her husband died in 2009, Sally lived alone in the family residence in Ann Arbor

Michigan.

4. Sally had a vibrant social life and was actively involved with her friends and musical

groups.

5. As of 2016, Marko lived in Sutton Bay, Michigan, about a four hour drive north of Ann

Arbor with his wife and children.

6. Chris and Tamara (when she was not in Canada or Europe) lived in Oregon with their

children.

7. Both Marko and Chris stayed in touch with their mother, although Chris and Tamara had

a warmer relationship with Sally than Marko.

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8. In December 2017, Chris and Tamara discussed with Sally an arrangement where they

would buy a house together and Sally would live with Chris and Tamara.

9. Until 2017, Marko had been named on Sally's checking account, had watched over her

assets, and gave her financial advice. In 2015, when Sally expressed concern about her

ability to remain in the house, Marko had prepared budgets that he felt showed she could

maintain residence in the house.

10. In 2017, Sally went to an attorney named Charles Hoffman to prepare a will. Marko and

Chris were treated equally in the will and both were named power of attorney.

11. At some point, Sally asked Marko to take his name off her accounts because she wanted to

put Chris on it.

12. There is no evidence Marko mismanaged the money or was likely to do so in the future.

13. Marko felt Tamara was turning Sally against him. Based on testimony from Sally's friends

and brother, the court finds sufficient evidence to infer that Chris and/or Tamara spoke of

ill of Marko when speaking with Sally and told Sally he may mishandle his finances. They

testified she was concerned that Marko would take her money. While Sally told her brother

that Marko was "unlovable," that was during the period when Sally's feelings about Marko

soured, at least in part, as a result ofthe influence of Chris and/or Tamara. The court cannot

tell, however, to what degree the comments influenced Sally's financial decisions. The

court also has no ability to determine Sally's independent feelings towards Marko.

14. At some point, Marko separated from his wife and moved to Dallas where he lived in an

apartment in a high rise apartment building.

15. Over the course of2017 and until January 2018, Chris had financial trouble. On several

occasions, Sally gave him money to help pay for a lawyer for employment related

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litigation, his son's tuition and other reasons. The amount totalled between $35.000 and

$50,000. Sally was worried about the amount of money she had given him and it may have

impacted her financial situation.

16. Sally wanted to live out her last years in a home with family. Aside from any negative

influence, Sally would have preferred to live with Tamara and Chris in Maine than with

Marko in Dallas, particularly given Marko' s separation from his wife and change is

residence. She would have preferred the Maine residence and the more family atmosphere.

There was no evidence Marko was interested in having her live with him.

17. Between Marko's work, Chris's work and Tamara's nursing experience, Chris and Tamara

were better positioned to care for Sally in her decline.

18. Sally assisted Chris financially even before they agreed she would live with them. She

clearly would have felt compelled to assist them financially as she lived with him.

19. After the December 2017 agreement, Chris committed to a job offer at the University of

Southern Maine.

20. Tamara and Sally came to Maine to look at houses for sale.

21. Tamara took her to see Attorney Karen Mendelson in Michigan in Spring, 2018. Tamara

was present in the beginning, but the attorney met alone with Sally. Sally mentioned that

"she was afraid Marko was going to tell her what to do." Sally also told her she was afraid

Marko was going to take her money.

22. Sally wanted to pool their money to purchase the Maine property. Mendelson believed

that Sally was competent to make these decisions and was thinking independently.

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23. Any risk to Sally if she provided her money without her name on the property would have

occurred if the arrangement had not worked out during her lifetime. As it happened, her

goals and needs were met.

24. The attorney proposed a "Lady Bird deed" that would convey the property to Chris and

Tamara at the death of Sally. Until her death, Sally could still convey the property and

terminate the deed. She recommended they talk to a Maine attorney.

25. The attorney prepared a will that treated Marko and Chris equally. She did not create any

documents governing Sally's money while she lived.

26. Sally was clear she wanted to live with Chris and Tamara.

27. At this time, Sally's assets included her bank account and equity in the Ann Arbor house

totalling $355,000. She had monthly income from social security and her late husband's

small pension.

28. After visiting the attorney and describing her plan to use the equity in her Michigan house

to buy a house in Maine, Sally expressed relief and happiness to her friends.

29. None of the details were shared with Marko. There also was no evidence that Marko ever

inquired as to the arrangement.

30. Tamara and Chris bought a $605,000 house in North Yarmouth. It was far more than

Tamara and Chris would ever have been able to afford. It did include a nice basement

apartment for Sally. All of the equity in her house went into the Yarmouth house.

31. At closing, Sally suggested that it was not necessary that she be on the deed. She attended

the closing. The property was conveyed only to Chris and Tamara.

32. The property required about $90,000 in extra work. While the work was being done, Sally

spent a couple of weeks with Marko in Dallas before flying on to San Diego.

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33. Although she may have begun to suffer some memory loss, Sally's mind was good. She

suffered from some of the ailments common to advancing years, but was in otherwise in

good enough health to travel independently until July 2019.

34. The court is persuaded that until July, 2019, Sally was thinking independently and making

her own financial decisions.

35. In July, 2019, while visiting a friend in Ann Arbor, she fell and broke her pelvis.

36. After a stay at rehabilitation facilities in Michigan, she returned to Maine. Her health and

mind were noticeably weaker.

