Green v. McClintock

ARTHUR, J. This case concerns a challenge to a last will and testament of the late Kenneth Green, as well as a contention that Maryland lacks jurisdiction to consider the challenge. In 2003, the decedent executed a will in which he made his friend, Betty McClintock, the prime beneficiary. In 2009, when he was terminally ill, regularly taking opiates for pain, and completely dependent upon his brother, who had taken him from Maryland to Kentucky and held him there incommunicado, he executed a second will in which he revoked the earlier will and gave all of his assets to his brother. McClintock challenged the second will, contending that it had been procured by fraud and undue influence.

After a bench trial that extended over five days, the Circuit Court for Allegany County agreed. As a consequence of that decision, the earlier will, which favored McClintock, became the decedent’s last will and testament. We shall affirm. Factual and Procedural History The multi-volume record in this case discloses few areas of agreement between the contending parties.

Our obligation, however, is not to review and weigh the parties’ respective contentions, but to recount the facts in the light most favorable to McClintock, the party who prevailed below. L.W. Wolfe Enters., Inc. v. Maryland Nat’l Golf, L.P., 165 Md.App. 339, 343 , 885 A.2d 826 (2005). Those facts are as follows: A. The Parties 1. The Testator, Kenneth Green.

The testator, Kenneth Green (“Kenneth”), was born on May 20, 1934, and died on January 19, 2010. Kenneth was raised on a farm that was ³⁴² owned by his parents in Lonaconing, Maryland. His only sibling was his brother Albert Green (“Albert”). Kenneth never married and had no children.

Except for a few brief periods (when he was in the military, when he moved to Ohio for a job, and at the very end of his life), Kenneth spent the entirety of his life on or near the Green farm. For much of his life, he worked for Westvaco in Allegany County. Before his father died, Kenneth lived on the farm with his parents, to whom he was devoted. After his father’s death, Kenneth remained on the farm alone, raising cattle and hay.

Aside from his mother, the farm and his cattle were the most important things in Kenneth’s life. 1 2. The Beneficiary, Albert Green. Kenneth’s brother Albert also worked for Westvaco for many years, but moved to West Virginia, near the border with Garrett County, in 1987. Kenneth’s and Albert’s mother, Ida, joined Albert in West Virginia after their father died.

In 1998, a few years after his mother died, Albert retired and moved to Kentucky, where his sons lived. 3. The Personal Representative, Andrew Green. Albert’s son, Andrew Green (“Andrew”), is the personal representative under the will that has been challenged in this case. Andrew, who lives in Kentucky, had only limited contact with his uncle Kenneth for many years. 4.

The Caveator, Betty McClintock. Betty McClintock was one of Kenneth’s co-workers at Westvaco. During the time when she and Kenneth worked for Westvaco, she spoke with him regularly, on almost a daily basis. Kenneth admired her because she had raised four children on her own after her husband died in an automobile accident in the 1970s. ³⁴³ The circuit court found that, from the late 1980s onward, Kenneth and McClintock had a long-term, stable, caring, and supportive relationship.

B. Ida Green’s Death and the Litigation Over Her Estate The roots of the present dispute can be traced back to May 1995, when Kenneth’s and Albert’s mother, Ida, died, without a will to direct who would inherit the Green farm or her other assets. For several years, no one opened an estate on her behalf. Instead, Kenneth continued to live on the farm and to raise cattle and engage in other farming activities there. In about 2000 or 2001, Kenneth approached James Oberhaus, the president of Maryland Fuel Corporation, which owned the mineral rights under the Green farm.

Kenneth asked Oberhaus for assistance in obtaining sole title to the Green farm. Oberhaus hired John Robb, a local attorney familiar with real estate matters, to assist Kenneth. With Robb’s assistance, Kenneth opened an estate for his mother in August 2002, more than seven years after her death. The estate proceedings prompted a dispute between Kenneth and his brother Albert.

Kenneth contended that the farm was his and that the $192,000.00 in assets in Ida’s estate were to be divided equally between the brothers; Albert, on the other hand, contended that the farm and the other assets should be divided evenly between the two brothers. In October 2003, the orphans’ court agreed with Albert that the farm should go to the brothers as tenants in common, and Kenneth appealed. C. Kenneth’s First Will, in 2003 In the midst of the legal dispute between Kenneth and his brother, Oberhaus (of Maryland Fuel) suggested to Kenneth that he should have a will. Oberhaus was motivated, in part, by the prospect of obtaining title to the surface rights to the Green farm (i.e., the right to strip-mine the farm), which he had previously attempted to obtain from Kenneth.

