Opinion
No. CV03 0284642
January 6, 2006
MEMORANDUM OF DECISION
This matter is an Appeal from Probate dated June 13, 2003, filed by the plaintiffs Jack P. Moneta and Karen Orzechowski against the defendant, Peter Moneta, their brother, regarding the Estate of Vera S. Moneta. In deciding this matter a summary of the events preceding the filing of the appeal from probate is useful.
Vera S. Moneta was the mother of the plaintiffs and the defendant. She became deceased on December 20, 2001. She was predeceased by her husband in 1995, who bequeathed his entire estate to Vera, with the exception of the family home that he owned solely in his name. Regarding the family home, his will left the same to his children (the Plaintiffs and Defendant in this matter) equally, subject to the decedent's life use.
Vera S. Moneta died testate, having executed her Last Will and Testament on June 29, 1989. Article Six of her Will called for the rest, residue and remainder of her estate to be equally shared between her three children; Peter Moneta, Jack Moneta and Karen Orzechowski (formerly Moneta). Article Seventh of the will nominated the plaintiff Jack Moneta and the defendant Peter Moneta as co-executors.
Following the death of Vera S. Moneta, the Cheshire Probate Court admitted her last Will and Testament to probate by way of its Decree Granting Administration or Probate of Will dated April 24, 2002. The probate court issued letters testamentary to Jack Moneta and Peter Moneta as co-executors and ordered that a true and complete inventory of all property of the estate of the decedent be filed. Thereafter, the Inventory dated June 24, 2002, was filed by co-executor Peter Moneta.
The Inventory did not include certain assets held jointly with rights of survivorship between the decedent and the defendant Peter Moneta, which had been established during the decedent's lifetime. Therefore, at the time of the decedent's death, she held certain financial assets in her name solely, and she held other assets jointly with rights of survivorship with her son Peter Moneta, the defendant. These jointly held assets were not included on the estate Inventory, the Administration Account or Final Accounting filed by the co-executor Peter Moneta. They were, however, included on the Succession Tax Return on Schedule Four, where jointly held assets were listed.
The Inventory dated June 24, 2002 and filed by the defendant consisted of assets totaling $20,482.
Jointly owned personal property assets of the decedent and the defendant Peter Moneta listed on Schedule 4 of the S-2 Succession Tax Return signed by the defendant on March 4, 2002 total approximately $116,000.
Subsequently, a hearing on the final accounting dated July 2, 2002, filed by the defendant Peter Moneta, was held at the Cheshire Probate Court. The plaintiff Jack Moneta objected through legal counsel to the acceptance of the defendant's final accounting of the estate assets. Jack Moneta did not attend any probate court hearings and nor did he testify. The plaintiff Karen Orzechowski did not attend the hearing, nor has she contested or objected to any of the defendant's probate court filings either in person or through counsel. Nonetheless, the Probate Court took evidence at the hearing on the final accounting submitted by the defendant.
On May 12, 2003, the Cheshire Probate Court issued its "Order and Decree" allowing and approving Peter Moneta's Final Accounting of estate assets and ordered that the rest, residue and remainder of the estate be paid over to the distributees in accordance with the provisions of the decedent's last Will and Testament. As part of its "Order and Decree," the probate court incorporated a written memorandum of decision. The Cheshire Probate Court (Voelker, J.) ruled that, pursuant to General Statutes § 36a-290 (formerly General Statutes § 36-3) the jointly held accounts became the property of the Defendant, Peter Moneta, and that, "the Court does not find the presence of fraud or undue influence or clear and satisfactory evidence that the joint assets should be considered assets of the decedent alone, nor does the Court find clear and satisfactory evidence that a constructive trust should be imposed." The probate court therefore found that the plaintiff Jack Moneta had not proven his claim. As noted, the plaintiff Karen Orzechowski had filed no objection to the final accounting submitted to the probate court by the defendant.
