Opinion
No. CV 02-0469544 S
September 3, 2003
MEMORANDUM OF DECISION
This is an appeal from the order and decree of the Madison Probate Court refusing to admit into probate as the last will and testament of the decedent, Dorothy Kirk (decedent), a document (will) dated August 11, 2001. The plaintiff is the son of the decedent, is named as Executor and is the sole beneficiary of the purported will. The defendant is the only other child of the decedent and is disinherited by the will. The court heard this matter as a de novo appeal on May 21, 2003.
The plaintiff claims in his reasons for appeal that the will was executed by the decedent on August 11, 2001 in accordance with Connecticut General Statutes § 45a-251, which requires that it be subscribed by the testatrix in the presence of two witnesses, that the testatrix had full testamentary capacity, and that she was not subject to undue influence. All of these claims are denied by the defendant.
The burden of proof with respect to due execution and testamentary capacity is on the plaintiff, who is the proponent of the will. Wheat v. Wheat, 156 Conn. 575, 578; Berkeley v. Berkeley, 152 Conn. 398, 401; D'Agostino v. Amarante, 172 Conn. 529, 530. The burden of proof on a claim of undue influence is on the party contesting the admission of the will, in this case the defendant. Stanton v. Grigley, 177 Conn. 558, 565.
The following facts are found. The decedent died on March 23, 2002 leaving two surviving children, the plaintiff Ronald Kirk and the defendant Harriet Woodhouse. The plaintiff had resided with the decedent since 1986 and he was her primary caretaker. At the time the will was executed the decedent was ninety-nine years old and in frail health. She had never executed any document purporting to be a will until June 2001, and was aware that if she died without a will her estate would be equally divided between the plaintiff and the defendant. The defendant and her daughter, Pamela Benn, lived within a mile of the decedent's home and also participated in the care of the decedent. The decedent was very dependent on the plaintiff and was concerned that he would leave her and move to New Jersey, which he had threatened to do. In June 2001 the plaintiff drafted a will (first will) in his computer which was then executed by the decedent. The first will disinherited the defendant and left the entire estate to the plaintiff. The first will also provided that a so-called Children's Fund of approximately $24,000 should be disbursed in accordance with the record maintained by the plaintiff. The Madison Probate Court refused to admit the first will to probate. No appeal has been taken with respect to the first will. The plaintiff had gone bankrupt in 1993 and thereafter had income of less than $1,000 per month from Social Security. The Children's Fund was a savings account which the decedent had started about thirty years earlier for the benefit of her children, grandchildren, great-grandchildren and great-great-grandchildren and consisted of money regularly contributed to the fund by the decedent on various occasions including holidays and the beneficiaries' birthdays. The beneficiaries also contributed to the fund. The decedent maintained a record reflecting the value of the interest of each beneficiary, however the account was in the decedent's name. The decedent always intended that the monies would eventually be paid to the beneficiaries.
In July 2001 the plaintiff and the decedent argued over the handling of the Children's Fund and the plaintiff pushed the decedent, told the decedent that he was moving back to New Jersey, he would not return, and he left. The decedent then called Mrs. Benn, who took her back to her house. The decedent was very upset about the plaintiff leaving and was concerned about her funds. She wanted the beneficiaries of the fund to get their money upon her death. Mrs. Benn discussed the matter with officials at a bank and with counsel. A revocable trust was drawn up naming Mrs. Benn as trustee, which gave the decedent control of the funds unless she was incapacitated, and upon her death the funds were to be distributed to the beneficiaries in accordance with schedules attached. The plaintiff subsequently returned to Connecticut in late July 2001 and resumed living with the decedent. He saw the trust instrument and believed that it gave Mrs. Benn control of the Children's Fund and that she could do as she wished with the fund. The decedent revoked the trust. The plaintiff typed out a new will on his computer which was identical to the first will except that it deleted the reference to the Children's Fund. This will is the subject of this appeal.
The will was executed at the New Haven Savings Bank in Madison on August 11, 2001. Three employees of the bank acted as witnesses. The witnesses did not sign an affidavit concerning the testamentary capacity of the testatrix. The assistant manager of the bank served as notary. The plaintiff and the decedent sat next to each other and conversed. The decedent did not read the will or initial the pages when she signed the will. The decedent said that it was her will when the notary took her oath. There was no evidence that the witnesses had ever had a conversation with the decedent or that the witnesses had any knowledge with respect to her mental state.