Oberhaus ³⁴⁴ referred Kenneth to Maryland Fuel’s lawyer, Donald Nelson, for the purpose of drafting a will. Oberhaus arranged Kenneth’s first meeting with Nelson. The meeting took place in Oberhaus’s office, and Oberhaus was present for the first 10 to 15 minutes of it. Kenneth told Nelson that he wanted his entire estate to go to McClintock because she was a hard worker and had devoted a great deal of effort to raising her children after her husband’s death.

Neither Nelson nor Oberhaus knew McClintock at the time. Kenneth specifically told Nelson that he did not want Albert or Albert’s wife, Stella, to get any of his property. Consistent with that directive, the will makes no provision for Albert or any member of Albert’s family. On Nelson’s advice, Kenneth agreed to have the will include a provision that gave Maryland Fuel the option to purchase the Green farm from his estate after his death.

The provision contained a mechanism to establish the purchase price. In addition, it directed that if Maryland Fuel exercised the option, the purchase price would go to McClintock. 2 Kenneth executed the 2003 will at an M & T Bank branch office on March 5, 2003. According to Oberhaus’s employee, Linda Malamis, who was a witness to the will, Kenneth told a bank employee at the time that he wanted to take care of McClintock. In addition, according to the bank employee, Kenneth stated that he disliked Albert’s wife because she wanted all of his money and property and that he did not want Albert’s wife to receive any of his assets. ³⁴⁵ D. The Settlement of the Litigation Concerning Ida Green’s Estate In April 2004, a little over a year after he had executed his will, Kenneth traveled to Kentucky to take Albert’s deposition in his appeal in the litigation concerning their mother’s estate.

Kenneth had never previously gone to Kentucky in his life. Before any substantive questioning began in the deposition, Kenneth and Albert met privately and reached an agreement. Under the terms of the agreement, Kenneth would receive the Green farm, while Albert would receive all the money in their mother’s estate, except for an advance that Kenneth already received. While he was in Kentucky in connection with the deposition and the settlement discussions, Kenneth did not go to Albert’s farm or meet with any of Albert’s family members, including Albert’s son, Andrew, the personal representative under the will that has been challenged in this case.

E. After the Settlement With Albert After the settlement with Albert, the personal representatives of the estate conveyed the Green farm to Kenneth. Kenneth later told his neighbor, Jeremy Kiddy, that he had had a hard time getting the farm. Over the next several years, Kenneth continued to live alone on the farm and to work the farm. He remained close to a small circle of friends and had no meaningful contact with Albert, Albert’s wife Stella, or Albert’s son Andrew.

Kenneth’s friends included Kiddy, who helped him on the farm and saw him on almost a daily basis from 2004 until late July 2009, and McClintock, who accompanied Kenneth on errands and saw him on at least a weekly basis from March 2006 until late July 2009. In addition to the farm, Kenneth owned a number of annuities, savings bonds, bank accounts, and brokerage accounts. Beginning in 2004, Kenneth started making McClintock the beneficiary on his accounts. In addition, he enlisted ³⁴⁶ the aid of Oberhaus’s employee, Linda Malamis, to make McClintock the payee on his savings bonds upon his death.

F. Kenneth’s First Serious Illness, in 2006, and Its Aftermath In May 2006, Kenneth was diagnosed with rectal cancer. Several months earlier, he had given McClintock a healthcare power of attorney. After undergoing a colostomy in Morgantown, West Virginia, Kenneth stayed with his niece (Albert’s daughter) Amy Thompson. While he was staying with the Thompsons, however, Kenneth asked McClintock to take him to his chemotherapy treatments. 3 Kenneth became distrustful of Thompson’s family, suspecting that someone had gone through the personal papers that he kept in the trunk of his car.

He told Malamis that he did not want his family to know his financial situation. He requested that McClintock keep all of his banking and investment records, which she did until September 2009. G. The Period from Late 2006 to Early 2009 After several months with the Thompsons, Kenneth returned to the Green farm. Thereafter, McClintock and Kenneth would meet at least weekly, and she would accompany him on his errands.