After payment of claims and estate expenses, the sum of $2,444 was available for distribution to the two plaintiffs and the defendant.
Sec. 36a-290(a) and (b) read as follows: (Formerly Sec. 36-3).
(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds . . .
Subsequently, siblings Jack Moneta and Karen Orzechowski filed a motion at the probate court for an appeal to the Superior Court on June 10, 2003, and on said date, the probate court issued a decree allowing the appeal. Thereafter, the plaintiffs brought this Appeal from Probate on June 13, 2003, claiming essentially, that their brother, Peter Moneta exerted undue influence over the decedent, such as to cause certain accounts to become jointly held. It is alleged that all accounts that were jointly held between Vera Moneta and Peter Moneta at the time of Vera's death should have been included in her probated estate.
Sec. 45a-186(a), Appeals from probate reads as follows:
(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.
In their revised reasons of appeal dated August 13, 2003, the Plaintiffs state three reasons for the basis of the appeal:
1. The Appellee (defendant) failed, neglected and refused to list and include, on the Inventory, on the Administration Account and on the Final Accounting for the Estate of Vera S. Moneta, certain jointly held assets listed on Schedule Four of the Succession Tax Return dated March 4, 2002 that said Appellee (defendant) filed with the Probate Court for the District of Cheshire, when, upon information and belief, it was the intent of the Decedent that said assets were to be held for the benefit of all of her beneficiaries, to be distributed to all of her beneficiaries equally upon her death.
2. A constructive trust should be imposed on certain allegedly jointly held assets listed on Schedule Four of the Succession Tax Return assets, and other assets claimed by the Appellee (defendant) as having been jointly held by him and the Decedent, for the reason that, upon information and belief, if such assets were jointly held by the Appellee (defendant) and the Decedent, they were so held for the convenience of the Decedent, with the intent that said assets, upon her death, would be distributed equally to her heirs.
3. The Appellee (defendant) exerted undue influence over the Decedent during her lifetime, thereby causing her to transfer various assets into jointly held accounts with the Appellee (defendant).
The matter was thereafter assigned for a trial by the court, and evidence was presented on April 26 and April 27, 2005. Following the completion of evidence the parties filed their respective statements of the law and proposed findings of fact. The final filings by the parties were submitted to the court on August 19, 2005.
I Legal Principles Re Appeal from Probate
The legal principles applicable to appeals from probate are well-established. In any appeal from probate, the Superior Court exercises a limited statutory jurisdiction and has no greater powers than the Probate Court. Berkeley v. Berkeley, 152 Conn. 398, 400, 207 A.2d 579 (1965); see also General Statutes § 45a-186. The trial of an appeal from probate in the Superior Court is not an ordinary civil action, but is a trial de novo. Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988); Prince v. Sheffield, 158 Conn. 286, 294, 259 A.2d 621 (1969). "When entertaining 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 probate appeals, a Superior Court may admit any evidence that was received by the Probate Court or could have been received by it . . . [but] may not receive evidence that the Probate Court could not have received because it came into existence subsequent to the Probate Court hearing." (Citations omitted; internal quotation marks omitted.) In Re Michaela Lee, 253 Conn. 570, 607 n. 10, 756 A.2d 214 (2000). "Although the Superior Court may not consider events transpiring after the Probate Court hearing . . . it may receive evidence that could have been offered in the Probate Court, whether or not it was actually offered." (Citation omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991).
Thus, "[t]he function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo . . . Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the Superior Court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." (Citations omitted; internal quotation marks omitted.) Kerin v. Stangle, supra, 209 Conn. 264; State v. Gordon, 45 Conn.App. 490, 494-95, 696 A.2d 1034, cert. granted, 243 Conn. 911, 701 A.2d 336 (1997); Trust Estate of Molinari v. Probate Appeal, Superior Court, judicial district of Stamford/Norwalk at Stamford, No. CV00 0181436 S (Oct. 24, 2001, Callahan, JTR).
