Opinion
No. 4105381
September 20, 2007
MEMORANDUM OF DECISION
This vigorously contested Appeal from Probate was initiated by a Motion For Appeal From Probate dated November 9, 2006, relating to the admission to probate of the Last Will and Testament of Byron E. Corcoran, deceased, in the Probate Court for the District of Griswold. The case pits a sister against her brother. A Decree Allowing Appeal From Probate was issued by that court, Kennedy, J., on November 9, 2006. A Motion to Dismiss was filed by the Estate, but later withdrawn at trial.
The appellant filed the Reasons of Appeal on June 11, 2007, pursuant to leave granted by the court, Hurley, J.T.R. The reason pursued at trial was limited to that of undue influence. At trial on the record the Estate entered a general denial of the Reasons of Appeal, which closed the pleadings and the parties requested that they be permitted to proceed with trial on September 11, 2007, before the court.
Each party presented witnesses, exhibits and arguments in support of their respective positions during the trial that followed. The parties declined the opportunity to file briefs after the trial supplementing the claims already made.
From that evidence and the reasonable inferences from the evidence, including the court's evaluation of the credibility of the witnesses, the court finds the following facts relevant to the decision.
The decedent, Byron Corcoran, had two children who survived him: a son, Jeffrey Corcoran, and a daughter, Donna Merrick, who is the appellant in this action. Byron Corcoran's wife had predeceased him. In addition, among other relatives, the decedent had a grandson, David Corcoran, who was the son of Jeffrey Corcoran and his then-wife Sandra Corcoran (now Foster). David was 25 years old at the time of the trial.
During part of his youth David was sent to live with his grandfather, the decedent. His parents divorced in 1997 (after having been separated for some time). He lived with his mother in Lowville, New York for some period of time when he attended school.
David Corcoran has not had a good relationship with his father, Jeffrey Corcoran, for four or five years. During the time he lived with his grandparents David considered them like his parents. His grandfather, the decedent, Byron Corcoran, bought David whatever he needed including two trucks, clothes, television and stereo sets. He created two separate bank accounts in about 2001 with David's name on them in addition to his and put David's name on the title to his Buick automobile. As time went on the decedent became disappointed in David.
The decedent's daughter, Donna Merrick, the appellant, is married to Kevin Merrick. For most of the relevant time, they lived in close proximity to the decedent's home and saw quite a lot of the decedent until sometime in 2002 when a dispute occurred between them. It related to the use of dirt bikes. The decedent got his shotgun out and Kevin Merrick called the police. After that incident Donna Merrick never spoke with or visited with her father, the decedent until shortly before his death at the hospital on November 5, 2005. After that dispute the decedent said he would have nothing more to do with Donna Merrick, his daughter. Donna Merrick moved with her husband to Georgia about October 2005.
Jeffrey Corcoran was 46 years old at the time of the trial. He was retired with a disability since 1999. He is a mean person. He was physically abusive to his first wife Sandra. He pushed away his son David and had a poor relationship with him. He had told his daughter Brandi Corcoran he wanted nothing more to do with her. He threatened his father that he would hurt him or David or Donna Merrick unless everything was left to him. This was mentioned to others in his daughter, Brandi's presence. On one occasion the decedent discussed this with two friends after he had made his will indicating a degree of conflict and guilt over the choice he had made and that he made his will because he was afraid of Jeffrey. Other friends who saw him often during the time after he made his will never heard him discuss the contents or even the existence of his will.
Some days before October 15, 2003, the decedent himself called the office of Attorney Frederick C. Berberick, Jr. to make an appointment to make a will. Attorney Berberick met with Byron Corcoran in his office. No-one else was present. Attorney Berberick made notes relating to his instructions with details like the decedent's social security number, date of birth, address and phone number. They discussed the decedent's desire not to leave anything to his daughter, Donna Merrick, and that he wanted to leave everything to his son, Jeffrey Corcoran. He also wanted a provision that if Jeffrey didn't survive him everything would go to his grandson, David Corcoran. A draft of a proposed will outlining that arrangement was sent to the decedent who then made an appointment to come to Attorney Berberick's office to sign the original of the Will. Jeffrey Corcoran did not accompany or transport his father to the attorney's office on either occasion.