On one of those excursions, Kenneth took McClintock to the Green cemetery, showed her his parents’ graves, and told her that he wanted to be buried beside his parents. During this same period, Kenneth instructed Malamis and the lawyer, Nelson, that he wanted McClintock to inherit all of his assets and that he wanted to leave nothing to his brother and his family. He expressed similar sentiments to his neighbor, Kiddy. ³⁴⁷ H. The Onset of Kenneth’s Second and Final Illness In April 2009, McClintock took Kenneth to his regular physician, who told Kenneth that he was experiencing a relapse. In May 2009, McClintock took Kenneth to an oncologist, who diagnosed Kenneth with metastatic rectal cancer, which had spread to his lungs.

Around this time, Albert, his son Andrew, and other family members visited Kenneth on the Green farm for Kenneth’s birthday (which was on May 20). After the guests left, Kenneth told Kiddy that he informed Albert and his family that they did not need to worry about the farm because they would not be inheriting it. Shortly thereafter, Kenneth underwent surgery. During his recovery, Kenneth stayed with Adam Johnson, his great-nephew (and Albert’s grandson).

McClintock continued to see Kenneth once a week during this period. I. Kenneth’s Admission to Sacred Heart Hospital On July 31, 2009, McClintock went to visit Kenneth at the home of his great-nephew and saw that he appeared to be very ill. On that day, Kenneth was admitted to Sacred Heart Hospital in Cumberland. Upon his admission, Kenneth’s discharge plan was that he would return to the Johnson home upon his release.

In fact, the Johnsons requested that home health services from the hospital be made available when Kenneth arrived at their home. While at the hospital, Kenneth was placed on a fentanyl patch and oxycodone. The hospital nurses noted some confusion on Kenneth’s part and described Kenneth as giddy or happy. Kenneth remained on those opioid analgesics until his death several months later. 4 McClintock visited Kenneth in the hospital every day until his discharge on August 13, 2009. ³⁴⁸ J. Albert’s Offer of Assistance On August 3, 2009, a few days after Kenneth’s admission to the hospital, Albert told the hospital staff that he was willing to take Kenneth to Kentucky and that he did not want Kenneth to live in a nursing home.

Kenneth’s medical records, however, contained no previous mention of a nursing home. Moreover, the reference to a nursing home conflicts with the prior discharge plan, under which Kenneth was to return to his great-nephew’s home in Maryland. 5 On August 6, 2009, a few days after Albert had offered to take Kenneth to Kentucky, Albert met with Kenneth’s oncologist and Kenneth. While he was in Maryland, Albert and his son Andrew also visited the Green farm. K. The Limited Power of Attorney in Favor of McClintock On August 7, 2009, Malamis brought Kenneth’s advance directive to the hospital, and it was inserted into his medical records.

Kenneth told the hospital staff that he did not want his family to know that he had a do-not-resuscitate order in effect. While Malamis was at the hospital, Kenneth informed her that he wanted McClintock to perform some tasks for him, and they discussed giving her a power of attorney. Kenneth then spoke by telephone with his attorney, Nelson, who prepared a limited power of attorney in favor of McClintock. Nelson emailed the power of attorney to Malamis, and Malamis presented it to Kenneth, who executed it.

The limited power of attorney instructed McClintock that Kenneth wanted his records to go to her home, that he wanted her to close his ³⁴⁹ account at First Peoples Federal Credit Union and to deposit the proceeds into his M & T Bank account, and that she should cash some of his savings bonds to pay some of the medical bills that had accumulated. After executing the power of attorney, Kenneth spoke to Oberhaus of Maryland Fuel and confirmed that the instrument appropriately documented his wishes. Albert and his son Andrew were at the hospital on that date. Notably, as of that date, the discharge plan remained unchanged—Kenneth was to return to his great-nephew’s house in Maryland.

L. Kenneth’s Announcement that He “Had to Go to Kentucky” On McClintock’s regular, daily visit to the hospital on August 9, 2009, 6 Kenneth told her that he “had to go to Kentucky” with Albert. Otherwise, Kenneth said, he would have to go to a nursing home. Kenneth had never previously said anything to McClintock or to his acquaintances (Malamis, Nelson, or Kiddy) about going to Kentucky after his discharge. McClintock offered to allow Kenneth to stay at her house and questioned why he would want to leave Maryland and stay with Stella, whom he disliked. 7 During the conversation, Kenneth became distraught and had a breakdown.