37. Her health continued to decline until she became bedridden. Sally died in Maine in June

2020. Chris and Tamara provided full time care and there is no claim that they did not

provide her with good care.

38. After she died, Chris told Marko she no longer had any assets that would pass according to

the will.

DISCUSSION

There are two lawsuits consolidated here. The first case is a lawsuit by Marko against

Chris and Tamera alleging that they interfered with Marko's expectancy of an inheritance from

Sally. The second case is a lawsuit by Marko as the personal representative of Sally's estate

seeking recovery under the Improvident Transfers of Title Act. The court addresses them each in

turn.

l. Intentional Interference with an Expectancy

To recover for intentional interference with an expectancy, Marko must prove four

elements by a preponderance of the evidence. He must prove: (I) the existence of an expectancy

of inheritance; (2) an intentional interference by a defendant through tortious conduct, such as

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fraud, duress, or undue influence; (3) a reasonable certainty that the expectancy of inheritance

would have been realized but for the defendant's interference; and (4) damage resulting from that

interference. Cote v. Cote, 2016 ME 94, ,i 12, 143 A.3d 117.

Undue influence is defined as unfair persuasion of a party who is under the domination of
the person exercising the persuasion or who by virtue of the relation[ship] between them
is justified in assuming that that person will not act in a manner inconsistent with his
welfare. A presumption of undue influence arises if the plaintiff shows by a preponderance
of the evidence that a confidential relationship existed between the defendant and the
decedent. A confidential relationship is one in which an individual placed trust and
confidence in the defendant and there was a great disparity of position and influence in the
relationship.

Id. (quotations and citations omitted).

Here, the key decision that would substantially interfere with Marko' s expectancy under

Sally's will would be when she decided in the Spring of2018 to convey the $355,000 in equity in

her Michigan home to Tamera and Chris to purchase the house in Maine. The court is not

persuaded that at the time she made that decision, transferred the funds, and agreed that the

property would be titled in their name, Sally was "under the domination of'' Chris or Tamara.

Similarly, the court is not convinced that at that point, the "there was a great disparity of position

and influence in the relationship." That was certainly true after July 2019. In the Spring of 2018,

however, Sally appears to be acting as her own free will. Her decision to want to live with family,

her choice of Chris and Tamara, and her decision to financially suppmt him given his

circumstances and her decision to live with them all make logical sense and were reached

independently. She had some medical issues, but she was still acting independently. It is more

likely than not she reached those decisions independently regardless of her feelings for Marko and

to the extent those feelings were influenced by Chris and Tamara. A parent's decision to

financially support the son or daughter who is financially weaker is not uncommon. Reasonable

people can disagree whether that is appropriate, but the court concludes Sally independently

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reached those decisions on her own. She was also able to meet her goal of living with her family

until her passing. 1

2. Improvident Transfer.

Here, Marko brings a claim on behalf of Sally's estate seeking to void her transaction to

Chris and Tamara, primarily the conveyance of her equity in the house to Chris and Tamara.

In any transfer of real estate or major transfer of personal property or money for less than
full consideration or execution of a guaranty by an elderly person who is dependent on
others to a person with whom the elderly dependent person has a confidential or fiduciary
relationship, it is presumed that the transfer or execution was the result of undue influence,
unless the elderly dependent person was represented in the transfer or execution by
independent counsel.

33 M.R.S. § 1022(l)(emphasis supplied). "Independent counsel" is "an attorney retained by the

elderly dependent person to represent only that person's interests in the transfer." 33 M.R.S. §

1021 (3). The Law Court has not identified with specificity factors for determining whether an

attorney was acting as "independent counsel." Young v. Lagasse, 2016 ME 96, ,r 10, 143 A.3d 131.

In Young, it was sufficient that counsel met twice with the elderly person "before completing the

transfer, including once for over an hour; that [counsel] advised her of the consequences and the

finality ofher decision; and that [counsel] believed she was aware of what she was doing." Id.

Here, for the reasons already described, the court does not find that Sally was dependent at

the time she transferred the sale proceeds from the house. Furthermore, the court finds that the

meeting with Attorney Mendelson was sufficient for the court to conclude she had met with

independent counsel.

1 The court is also not persuaded Marko proved the amount he would have received under the will if these events

had not occurred. The court agrees that as it turned out, Chris financially benefitted from these transactions. The
amount Marko would have benefitted from the Estate had these transactions not gone forward, however, is unclear.
The court has no understanding of the cost of Sally's other options after she sold the Ann Arbor house, particularly
after her fall in July 2019.

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The court recognizes Marko's legitimate concerns. Cln·is and Tamera disproportionately

benefitted financially from these transactions. Chris has not demonstrated financial independence,

relying on his mother from the time she donated his deposit on the Oregon house until her death.

Marko was cut out of his mother's decision making process and Chris benefitted. On the other

hand, Chris and Tamara provided the home and care she wanted. The court also concludes that

Marko did not meet the burden to prove that Sally did not make these decisions independently and

in her own interest.

The entry is: Judgments for the Defendants on all Counts in Dockets CV 20 433 and CV

21 434.

This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).

/
DATE: 0 J / L,3
Thomas R. McKeon
Justice, Maine Superior Court

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