Tuesday, June 28, 2016

Judge: Husband of murdered woman made fake will that left him everything

Judge: Husband of murdered woman made fake will that left him everything

Posted June 19, 2016, at 7:32 a.m.
Last modified June 19, 2016, at 9:49 p.m.
BELFAST, Maine — In August of 2013, the world shifted for Nick Day, when his mother, Lynn Day Arsenault, was shot to death by a man she didn’t know.
A few months later, it shifted again when his mother’s widower, Donald “Rusty” Arsenault of Garland, stepped forward with a purported will that left everything to him and nothing to Day Arsenault’s three adult sons.
“When we first saw it, we were very shocked,” Day said of the document that Arsenault claimed was his mother’s last will and testament. “We knew it would never have been my mom’s wish to have her family left with nothing. She always was very, very generous and caring and helpful. This would have been outside of her character to do something like that.”
From the beginning, he and his brothers doubted their mom would have left such a will behind. Earlier this month, Waldo County Probate Judge Susan Longley agreed with the Day family. After a two-day trial, which included testimony by a handwriting expert, Longley found that the document presented by Arsenault was fraudulent and that her signature on it had been forged.
“Neither the surviving spouse/[Personal Representative] nor the claimed witness nor notary were credible,” Longley wrote June 10 in an order that declared Day Arsenault had died intestate, or without a will. “Moreover, each was more vague than the next concerning details of the Decedent’s signing of a will. By this will, the Decedent left 100 percent to the surviving spouse. Though by all her other actions, she insisted on protecting and providing for sons, in the purported will, she did not include or mention her beloved sons in any way.”
Attorney Sarah Gilbert of Camden, who represents Nick Day, said on June 14 that she is suggesting that her client report the matter to the Waldo County District Attorney’s office, which would decide whether criminal activity has occurred and potentially bring charges in connection to the fraudulent will.
When contacted by the BDN, professor Jim Burke of the University of Maine School of Law said he doesn’t know of any similar criminal fraud cases that have been prosecuted in Maine, “but there is nothing to prevent it.” Because Arsenault did not succeed in passing the fraudulent will as a true will, if a charge were filed it may be attempted fraud instead of full fraud.
“My guess is that the DA might well decide it is not worth the effort,” Burke wrote in an email.
Calls to the Waldo County District Attorney’s office this week were not returned. Gilbert said she thinks “further inquiries into this fraud will be had in the context of continued litigation over the estate’s administration moving forward” and that any ramifications in that context would be civil in nature instead of criminal.
Efforts to reach Arsenault or his attorney, Ben Cabot of Dover, also were not successful. According to Gilbert, Arsenault has 21 days in which he can appeal Judge Longley’s decision.
“From our perspective, this was a deliberate attempt to not only defraud Lynn’s children but to defraud the court,” Gilbert said. “And to mislead a tribunal into accepting a document that is fraudulent.”
Lynn Day Arsenault was 55 when she was shot and killed by Todd Gilday, a one-time tax examiner who lived in Belfast. In 2013, Day Arsenault was splitting her time between Garland, where she lived with her husband, and Belfast, where she worked for many years at Bank of America. At his sentencing hearing in 2014, Assistant Attorney General Leane Zainea told the court that Gilday was angry at Lynn Day Arsenault’s son, Mathew Day. The shooter, who was sentenced to 50 years in prison, brought with him a Mossberg shotgun the night of Aug. 28, 2013, when he went to the yellow house on Waldo Avenue to confront Mathew Day.
Day Arsenault, who owned the home, was there at the time. Gilday shot through the door of the house, then shot Mathew Day in the stomach and arm, seriously injuring him. Mathew Day later told police that his mother came out of her bedroom and may have tried to grab the gun from Gilday before he fired at her. She was killed by a shot to the chest at close range.
At a vigil held shortly after her death, she was remembered by friends and co-workers as a kind, generous person with a beautiful smile who loved and nurtured her sons and family members.
“She was the most amazing, genuine, caring, trusting, loving person that any of us had ever known,” Nick Day said this week. “Her life, her hopes, her dreams and her future were all taken away from her. I know that her last wishes would have been for the family to be taken care of and I didn’t want that to be taken away, too.”
According to the probate court decision, Day Arsenault’s true heirs are Donald J. Arsenault, Jr., Nicholas Day, Mathew Day and Misty Temple Day, the personal representative of her son Christopher Day, who died last year.
In Waldo County, Register of Probate Sharon Peavey said that about 100 wills are probated there every year. Of that number, fewer than five are contested each year. The number of contested wills ultimately declared fraudulent by the court is very, very small, she said.
“It is very rare,” Peavey said. “I have been here for over 30 years. If I had to guess, I could count on one hand the number of times a will has been overturned.”
According to Longley’s order, Arsenault has guessed his deceased wife’s estate is worth about $150,000 but has never provided any figures to her sons. Her estate included the Belfast home, which Arsenault already has sold. Last year, Arsenault was awarded $1 million in a wrongful death lawsuit he had filed against Gilday — a sum his attorney said was unlikely to be recoverable.
“Nobody knows what Lynn’s estate is,” Gilbert said. “He sold Lynn’s house in Belfast without court approval, and we have no idea what she had for savings or assets. It will be very interesting to find what assets Rusty has taken.”
Day Arsenault and Rusty Arsenault, her fourth husband, had been married for fewer than 10 years. He and his stepsons had a strained relationship, according to Nick Day, who said he is glad the legal battle over his mother’s will is over, at least for now.
“I can’t really speak to what we’re going to be doing next, I don’t know if anyone is really sure. We’re all just trying to rebuild as a family and to get back to some sort of normalcy,” he said. “We couldn’t really grieve the way we wanted to because this came about so quickly and so suddenly. Daily, we were reminded of what a horrible thing had happened to the family. There aren’t many words or phrases I can use to describe how horrible this has been.”

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