McClintock did not pursue the issue further. M. Stella Green’s Conversation with the Hospital Social Worker On August 11, 2009, the hospital “staff’ informed a hospital social worker that Kenneth wanted to go to Kentucky. Ac ³⁵⁰ cording to Kenneth’s medical records, the social worker had talked to Albert’s wife, Stella, who told her that “they want to bring him back to the farm where they live and where they grew up.” The circuit court found that the reported statement was “blatantly and deliberately false,” as Kenneth had gone to Kentucky only once in his life—for his brother’s deposition in their litigation over their mother’s estate. In addition, according to the medical records, Stella reportedly warned the social worker to be careful of McClintock, saying that she was an old co-worker with the reputation of being a “black widow” and that she was using a power of attorney to keep Kenneth in Maryland. 8 N. Kenneth’s Conversation with Kiddy about Going to Kentucky Like McClintock, Kenneth’s neighbor, Kiddy, would also regularly visit Kenneth in the hospital.

Kiddy reported that Kenneth was concerned about his farm and his cattle. Kiddy thought that Kenneth’s discharge plan was for him to stay with Betty McClintock. 9 On a visit on August 13, 2009, however, Kenneth told Kiddy that he was leaving for Kentucky with Albert. When Kiddy questioned the reasons for this sudden change of plans, Kenneth said that he was staying there only for two weeks and would then return to the farm. Albert confirmed that he would bring Kenneth back in two weeks.

O. McClintock’s Last Conversation with Kenneth On that same day, August 13, 2009, McClintock visited Kenneth again and reiterated that he could stay at her house. ³⁵¹ When McClintock had to leave for work, Kenneth asked if she would come back after work. She replied that she would. McClintock never saw Kenneth again: later that day, Albert and his son Andrew removed Kenneth from the hospital and took him to Kentucky. P. The First Kentucky Power of Attorney The following day, August 14, 2009, Andrew downloaded a power of attorney from the internet.

He called a friend and a notary to request that they come to Albert’s home to witness the signing of a power of attorney by his uncle. Kenneth was seated in a hospital bed, with metal rails to prevent him from falling out, when Andrew read the document to him. Kenneth executed the power of attorney, which was in favor of Albert Green. Q. Andrew and Albert Take Control of Kenneth’s Accounts A day or two later, Andrew and Albert returned to Maryland to obtain control of Kenneth’s assets.

They went first to the First Peoples credit union, where Albert presented the new power of attorney. There, they learned that Kenneth’s account had been closed and the proceeds disbursed. 10 Upon receiving that information, Andrew and Albert telephoned Kenneth and told him that McClintock had closed the account and taken his money. Andrew and Albert then went to M & T Bank and obtained Kenneth’s records, using the power of attorney. 11 In addition, they effected a change of address to Albert’s home in Kentucky. ³⁵² While they were in Maryland, Andrew and Albert retrieved some items from Kenneth’s home. Either on this visit or an earlier visit when Kenneth was still in the hospital, Andrew and Albert obtained Kenneth’s lock box and brought it back to Kentucky.

Among other items, the box contained Kenneth’s 2003 will. A few days later, Albert, using the power of attorney, withdrew $10,162.55 from Kenneth’s M & T bank account. During this same period, Albert and Andrew communicated with Robert Watson, a Maryland attorney, with regard to the Green farm. R. The Powers of Attorney On August 23, 2009, Andrew asked two friends and a notary to come to Albert’s house to witness Kenneth’s signing of several additional documents: a statement denying that Kenneth had executed the power of attorney in favor of McClintock; a document indicating his desire to transfer his farm to Albert; and a statement directing the attorney, Nelson, to cease activity on Kenneth’s behalf.

The signing was recorded on video at Andrew’s insistence. Andrew read the series of documents to Kenneth, who was wearing a hospital gown and lying in a hospital bed in Albert’s house. Albert was present as well, as was an unidentified woman whose voice is heard on the recording. While he was signing the third document, Kenneth, who was smiling at the time, said: “We can handle it.

It may not be right, but we can handle it. Rescind any power of attorney to Donald Nelson.... Where to sign ... knows he needs to sign his name.” When Kenneth had finished signing, Andrew said, “[Tjhat will be good enough, I hope.” On that same day, August 23, 2009, Kenneth executed another power of attorney, this one in favor of Andrew. No ³⁵³ one made a video recording of the execution of that power of attorney. 12 S. Efforts to Cut Off Kenneth’s Access to McClintock Meanwhile, on August 27, 2009, a palliative care visit occurred at Albert’s house.