General Statutes § 45a-91 provides that:
In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate.
"The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met. General Statutes §§ 45-288, 45-289 [now General Statutes §§ 45a-186, 45a-187]; Bergin v. Bergin, 3 Conn.App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 404 A.2d 903 (1985)." State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988). "To prosecute an appeal from a Probate Court decree, the plaintiff must be aggrieved by that decree . . . The plaintiff's interest must appear in the motion to appeal or on the face of the proceedings and records . . . If it does not appear from these documents that the plaintiff is aggrieved, the Superior Court has no subject matter jurisdiction over the appeal, and it is, therefore, subject to dismissal." Zampsky's Appeal from Probate, 6 Conn.App. 521, 524, 506 A.2d 1050 (1986).
"A [plaintiff] who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the [plaintiff] in the subject matter of the decree or order appealed from in the estate . . . and (2) the adverse effect of the [Probate Court's] decree or order on that interest." (Citation omitted.) Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). "[T]he existence of aggrievement depends upon whether there is a possibility . . . that some legally protected interest which [a plaintiff] has in the estate has been adversely affected." (Internal quotation marks omitted.) Bradley's Appeal from Probate, 19 Conn.App. 456, 468, 563 A.2d 1358 (1989). Additionally, "[the plaintiff's] appeal should clearly state the basis for his aggrievement . . ." Cammorata v. Appeal from Probate, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0388486 (March 6, 2002, Gallagher, J.) ( 31 Conn. L. Rptr. 486, 487).
"The jurisdictional requirement of aggrievement serves both practical and functional purposes to assure that only those parties with genuine and legitimate interests are afforded an opportunity to appeal. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980)." Bucholz's Appeal from Probate, 9 Conn.App. 413, 415, 519 A.2d 615 (1987).
"Aggrievement falls within two broad categories, classical and statutory. The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation. Classical aggrievement usually requires that the party claiming aggrievement has a direct pecuniary interest in the outcome of the litigation . . . Because of the types of issues often presented in probate appeals, however, the concept of aggrievement in such cases has evolved into a broader standard than that requiring a showing of a direct pecuniary interest." (Citations omitted.) Id. "A two-prong analysis is used in probate appeals to determine whether a party is classically aggrieved by a denial, decree or order of a court of probate as provided by General Statutes § 45-288 [now General Statutes § 45a-186] . . . That analysis includes a consideration of (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest." Id.
The plaintiffs have alleged an interest in the subject matter of the decree based on an interest as testamentary heirs of the estate of the decedent and that they were adversely affected by the decree and order of the Cheshire Probate Court accepting the defendant's final accounting. The court agrees that both plaintiffs are aggrieved persons.
Additionally, plaintiff Jack P. Moneta is also an aggrieved person as a co-executor because "[t]he administrator or executor represents the interests of the other creditors and heirs or legatees and devisees. He or she is under a duty to preserve those interests . . ." R. Folsom, Connecticut Estates Practice: Probate Litigation (1992) § 7.2, p. 245.
II Facts
At the time of the decedent's death Peter Moneta, the defendant, was the only one of the three siblings that permanently resided in Connecticut. The plaintiff Jack Moneta resides in Texas and the plaintiff Karen Orzechowski has resided in Georgia since 1998. She had originally left Connecticut in 1975 to reside in Pennsylvania. She returned to Connecticut in 1977 and later relocated to Massachusetts in 1983. She remained in Massachusetts until her move to Georgia in 1998. During all times relevant to this appeal Peter Moneta lived in Wallingford, relatively close to the decedent who resided in Cheshire, Connecticut until a few months before her death, when she moved to the Masonic Hospital, close to Peter Moneta's place of employment. The decedent Vera Moneta was 86 years old when she died of congestive heart failure on December 20, 2001.
The death certificate listed the cause of death as (a) dehydration (weeks), (b) failure to thrive syndrome (months), and (c) ischemic cardiomyopathy (years).
