August 19, 2019
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Murdered woman’s sons sue stepfather over forged will

Contributed | BDN
Contributed | BDN
Lynn Arsenault

BELFAST, Maine — The financial assets of a Garland man and two Portland businessmen have been frozen by a judge as Lynn Day Arsenault’s sons press their case over their murdered mother’s will in Waldo County Superior Court.

The two sons, Mathew and Nick Day, are suing their former stepfather, Donald “Rusty” Arsenault, and the Portland businessmen after a probate judge ruled their dead mother’s will had been forged by Arsenault. Greg Johnson, a friend of Donald Arsenault’s, and his business partner Michael Smarc are accused of notarizing the will, even though they knew it had been forged.

Lynn Day Arsenault, 55, was shot and killed by Todd Gilday in 2013.

“In this case we have three adults who conspired with one another to steal an inheritance away from the children of a murdered woman,” Camden attorney Sarah Gilbert, who is representing Nick Day and Lynn Arsenault’s estate, said. “These defendants not only did that but repeatedly lied about it in court with little or no thought as to how it would affect Lynn Day’s family.”

Attorneys for Johnson and Smarc, who together own and operate Johnson Real Estate and Apartment Locator LLC of Portland, and for Arsenault deny any such conspiracy and are calling for the judge to release their assets.

Three years ago, Gilday, a former tax examiner whom Lynn Day Arsenault didn’t know, went to her Belfast home to confront Mathew Day, whom he also shot. Mathew Day suffered life-threatening injuries but survived.

Gilday was sentenced to 50 years in prison.

Following Lynn Arsenault’s death, Donald Arsenault, her fourth husband, presented a document that he claimed was his late wife’s last will and testament. The will left all her assets to her husband and nothing to her sons. That raised flags for the Day family and friends of Lynn Arsenault, who insisted she never would have left her sons with nothing.

Her sons challenged the validity of the will. Following a two-day trial that included testimony from a handwriting expert, Waldo County Probate Judge Susan Longley ruled in June that the document was forged.

The Day brothers then filed a civil lawsuit in Waldo County Superior Court alleging numerous counts of fraud, negligence, and infliction of emotional distress, among others. A third son of Lynn Day Arsenault, Christopher Day, died in 2015 before the probate judge’s ruling.

The Days argue in their claim that Donald Arsenault “intentionally and maliciously forged his dead wife’s signature” and took the document to the Apartment Locator office in Portland to have notarized by Smarc, with Johnson servings as a witness to the signing.

On July 26, 2016, in the wake of the probate court ruling, Nick Day recorded a conversation he had with Arsenault in which Arsenault admitted to forging his wife’s signature, according to a transcript of the conversation filed in court. Arsenault also told Day that Johnson and Smarc lied about watching her sign it because Johnson owed Donald Arsenault a favor, and Smarc owed Johnson a favor, according to the transcript.

On Aug. 31, Waldo County Superior Court judge agreed to an ex parte order for attachment against Arsenault, Johnson, Smark and Johnson Realty and Apartment Locator. That essentially froze bank accounts tied to them or their businesses for a value of up to $1 million, until a formal hearing on the suit is held.

KeyBank “restricted” 18 business and personal accounts under Smarc and Johnson’s control, totalling nearly $325,000, on Sept. 2. Gorham Savings Bank issued another hold on $20,000 in one of Johnson’s accounts around the same time, according to court records.

Timothy Zerillo of Portland, Smarc’s attorney, on Tuesday declined to comment. In court documents, Zerillo argues that neither his client nor Johnson received any benefit from notarizing or witnessing the false document and that both men had “absolute witness immunity” during probate proceedings, so it doesn’t matter if their testimony was false.

Ronald Bourget, an Augusta attorney representing Johnson, filed a similar response on Oct. 1. In it, he argues that the alleged damages “do not come close to $1 million” because the value of Lynn Arsenault’s estate is closer to $150,000.

A message left for Bourget was not immediately returned Wednesday.

Arsenault’s attorney, Sean Ociepka of Belfast, also declined to comment on the case

Follow Nick McCrea on Twitter at @nmccrea213.

Correction: An earlier version of this story incorrectly stated Michael Smarc’s first name.

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