The will stated that the defendant was to receive no distribution under the will because the decedent had given her a home in Madison, and in 2001 had given her $10,000. The decedent, in the 1960s, had given the defendant an unheated three-room cottage in Madison worth $15,000. In 2001 the decedent gave the defendant $10,000 and told her that it was to equalize the gifts that she had given previously to the plaintiff and to the defendant. The decedent never told the defendant that she would receive nothing by way of an inheritance. In 1998 the defendant had cancer and thereafter open heart surgery. In October 2000 she had a stroke and since then has been confined to a wheelchair. She is now seventy-five years old. The decedent was very concerned about the defendant's health. During 2001 the decedent accused the defendant of wanting to place her in a nursing home, of stealing her life's savings, and of forging her name on the deed executed in the 1960s. In October 2001 the decedent and the plaintiff both claimed that the defendant and/or Mrs. Benn had stolen the decedent's life savings. None of these allegations were true.
Since the trust concerning the Children's Fund had been revoked, the will executed on August 11, 2001 would leave all of the assets which were in the decedent's name, including the Children's Fund, to the plaintiff. It was out of character for the decedent, after carefully recording all of the contributions to the fund in the names of the various beneficiaries for almost thirty years, to execute a will leaving the entire fund to the plaintiff.
The decedent was dependent on the plaintiff and was very concerned that he would move permanently to New Jersey, which he had threatened to do. The plaintiff was in a position to control what his mother did and influence her actions. Prior to the execution of the will in August 2001 the decedent had been acting erratically. In April of that year she had eye surgery. Subsequent to the surgery she accused both the plaintiff and Mrs. Benn of attempting to make her go blind by putting the wrong number of drops in her eyes, none of which was true.
In August 2001, shortly after the execution of the will, Judy Sugarman, who is an ombudsman with Protective Services for the Elderly, Department of Social Services, State of Connecticut, received a telephone call from John Woodhouse, a grandson of the decedent. Mr. Woodhouse was concerned that the decedent was being exploited by the plaintiff and he was also concerned about the plaintiff's volatile behavior. Ms. Sugarman went to visit the decedent on August 21, 2001 and met the plaintiff and decedent outside the house. Ms. Sugarman identified herself as being from the Department of Social Services. The plaintiff went inside the house and within a few minutes came out screaming and yelling that Ms. Sugarman was impersonating a police officer. He refused to let Ms. Sugarman talk to the decedent. The decedent had an appointment the next day at the Adler Geriatric Assessment Clinic at Yale. The appointment had been arranged by Mrs. Benn, and the plaintiff and the decedent were aware of the appointment. The decedent did not keep the appointment. Mrs. Sugarman was concerned for the decedent's welfare because of the plaintiff's angry, volatile and hostile behavior, that he would not let her talk to the decedent, and that she had not kept her appointment. After speaking to her supervisors, they decided to file an application for a temporary conservator, which was filed on August 27, 2001, and Attorney Carol Behrman was appointed as temporary conservator on August 28, 2001. It was part of Ms. Sugarman's professional function to make an evaluation of the elderly person and her close family members. Based on Ms. Sugarman's testimony the court finds that the decedent and the plaintiff had a co-dependent relationship with each other, that the decedent was extremely frail physically and emotionally, that she was very vulnerable to the plaintiff and his wishes, and that she would do and say anything so that she could remain in her home with the plaintiff continuing to care for her.
Ms. Sugarman and Attorney Behrman met with the decedent at her home on August 30, 2001. She was in bed and while she was very articulate, she did not understand what a conservatorship meant, she did not understand the status of her finances, she was not adequately managing her financial affairs, and she was unable to make appropriate decisions for herself. Ms. Sugarman was concerned that the plaintiff was misappropriating or misusing the decedent's funds. Because of the plaintiff's abusive manner Ms. Sugarman and Attorney Behrman found it necessary to have police officers with them when they visited with the decedent in her home.
At a hearing in the probate court on October 11, 2001 the decedent told Attorney Behrman that her will left one-half of her estate to the plaintiff and one-half to the decedent.