The medical records from the visit reflect that someone—presumably a member of Albert’s family—told the nurse that McClintock was one of Kenneth’s former friends and that she should not be provided any information about Kenneth’s health status. On the following day, August 28, 2009, Dr. Ann Colbert visited Kenneth at Albert’s house. During the visit, Stella told the doctor that “there had been a lot of trouble with a woman named Betty McClintac [sic] who had forged her signature on the [power of attorney].” Stella also told the doctor that McClintock had wanted to place Kenneth in a nursing home and had “taken quite a bit of his money.” She instructed the doctor that McClintock was “not to be involved” in Kenneth’s care and that she and Albert had prevented McClintock from coming to visit or being involved. T. The 2009 Will By September 2, 2009, Leslie Richardson, a Kentucky attorney, had drafted a new will for Kenneth.

The circuit court found no evidence, however, that Richardson actually knew Kenneth or had ever met him. Instead, Andrew had communicated with Richardson about the will, and Albert and Stella had picked up the draft will from her office. Kenneth was housebound and thus unable to pick up the will. 13 On September 2, 2009, Andrew asked a few of his friends to come to his father’s home and witness the execution of the new will. While Kenneth was in his hospital bed, Andrew ³⁵⁴ stood beside the bed and read the will.

Kenneth “agreed” with the will and executed it, and it was witnessed and notarized. No one made a video recording of the execution of the will. U. The Use of the Power of Attorney to Convey the Farm to Albert On September 3, 2009, the day after the execution of the will, Andrew traveled to Maryland to see Robert Watson, his Maryland attorney. Using his power of attorney, Andrew executed a deed by which he conveyed Kenneth’s farm to Albert.

The deed recites that Kenneth is “incapacitated.” 14 V. Additional Steps to Take Control of Kenneth’s Assets On September 16, 2009, Albert used his power of attorney to open a bank account for himself and Kenneth at Citizens Bank in Kentucky. Despite the power of attorney, Albert established the account as a joint account rather than as a fiduciary account. Meanwhile, beginning in mid-August 2009, either Albert or Andrew had communicated with Kenneth’s investment managers and with others who held his assets. By October 1, 2009, Albert and Andrew had succeeded in changing all beneficiary designations on Kenneth’s accounts from McClintock to Albert. 15 Andrew or Albert sold Kenneth’s cattle during this time period as well.

There was no evidence that the proceeds of the cattle sale were deposited into any of Kenneth’s bank accounts. 16 ³⁵⁵ Between October 1, 2009, and December 31, 2009, Albert withdrew $21,338.38 from Kenneth’s account to pay for an addition to Albert’s home. Also, on January 15, 2010, four days before Kenneth’s death, Albert paid Andrew $2,000 from Kenneth’s account as “reimbursement for travel.” W. Additional Efforts to Hold Kenneth Incommunicado Beginning in mid-August 2009, Malamis and Kiddy repeatedly tried to communicate with Kenneth in Kentucky. Kiddy was successful in talking briefly to him on one occasion, but Malamis was unable to reach him. Both Kiddy and Malamis left numerous phone messages that were never returned.

Kiddy even traveled to Kentucky to find Kenneth, but was unable to locate Albert’s farm. In September 2009, Nelson, the attorney, spoke with Kenneth once as well. Kenneth wanted to make sure that “everything was okay” with his property and will, and Nelson reassured him that nothing was amiss based on the information that he had at the time. Between August 13, 2009, when Albert and Andrew took him to Kentucky, and his death on January 19, 2010, Kenneth had no other contact with anyone in Maryland with whom he had previously been close.

Throughout that period, Kenneth was homebound. He went outside only once. He left his brother’s house only to be transported to a hospice shortly before he died. He was completely dependent on his brother and sister-in-law for food, shelter, and medical care.

X. The Orphans’ Court Proceedings After Kenneth’s death, Malamis and Nelson sought to introduce the 2003 will to probate, while Andrew Green sought to introduce the 2009 will. In his notice of judicial probate, Andrew specifically asserted that Kenneth was domiciled in Allegany County at the time of his death. On June 18, 2010, the orphans’ court held a hearing for the purpose of admitting the 2009 will to probate. At the hearing, ³⁵⁶ Andrew asserted that, although Kenneth’s death certificate states that Allegany County was his usual residence, he had established a residence in Kentucky by the time of his death.