The Plaintiff Jack Moneta, had moved out of state in 1967, to Vermont, and then in 1993 to Texas, where he resides today with his wife, Lynda. Jack Moneta testified that (with the exception of the four months just prior to her passing) he visited his mother no more than four to seven times per year in the last several years prior to her death. Between the years 1995 and 1997, he visited on the average of one or two times per year. He admitted he never came to Connecticut just to visit his mother, as his trips to Connecticut primarily were work and business related. While in Connecticut on business, he would visit his mother. He also kept in telephone contact with his mother, the decedent on a weekly basis. These visits from Texas and his telephone calls were the extent of his regular contact with the decedent between 1990 and her death in 2001 with the exception of the four or so months just prior to her death, when the end of her life was becoming apparently obvious to the family. From approximately June 2001 to December 2001, while the decedent was residing in the Masonic Home he visited her on approximately seven to ten occasions.
The plaintiff Karen Orzechowski visited the decedent three times per year while Orzechowski lived in Massachusetts and approximately twice per year since moving to Georgia. In 2001, she visited the decedent on four occasions. She also testified that she would call the decedent once per week throughout the years, but was unable to produce much evidence of this. She possessed no knowledge of the decedent's assets and was unaware of the decedent's last Will and Testament until after the decedent's death. She confirmed that the defendant was a great help to the decedent in the decedent's everyday living arrangements. Her testimony was unremarkable except for the fact that she directly stated that she was not alleging undue influence on the part of the defendant Peter Moneta. She agreed to join her brother Jack, as a plaintiff in this appeal, so that each sibling would get an equal share in "whatever was left" in the decedent's estate. She conceded however that the appeal was the idea of her husband and her brother, Jack Moneta. She admitted that she "had no idea what was left" in the estate, and at the time of trial still had no idea of the amounts of any estate assets. She also admitted that she has no understanding of what events occurred in the probate court and that while she received notice of the proceedings in the probate court, she ignored them.
Following the death of their father, the decedent's husband, the plaintiff Jack Moneta had a discussion with the Defendant, Peter Moneta about how their mother's funds were going to be managed. He further claims that it was his idea to set up joint accounts between the decedent and the defendant and that it made sense for the defendant to assist the decedent in her money management, due to the defendant's proximity to the decedent. There is no evidence that the decedent was suffering from any mental incapacities or infirmities from 1995 through 1999. The plaintiffs have not produced any expert medical testimony that the decedent at any time relevant to this matter, was incapable of making decisions regarding the management of her finances. However, as her late husband had managed the finances, it was agreed that the decedent may need some assistance, as the assets, not including real estate (the family home) totaled approximately $276,000 in 1995.
In 2000 to 2001, the decedent was diagnosed as suffering from dementia.
From approximately 1995 to 2001, Jack Moneta claimed he would discuss the decedent's assets consisting of stocks and bank accounts with the defendant on a frequent basis. However, the court finds that the plaintiff Jack Moneta possessed little accurate knowledge as to the status or ownership of the decedent's assets, despite his testimony at trial to the contrary. He did receive some sporadic summaries from the defendant as to certain accounts and investments, but he admitted he did not receive any detailed accountings, nor did he request them as he "trusted" the defendant.
He admits that all discussions with the defendant regarding the decedent's assets ended in 2000, prior to her death in 2001, and that the investments had stayed substantially the same with very few changes. Therefore, he didn't find it to be necessary for updates. Jack Moneta was unable to produce correspondence or phone bill records to substantiate any claims that he did request regular updates regarding the decedent's finances from the defendant.
While Jack Moneta may not have had any objection to the creation of joint accounts between the decedent and the defendant there is little evidence that the plaintiff Jack Moneta actually knew of the creation of these accounts. The court finds that it is more probable that, prior to his mother's death, Jack Moneta had little or no knowledge of the creation or transfer of any of these accounts into joint ownership with Peter Moneta, and even if he had known, he would not have objected. Proof for this proposition is evidenced by the testimony of Jack Moneta at trial who stated he was continually asking for information regarding the assets, indicating that he had little knowledge of how the decedent's assets were being managed and in what accounts they were being held. If he was actually part of the joint accounts establishment, as he claimed, one must question why Jack Moneta would need, or want, this information.