The decedent was examined at the Adler Geriatric Assessment Center at Yale-New Haven Hospital on September 17, 2001. She believed that her entire family, other than the plaintiff, wanted to "incarcerate" her in a nursing home. She was diagnosed as having significant frontal lobe dementia which included perseveration, disinhibition, intrusions, imitation behavior, and utilization behavior. She had been experiencing sudden fainting spells. It was recommended that she not be left alone for significant periods of time.
The decedent had further neuropsychological testing at Adler Center on October 10, 2001. As a result of the testing it was concluded that she was "having difficulties in multiple areas of neurocognitive functioning," and that her neurocognitive deficits "suggest a contribution of Alzheimer's disease pathology."
The plaintiff has proven that the will was duly executed. However, the plaintiff also has the burden of proving testamentary capacity on the part of the decedent. He has failed to meet his burden.
The trial court correctly placed the burden of proof in this case on the plaintiff. And the court properly applied the well established test for testamentary capacity, i.e., that the testator have mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution. City National Bank Trust Co.'s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958). The ultimate determination of whether a testator has measured up to this test is a question of fact for the trier.
Stanton v. Grigley, 177 Conn. 564 (1979).
The evidence offered by the plaintiff as to the circumstances surrounding the execution of the will on August 11, 2001 did not establish the decedent's testamentary capacity. Neither of the witnesses to the will offered any evidence of capacity other than she said it was her will and signed it. The rest of the facts found, as set forth earlier in this opinion are indicative of testamentary incapacity. However, the burden with respect to this issue is not for the defendant to prove testamentary incapacity, but rather on the plaintiff to prove testamentary capacity, which he has failed to do.
Another issue in this case is the claim by the defendant that the will was executed by the decedent when she was under the undue influence of the plaintiff. The defendant has the burden of proof on this issue. There was no direct evidence of undue influence offered in this case. Our Supreme Court has enunciated the legal principles that apply in the absence of direct evidence of undue influence.
Subsequently we reiterated the above principle and amplified it as applied to a case where there was no direct evidence of undue influence, in these words: "It is conceded that no direct evidence of undue influence was induced, and none was necessary, provided the foundation was laid for a reasonable inference that the will was not such as the testator would have made, if left entirely to his own discretion, and that his free agency and independence had been overcome, so that he was constrained to do what he was unable to refuse and too weak to resist. St. Leger's Appeal, 34 Conn. 434, 442. On the other hand, the rule which dispenses with the necessity of direct proof of undue influence, does not relieve the contestant from the burden of laying a "safe foundation of material facts proven, and inferences which fairly and convincingly lead to that conclusion." Hills v. Hart, 88 Conn. 394, 397, 91 A. 257.
Downey v. Guilfoile, 93 Conn. 630, 631, 107 A. 562.
Further explanation of just what is meant by "pressure" constituting undue influence, and of the significance of circumstantial evidence in such cases, particularly apropos in the instant case, is well set forth as follows: "Pressure of whatever character, whether acting on the fears or hopes — if so exerted as to overpower volition without convincing the judgment — is a species of constraint under which no will can be made. Importunity or threats, such as the testatrix has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort — these, if carried to a degree in which the free play of the testatrix's judgment, discretion, or wish, is overborne, will constitute undue influence, though no force was either used or threatened. The existence and exercise of such undue influence is not often susceptible of direct proof. It is shown by all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind, and of body as affecting her mind, her condition of health, her dependence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence. Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive proof of the existence and exercise of such an influence." Hobbes' Appeal, 73 Conn. 462, 467, 470, 47 A. 678; Dale's Appeal, 57 Conn. 127, 134, 147, 17 A. 757.
Lee v. Horrigan, 140 Conn. 237-39 (1953).
The court finds, based on the totality of the evidence and the facts previously set forth, that the decedent was a highly vulnerable ninety-nine year old woman who was in frail physical and mental health, that she believed that she was totally dependent on the plaintiff for her care, that the plaintiff was in a position to exercise undue influence over her, that he did exert undue influence over her causing her to execute a will disinheriting her only other child and leaving her entire estate to the plaintiff, and that the will executed by the decedent on August 11, 2001 is contrary to what she would have done if it were not for the undue influence imposed upon her by the plaintiff.
The appeal is dismissed.
By the Court,
William L. Hadden, Jr. Judge Trial Referee