## Facts

- H. Dudley Wright (the testator) executed a will on January 11, 1992 stating that Maine law would govern the administration of his estate.
- The testator died on January 18, 1992 in Maine.
- The will provided for distributions to the testator’s wife and other children but made no distribution to two children from a prior marriage, Holly Wright and Dana Wright Holland (the Children).
- The Children were beneficiaries of trusts the testator had created in 1960.
- The estate included interests in property located in France and Switzerland.
- The York County Probate Court determined that the testator was domiciled in Switzerland at death, making Swiss law relevant to the validity of the will’s Maine choice-of-law clause.
- The Children asserted they were entitled to forced shares under Swiss succession law and argued Swiss law would not give effect to the will’s election of Maine law.
- The Estate argued that Swiss conflict-of-laws rules (including Article 90 of the Swiss Federal Law on Private International Law and related treaty provisions) allow a foreign national domiciled in Switzerland to choose the law of his nationality to govern succession, and that a Swiss court would honor the Maine-law clause.
- After receiving evidence on Swiss law, the Probate Court held that a Swiss court would enforce the choice-of-law provision and rejected the Children’s forced-share claim.
- The Probate Court also awarded the Children attorney’s fees and expenses under 18-A M.R.S.A. § 1-601.
- On appeal, the Estate attempted to rely on new expert affidavits on Swiss law that were not presented to the Probate Court; the Children moved to strike those materials.

## Issues

1. Under Swiss conflict-of-laws rules, would a Swiss court give effect to a will provision by a U.S. citizen domiciled in Switzerland electing Maine law to govern the administration/disposition of the estate, rather than applying Swiss forced-heirship rules?
2. May the Estate submit and rely on new expert affidavits regarding Swiss law for the first time on appeal, or must those materials be stricken as outside the record?
3. Did the Probate Court abuse its discretion by awarding attorney’s fees and expenses to the Children under 18-A M.R.S.A. § 1-601?

## Decision

- The Maine Supreme Judicial Court (Law Court) affirmed the Probate Court’s judgment.
- The court agreed that Swiss law would give effect to the will’s election of Maine law, defeating the Children’s claim to Swiss forced shares.
- The court granted the Children’s motion to strike the Swiss-law affidavits submitted for the first time on appeal and declined to consider those materials.
- The court affirmed the award of attorney’s fees and expenses to the Children under 18-A M.R.S.A. § 1-601.

## Legal Principles

- Under M.R. Civ. P. 44A, incorporated in probate proceedings by M.R. Prob. P. 44A, the determination of foreign law is treated as a ruling on a question of law and is reviewed de novo on appeal.
- In determining foreign law under Rule 44A, the trial court may consider relevant sources, including testimony and other materials, to decide what the foreign jurisdiction’s law provides.
- Under Swiss private international law (including Article 90 of the Swiss Federal Law on Private International Law, as applied in this case, and related treaty provisions), a foreign national domiciled in Switzerland may elect the law of his nationality to govern succession; a Swiss court would recognize that election.
- Appellate review is confined to the record made in the trial court; parties may not expand the record by attaching new affidavits or other evidentiary materials to appellate briefs, and such submissions may be stricken.
- Under 18-A M.R.S.A. § 1-601, a probate court may award attorney’s fees and expenses for necessary services when litigation is brought in good faith and assists the estate’s administration; success on the merits is not required, and the award is reviewed for abuse of discretion.

## Conclusion

Estate of Wright holds that, even though the testator was domiciled in Switzerland, Swiss conflict-of-laws rules would honor his will’s election of Maine law, so the omitted children could not claim Swiss forced shares; the Law Court also refused to consider new Swiss-law affidavits offered for the first time on appeal and upheld the Probate Court’s discretionary fee award to the children under § 1-601.


Estate of Wright, 637 A.2d 106 (1994)