Additionally, given the tenor of his testimony it could be reasonably inferred that Jack Moneta was claiming that Peter Moneta placed accounts in joint ownership by virtue of a power of attorney from the decedent to the defendant Peter Moneta, dated August 29, 2001. The evidence showed however, that there was only one act undertaken by Peter Moneta with respect to this power of attorney, the signing of a check from Anthem Blue Cross/Blue Shield over to Maryann Moneta at the direction of Vera S. Moneta. By the time of the execution of the power of attorney, all of the disputed joint accounts had been jointly held between the decedent and the defendant for four to five years.
All parties agree that in 1997 and 1998 Vera Moneta gave her children $10,000.00 each at Christmas time. In 1999, this gift was extended to their spouses, as well. In 2000, the year that the alleged updates stopped, there were no such gifts. Jack Moneta claims that Peter Moneta had a gambling problem and that in 1998 Vera Moneta was concerned about this alleged problem. There were no records or documentary evidence presented to substantiate this claim asserted by Jack Moneta. Jack Moneta testified that, back in 1998 and 1999 that the decedent was concerned about the defendant's gambling and mentioned this to him. However, the evidence reveals that at the same time the decedent allegedly had this concern she was giving tens of thousands of dollars to Peter, as well as the other siblings, and the decedent continued to maintain the jointly held accounts with the defendant. Further that, even though Jack Moneta claimed that he was concerned about an alleged gambling problem of the Defendant, he had no objection to the defendant managing the decedent's money or maintaining joint accounts with the decedent. The court does not find the testimony of Jack Moneta to be credible in many areas. The court also notes that the decedent's assets were not diminished to any great extent from 1995 to her death in 2001.
In 1997 and 1998, the decedent gifted $10,000 to each of her three children for a total of $30,000 in each year. In 1999, the decedent gifted $10,000 to each child and $10,000 to each of their spouses for a total of $60,000.
Jack Moneta was questioned as to what joint accounts he is claiming a right to. He stated, "Whatever was left and whatever Peter took for his own personal needs that were not part of his understanding with me and my mom in terms of managing funds." However, the Plaintiffs offer no proposed accounting as to this claim and they offer no expert testimony through a forensic accountant. They offer a mere generality of a claim.
Jack Moneta was asked about the undue influence allegedly exerted by the Defendant, Peter Moneta, against Vera Moneta. Jack Moneta did not testify as to any undue influence with regards to the joint accounts and the change of a life insurance beneficiary form. He only offered his suspicions, opinions and speculation that it did not make sense for his mother, the decedent, to have done these things.
There is no evidence submitted that would in any way cast a light upon undue influence with regards to these life insurance polices. However, even if there was, they are not part of this appeal as in their Revised Reasons of Appeal the Plaintiffs only claim a right to "jointly held assets." There was no testimony that the life insurance policies were jointly held, nor documentary evidence of the same. Additionally, neither of these policies is listed on Schedule Four of the Succession Tax Return as the Plaintiffs reference in their Revised Reasons of Appeal, the operative pleading.
At the end of cross examination, Jack Moneta is, once again, given another opportunity to identify his claims. He testified that, with respect to the majority of the accounts, he consented to their being joint. On re-direct there is no clarification as to the claim of undue influence or to what accounts. On re-cross, he admits that in the probate court he never claimed or alleged any fraud by Peter Moneta, upon the decedent, and that he only claimed undue influence.