Thus, Andrew asserted that the estate should be opened in Kentucky rather than Maryland. The orphans’ court, however, unanimously decided that the estate should remain in Maryland. In so doing, the court accepted the 2009 will for probate and appointed Andrew to administer the estate. 17 Andrew did not appeal the orphans’ court’s rejection of his argument that Kentucky, and not Maryland, was the appropriate forum for the proceedings to probate Kenneth’s estate. He informed us at oral argument that he has taken no steps to open an estate in Kentucky.

Y. The Caveat Proceeding On September 9, 2010, McClintock filed a petition to caveat the 2009 will, alleging that the will was procured as a result of fraud, undue influence, or duress imposed by Albert or Albert’s other family members. In response, Andrew petitioned to transfer the caveat proceeding to the circuit court in accordance with Md. Rule 6-434. In his response, Andrew specifically stated that Rule 6-434 empowers the orphans’ court “to transmit issues of fact within its jurisdiction for trial in the Circuit Court.” When the orphans’ court transferred its record to the circuit court for the caveat proceeding, the register of wills certified that she had sent “the original papers as stated on the estate docket in the Estate of Kenneth William Green, late of Allegany County, Maryland.” As previously stated, after a lengthy bench trial, the Circuit Court for Allegany County held that the 2009 will was invalid because it was procured by fraud and undue influence. Andrew filed this timely appeal, in which he not only challenges several rulings at trial, but also whether Maryland had juris ³⁵⁷ diction to adjudicate the validity of the will that he himself submitted to probate. 18 Questions Presented Andrew presents three questions for our review, which we have rephrased as follows: I. Does Maryland lack subject matter jurisdiction over the estate of Kenneth Green?

II

Did the circuit court err in allowing Kenneth Green’s former attorney, Nelson, to testify regarding confidential communications made by Kenneth Green with regards to the 2003 will?

III

Was there sufficient evidence for the court to find that the 2009 will was the product of fraud and undue influence? We find no error and, hence, shall affirm. Discussion I. Maryland Has Jurisdiction Andrew submitted the 2009 will to probate in Maryland, specifically asserting that Kenneth was domiciled in Allegany County at the time of his death. As a consequence, a Maryland probate court vested Andrew with the status of Kenneth’s personal representative.

As such, Andrew gained a number of procedural advantages in the dispute with McClintock, including the right to assert Kenneth’s attorney-client privilege and the ability to require McClintock to bear the burden of proof in the caveat proceeding. Andrew himself petitioned to transmit the caveat proceeding to the circuit court, asserting, in support of his petition, that Md. Rule 6-434 empowered the orphans’ court to transmit contested issues of fact “within its jurisdiction.” Nonetheless, now that the circuit court has ³⁵⁸ ruled against him in that dispute, Andrew raises a preliminary issue that he either chose not to raise or neglected to raise in the circuit court—whether Maryland may exercise subject matter jurisdiction over Kenneth’s estate. It is tempting to hold that Andrew has either waived that issue (because of his neglect) or is equitably estopped from raising it (because of his gamesmanship). A party, however, cannot waive an objection to a court’s subject matter jurisdiction.

See, e.g., State v. Walls, 90 Md.App. 300, 305 , 600 A.2d 1165 (1992). Moreover, just as parties are unable to agree to confer subject matter jurisdiction upon a court (Stewart v. State, 287 Md. 524, 527 , 413 A.2d 1337 (1980); Walls, 90 Md.App. at 305 , 600 A.2d 1165 ), so too are they unable to create subject matter jurisdiction by estoppel. See, e.g., StreetEasy, Inc. v. Chertok, 752 F.3d 298, 306 (2d Cir.2014) (citing Williams v. United States, 947 F.2d 37, 39 (2d Cir.1991)). Indeed, because a court has no power to decide a dispute unless it has subject matter jurisdiction, a party can question the existence of subject matter jurisdiction at any time—even on an appeal in a case in which the existence of jurisdiction was neither raised nor decided below.

Harris v. Simmons, 110 Md.App. 95, 113 , 676 A.2d 944 (1996); Walls, 90 Md.App. at 305 , 600 A.2d 1165 . Consequently, we must consider Andrew’s challenge. Although Andrew frames his challenge in terms of subject matter jurisdiction, he does not explain why, in his view, the subject matter of this dispute falls outside the scope of what the orphans’ court and circuit court were empowered to decide. He certainly does not raise a typical objection to subject matter jurisdiction, such as an objection that a court has decided a type of case that it is not empowered to decide (e.g., an objection that a circuit court decided a replevin action, which lies within the exclusive original jurisdiction of the district court).