On October 22, 2003, the will was signed in the attorney's office in front of three witnesses, two of whom signed the usual self-proving affidavit. No issues were raised during the trial as to that procedure. The only persons in the room at the time of the will signing were the three witnesses. They all testified at the trial as to the procedure followed by Attorney Berberick which involved reviewing the contents of the will with Byron Corcoran.
The decedent had the requisite testamentary capacity at the time of the signing of the will, i.e., he had mind and memory sound enough to know and understand the business upon which he was engaged.
The decedent took the original of the will with him, signed a receipt for the same and put it in his "lock box" at his home. The original will was, therefore, under his control until his death.
Article III and IV of that will read as follows:
Article III: I give, devise and bequeath all the rest, residence and remainder of my property, of whatsoever nature and wheresoever situated, to my son, JEFFREY B. CORCORAN, of Danielson, Connecticut, to be his absolutely and forever. In the event my said son, JEFFREY B. CORCORAN, does not survive me, then I give, devise and bequeath all the rest, residence and remainder of my property, of whatsoever nature and wheresoever situated, to my grandson, DAVID A. CORCORAN, of Griswold (Jewett City), Connecticut.
Article IV: I have intentionally omitted my daughter, DONNA MERRICK, of Canterbury, Connecticut, from any participation of my estate. I hereby declare that such omission was not due to any lack of love or affection, but because of reasons best known to myself.
The decedent was not a meek man. He had many friends. He was also a private person, not one to tell others about his finances or personal matters. He had retired from employment with the State of Connecticut where he had been a supervisor. He had sought political office once running for selectman of his town. Nevertheless, he was aware that his son, Jeffrey, was capable of physical abuse and had a bad temper.
Many people stopped to visit with him during all of the time relevant, both before the 2002 incident with Kevin Merrick and after, up until just before his death. Except when he was incapacitated by a stroke for a couple of months he lived alone for the last few years attending to his own daily needs. There were times during that period that David Corcoran would visit him for short periods. He often drove himself to the store, the coffee shop, and McDonald's. He had regular friends he would meet at McDonald's. He had chairs out in front of his house where he sat often talking with visitors. He befriended neighbors who would stop to check on his well-being. Witnesses testified and it is found that he was alert and of sound mind up to the time he fell and was taken to the hospital just before he died in 2005. He was 78 years old when he died.
During the years before his death Kelly Corcoran, Jeffrey Corcoran's present wife, visited the decedent once or twice a week to see that he had whatever he needed. At one point she borrowed money from him but paid him back. When he fell in September 2005, he called his son, Jeffrey Corcoran, who had him taken to the hospital. At the hospital when he gave them his "history" he indicated that he did not speak to his daughter. He had his son Jeffrey indicated as the person to call in an emergency. The decedent has a mixed relationship with his son, Jeffrey. On the one hand he was afraid of him in that Jeffrey had a bad temper and was known to have been abusive with others. On the other hand he had been assisted by Jeffrey and his wife during times of need. In contrast to his daughter, his son was living nearby during his final months.
As a daughter, the plaintiff, Donna Merrick, is an heir-at-law who would, therefore, be aggrieved by the admission of a last will and testament which omits her.
THE LAW
". . . When entering an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Citations omitted; internal quotation marks omitted.) State v. Gordon, 45 Conn.App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998).
"The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing . . . In order for an appellate to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the court's decision. General Statutes § 45a-186 . . . Aggrievement as a concept of standing is a practical and functional one designated to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court . . . The question of [aggrievement] does not involve an inquiry into the merits of the case . . .
"Aggrievement falls within two categories, classical and statutory . . . Classical aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate . . . Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case . . . It merely requires a claim of injury to an interest that is protected by statute." (Citations omitted; emphasis added; internal quotation omitted.) Kucej v. Kucej, 34 Conn.App. 579, 581-82, 642 A.2d 81 (1994); Marchentini v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 490 (2004).