On the other hand, the evidence does reveal that the defendant and his wife provided the decedent with assistance each day during the last six years of her life. They provided for her medical and personal needs and the defendant assisted her with the management of her finances. The creation of the jointly held financial accounts occurred well before her death and with her input, consent and knowledge. Documentary evidence was also offered through Peter Moneta that showed that he also contributed personal funds into some of these jointly held accounts. While the plaintiffs may have suspicions regarding the defendant's behavior and actions and have alleged undue influence, the evidence put forth by the plaintiffs at trial does not rise to the level of clear and convincing proof that in assisting with the decedent's finances, the defendant mismanaged or squandered any accounts of the decedent or otherwise acted without the consent of the decedent. Indeed, at the direction of the decedent, the plaintiffs and their spouses, as well as the defendant and his spouse, received substantial gifts of cash in 1997, 1998 and 1999. Peter Moneta never prepared nor signed any of the tax returns for his mother except for the final income tax return filed for the tax year 2001. The tax return for 2001 was not prepared by Peter Moneta but was signed by him at his mother's accountant's direction.
III Reasons for the Plaintiffs' Appeal A. Joint Bank Accounts and Undue Influence
The plaintiffs have alleged three reasons for their appeal from probate. The court will first address the first and third reasons. The first reason stated is that the defendant co-executor Peter Moneta, failed, neglected and refused to list and include, on the Inventory, on the Administration Account and on the Final Accounting for the Estate of Vera S. Moneta, certain jointly held assets listed on Schedule Four of the Succession Tax Return dated March 4, 2002 that was filed with the probate court. The plaintiffs claim it was the intent of the Decedent that said assets were to be held for the benefit of all of her beneficiaries, to be distributed to all of her beneficiaries equally upon her death. The third reason for the plaintiffs' appeal alleges that the defendant (Appellee) Peter Moneta exerted undue influence over the Decedent during her lifetime, thereby causing her to transfer various assets into jointly held accounts with the defendant.
The joint assets the plaintiffs complain of consist of monetary accounts held jointly with rights of survivorship in the names of the decedent and her son, the defendant Peter Moneta. Joint bank accounts are governed by General Statutes § 36a-290(a). The statute provides in relevant part:
When a deposit account has been established at any bank . . . in the names of two or more natural persons and under such terms as to be paid to any one of them . . . such account is deemed a joint account, and any part or all of the balance of such account . . . may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such person after the death of one or more of them.
General Statutes § 36a-290(b) provides that in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, the establishment of a joint account is prima facie evidence of the intent of all of the named owners to vest title in the account in the survivor. The existence of a joint bank account is prima facie evidence of joint ownership with survivorship; and the funds in such account do not become part of the estate of the first of the joint owners. Cooper v. Cavallaro, 2 Conn.App. 622, 625, 481 A.2d 101 (1984). In the normal course of proceedings in probate, joint accounts with the right of survivorship pass outside the will and do not become a part of the decedent's estate. See, Massini v. Massini, Superior Court, judicial district of Middlesex, Docket No. 60723 (June 4, 1992, Austin, J.) ( 7 Conn. L. Rptr. 639); see also, Moneta v. Moneta, Superior Court, judicial district of New Haven at Meriden, Docket No. CV03 0284642 S (March 23, 2004, Wiese, J.). Testimony that a joint account was created to help pay decedent's expenses is not clear and convincing evidence sufficient to overcome statutory presumption that it was intended to be a gift to the survivor; such payment of expenses is not inconsistent with an intent to vest title in the surviving account holder. Bunting v. Bunting, 60 Conn.App. 665, 760 A.2d 989 (2000).