Md. Code (2013 Repl. Vol.), § 4-401(2) of the Courts and Judicial Proceedings Article. Nor does he complain that the court purported to exercise a power that has not been conferred upon it (e.g., a complaint that a district court ³⁵⁹ attempted to exercise general equity jurisdiction, which, by statute, see id. § 4-402(a), it does not have). In fact, in none of his arguments about subject matter jurisdiction does Andrew ever cite or discuss the statutory basis for probate jurisdiction in Maryland.

The basis for that jurisdiction is found in title 2, subtitle 1, of the Estates and Trusts Article. Under Md. Code (1974, 2011 Repl. Vol.), § 2-102(a) of the Estates and Trusts Article, the orphans’ court “may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent.” 19 Furthermore, under Md. Code (1974, 2011 Repl. Vol.), § 2-105(b) of the Estates and Trusts Article, the orphans’ court “shall” transmit issues of fact to “a court of law” upon “the request of an interested party” “made before the [orphans’ court] has determined the issue of fact.” 20 The courts in this case proceeded in precise accordance with these jurisdictional grants: the orphans’ court conducted judicial probate proceedings (in response, in part, to the notice of judicial probate that Andrew had filed); the probate proceedings included the caveat petition that McClintock had filed; and at McClintock’s request (and with Andrew’s consent), the orphans’ court transmitted the caveat case to the circuit court, a court of law, for a determination of the relevant factual issues.

In these circumstances, it is not immediately clear ³⁶⁰ how the Maryland courts have exceeded their subject matter jurisdiction. Without citation to any authority, however, Andrew argues that in a probate ease a Maryland court has subject matter jurisdiction only if the decedent was domiciled in Maryland at the time of his or her death. Andrew’s argument is difficult to reconcile with Md. Code (1974, 2011 Repl. Vol.), § 5-103(a) of the Estates and Trusts Article, which specifically recognizes that a Maryland court can probate the estate of a person who was domiciled elsewhere at the time of his or her death, at least as long as the decedent owned property in Maryland at that time: The venue for administrative or judicial probate is in the county in which the decedent had his domicile at the time of his death, or, if the decedent was not domiciled in Maryland, the county in which the petitioner believes the largest part in value of the property of the decedent in Maryland was located at the time of his death.

Accord Wright v. Nugent, 23 Md.App. 337, 353 , 328 A.2d 362 (1974), aff'd, 275 Md. 290 , 338 A.2d 898 (1975) (per curiam) (holding that Talbot County was the proper venue for administrative probate of the estate of a decedent who was domiciled in the District of Columbia at the time of his death, because the petitioner for probate believed that the decedent’s property in Talbot County represented the largest part in value of his property located in Maryland); see also Restatement (Second) of Conflicts of Law § 314 cmt. b (1971) (stating that, as a general rule, “[a]ny state has jurisdiction to admit a will to probate or to appoint an executor or administrator for a decedent”). In other words, if the decedent was domiciled in a particular county at the time of death or if the decedent had more property in that county than anywhere else in the State (in the belief of the person who petitions for probate), the orphans’ court for that county is the proper venue for probate proceedings. But because a court can be a proper venue only if it has jurisdiction, jurisdiction cannot depend solely on whether the ³⁶¹ decedent was domiciled in Maryland at the time of his or her death: the court may also have jurisdiction if the decedent simply had property in Maryland at the time of death. See Kortobi v. Kass, 182 Md.App. 424, 431 , 957 A.2d 1128 (2008), aff'd, 410 Md. 168 , 978 A.2d 247 (2009) (stating that the State may subject all property within its borders to its laws).

Both parties urge us to decide where Kenneth was domiciled at the time of his death. The issue of domicile, however, requires a fact-intensive inquiry into Kenneth’s intentions (see Blount v. Boston, 351 Md. 360, 367-73 , 718 A.2d 1111 (1998)), which the circuit court was not asked to conduct, and which it would be inappropriate for an appellate court to conduct in the first instance. Cf. Von Dunser v. Aronoff, 915 F.2d 1071, 1072-76 (6th Cir.1990) (where party challenged subject matter jurisdiction for first time on appeal by raising issue of domicile, and thus of diversity of citizenship, court remanded for factual determination regarding domicile).

Furthermore, although it is fairly