"Many years ago this court held the following to be a correct statement of what constituted undue influence sufficient to invalidate a will: "[T]he degree of influence necessary to be exerted over the mind of the testator to render it improper, must from some cause or by some means be such as to induce him to act contrary to his wishes, and to make a different will and disposition of his estate from what he would have done if left entirely to his own discretion and judgment. That his free agency and independence must have been overcome, and that he must, by some dominion or control exercised over his mind, have been constrained to do what was against his will, and what he was unable to refuse and too weak to resist. But that moderate and reasonable solicitation, entreaty or persuasion, though yielded to, if done intelligently and from a conviction of duty, would not vitiate a will in other respects valid." St. Leger's Appeal, 34 Conn. 434, 442, 449. Subsequently, we reiterate 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 adduced, 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. 639, 631, 107 A. 562. More recent decisions which have reaffirmed the principle determinative of the existence of undue influence are: Preston v. Preston, 102 Conn. 96, 109, 128 A. 292 and Bucchi v. Gleason, 137 Conn. 25, 30, 74 A.2d 212.
"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 violation without convincing the judgment — is a species of constraint under which no will can be made. Inportunity 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. "The ultimate question is, upon the evidence could the jury reasonably have drawn the inference of undue influence?" Hills v. Hart, 88 Conn. 394, 399, 91 A. 257." Lee v. Horrigan, 140 Conn. 232 (1953).
The appellant has the burden of proof by a preponderance of the evidence on the issue of undue influence. The appellee has the burden of persuasion to establish the validity of the will. See Dinan v. Marchand, 91 Conn.App. 492 (2005).
Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control. Reynolds v. Molitor, 184 Conn. 526, 528, 440 A.2d 192 (1981). "It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence." 25 Am.Jur. 397-98, Duress and Undue Influence § 36. Relevant factors include "age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." Id.
Direct evidence of undue influence is often unavailable and is not indispensable. Salvatore v. Hayden, 144 Conn. 437, 440, 133 A.2d 622. On the other hand, the mere opportunity of exerting undue influence, is not alone sufficient. Richmond's Appeal, 59 Conn. 226, 246, 22 A. 82; Hills v. Hart, 88 Conn. 394, 402, 91 A. 257. There must be proof not only of undue influence but that its operative effect was to cause the testator to make a will which did not express his actual testamentary desires. Hills v. Hart, supra, 401.
The burden of proof where undue influence is alleged, as it is in this case, is upon the contesting party with respect to that issue. Berkowitz v. Berkowitz, 147 Conn. 474, 476 (1960).
CONCLUSION
This is not a case about the character of the contesting parties. Nor is it the role of the court to determine which of the parties is most deserving.
The waters of this case are rife with currents going in different directions with varying strengths and forces. For example, the will being contested was executed under the best of circumstances. An experienced lawyer in charge. Only witnesses in the room. The decedent came without interested parties after making the appointment himself. On the other hand, his son Jeffrey did threaten him with harm and harm to his daughter and grandson if he did not leave Jeffrey his estate. But the only other natural heir, his daughter, Donna, the appellant here, was estranged from the decedent for several years. She herself called her actions the result of being "stupid and stubborn." Her husband, Kevin Merrik, had called the police on the decedent. Jeffrey told others of his threats to his father. But the decedent was not a meek person and not one easily swayed. Kelly Corcoran, Jeffrey's wife, often visited the decedent to help out in the last years of his life. At the hospital near his death the decedent listed his son as his next of kin and told them he didn't speak with his daughter. He was self-sufficient and had close friends he saw often during the period in question. The will in question was kept in his home in his own lock box. He could have destroyed it. His mind was keen to the end. He could have changed it. He was aware of his son's characteristics. He was afraid of Jeffrey. He was a secretive man, not one to reveal his financial matters to friends. He told some young men (who had been friends growing up in the neighborhood) who did not see him often about his will and his concerns. But he didn't ask for help. A woman who went to McDonald's with him often in his last two years knew nothing of his concerns.
As indicated above the appellant has the burden of proof as to the claim of undue influence. Under these divergent circumstances, applying the law as outlined above, it can not be found that the burden has been sustained.
The appeal is dismissed and the decision of the Probate Court is affirmed and adopted, without costs to any party.