Since a statutory presumption exists that the establishment of a joint account is intended to be a gift to the survivor, the presumption may be overcome only by clear and convincing proof of fraud, undue influence or other malfeasance. Cooper v. Cavallaro, supra at 625. "[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." CT Page 316 Boccanfuso v. Green, 91 Conn.App. 296, 305, 880 A.2d 889 (2005). "Our Supreme Court has defined `clear and convincing' as a very demanding standard that `should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.'" (Internal quotation marks and internal citations omitted.) Durso v. Vessickio, 79 Conn.App. 112, 123, 828 A.2d 1280 (2003)
Thus, it is up to the plaintiffs (Appellants) to rebut the statutory presumption contained in General Statutes § 36a-290(b) with evidence to establish that the bank accounts were not in fact joint accounts. See, Grass v. Grass, 47 Conn.App. 617, 661, 706 A.2d 1369 (1998); see also, Clayman v. Prochaska, 2 Conn.App. 430, 432-33, 479 A.2d 1214 (1984). The plaintiffs have failed to produce clear and convincing proof of any fraud, undue influence or other malfeasance by the defendant. "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 . . . 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." (Citation omitted; internal quotation marks omitted.) Dinan v. Marchand, 91 Conn.App. 492, 508 n. 1, 881 A.2d 503 (2005) quoting Pickman v. Pickman, 6 Conn.App. 271, 275, 505 A.2d 4 (1986).
The court finds that the plaintiffs have failed to prove the first, third and fourth elements of undue influence. Therefore, the court finds that in establishing the joint accounts with the defendant, the decedent intended that any balances remaining in the accounts at her death, were to be the property of the defendant, Peter Moneta. As such, the listing of these jointly held assets on Schedule Four of the Connecticut Succession Tax Return was proper. The refusal to list said jointly held assets on the estate Inventory, Administration Account and Final Accounting was also proper. See, Locke and Kohn, Connecticut Probate Practice § 375.
B Constructive Trust
The plaintiffs further claim that a constructive trust should be imposed on certain jointly held assets listed on Schedule Four of the Succession Tax Return assets, and other assets jointly held by the defendant and the Decedent, for the reason that, if such assets were jointly held by the defendant and the decedent, there were so held for the convenience of the decedent, with the intent that said assets, upon her death, would be distributed equally to her heirs.
"Our general standards governing the imposition of a constructive trust are well-established. [A] constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy." 76 Am.Jur.2d, Trusts, § 221, p. 446; see also Van Auken v. Tyrrell, 130 Conn. 289, 291-92, 33 A.2d 339 (1943); Zack v. Guzauskas, 171 Conn. 98, 103, 368 A.2d 193 (1976).
"[A] constructive trust arises . . . against one who, by . . . abuse of confidence . . . either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy." (Internal quotation marks omitted.) Riccio v. Riccio, 75 Conn.App. 556, 558-59, 816 A.2d 733 (2003), quoting Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). "Courts may use the equitable device of a constructive trust to remedy the unjust enrichment which results from not disposing of property as promised after the promise induced someone with whom the promisor shared a confidential relationship to transfer the property to the promisor. Starzec v. Kida, 183 Conn. 41, 49, 438 A.2d 1157 (1981)." Riccio v. Riccio, supra; Giulietti v. Giulietti, 65 Conn.App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).
"Before a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of the transfer of the property." Gulack v. Gulack, 30 Conn.App. 305, 310, 620 A.2d 181 (1993) (quoting Starzec v. Kida, supra, 183 Conn. 41; Filosi v. Hawkins, 1 Conn.App. 634, 639, 474 A.2d 1261 (1984); Downey v. Downey, 1 Conn.App. 489, 472 A.2d 1296 (1984); Restatement, Restitution § 183. If a confidential relationship is proved, then the burden of proving fair dealing or the burden of showing the absence of undue influence shifts to the defendant or the fiduciary, and that burden must be sustained by clear and convincing evidence. Alaimo v. Royer, 128 Conn. 36, 41, 448 A.2d 207 (1982); Hieble v. Hieble, 164 Conn. 56, 61, 316 A.2d 777 (1972). However, our courts have determined that the presumption of undue influence does not arise when the defendant is the son or daughter of the decedent.
Further, "[t]o conclude that a constructive trust exists, the trial court must find, in addition to the existence of a confidential relationship, that unjust enrichment of the party holding title would occur if the trust were not imposed." Gulack v. Gulack, supra at 313 (citing Filosi v. Hawkins, 1 Conn.App. 634, 639 (1984); CBS Surgical Group v. Holt, 37 Conn.Sup. 555, 558-59, 426 Conn.Sup. 555 (1981)).
Additionally, even though the Plaintiffs have claimed that a constructive trust should be imposed, because the subject accounts were jointly held between the decedent and her son, in survivorship, the court's analysis continues to be guided by General Statutes § 36a-290, in addition to the above.
In this matter the plaintiffs have failed to meet the affirmative burden to prove undue influence by clear and convincing evidence. In order to shift the burden to the defendant to rebut a presumption of undue influence for the purposes of imposing a constructive trust three conditions must be satisfied: (1) the existence of a confidential relationship; (2) an inter vivos transfer to this individual; and (3) evidence that the defendant was not the natural object of the testator's bequests. Here, the plaintiffs can show a confidential relationship and an inter vivos transfer to the defendant. However, the beneficiary, defendant Peter Moneta, is a son of the decedent and is a natural object of her bounty. Therefore, if the beneficiary is not a stranger, but a child, then the burden does not shift even though a confidential relationship between the defendant and the decedent may have existed.
There is a marked distinction between the situation where the beneficiary is a stranger and the situation where he is a child of the testator or grantor. Lockwood v. Lockwood, 80 Conn. 513, 522-23, 69 A. 8; Hills v. Hart, 88 Conn. 394, 396, 91 A. 257; Page v. Phelps, 108 Conn. 572, 587, 143 A. 890. When, as here, a child is the beneficiary, the burden of proving the absence of undue influence does not shift to the child, even though it appears that a confidential relationship existed. Goodno v. Hotchkiss, supra; Hills v. Hart, supra; Mooney v. Mooney, supra; Dale's Appeal, 57 Conn. 127, 144, 17 A. 757. `It is the child's privilege to anticipate some share of the parent's estate. He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty. From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised.' Hills v. Hart, supra.
Berkowitz v. Berkowitz, 147 Conn. 474, 477-78, 162 A.2d 709 (1960).
Additionally, the defendant has not been charged with fraud. The plaintiffs have alleged only undue influence. Fraud is not presumed and if it was, the burden-shifting rules and standard of proof, regarding allegations of undue influence do not apply to allegations of fraud.
In the present case, there was no allegation of such a confidential relationship in the plaintiff's Revised Reasons of Appeal. There were no documents submitted in evidence to this Court making any such allegation. In this case, the Appellee is the son of the decedent, he was far from being a stranger. Our courts have determined that the presumption of undue influence does not arise when the alleged influencer is the son or daughter of the decedent. The reason for this rule is explained in Hills v. Hart, supra, 88 Conn. 394. Confidence, close and continuing, should exist between parent and child. It is the child's privilege to anticipate some share of the parent's estate. He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty. From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised.
Therefore, the burden is, once again, upon the Appellants to prove by clear and convincing evidence that the defendant exerted undue influence over the decedent causing her to transfer various assets into survivorship with the defendant. In this case, the defendant (Appellee) was the son of the decedent, not a fiduciary. Well before her passing, the decedent opened with, and transferred some of her financial accounts into joint ownership with rights of survivorship, to the defendant. The plaintiffs (appellants) have alleged that these transfers were by way of undue influence exerted by Peter Moneta. As indicated by the operative statute (C.G.S. 36a-290), as well the relevant case law, the plaintiffs must prove their allegation by clear and convincing evidence and they have failed to do so. The court will not impose a constructive trust on the assets held jointly between the decedent and the defendant.
IV Summary and Conclusion
Following the death of her spouse, the decedent Vera Moneta began to transfer some of her assets into joint ownership with her son, the Defendant, Peter Moneta. She also opened some accounts jointly with him, as well. Plaintiff Jack Moneta claims, on one hand that these actions were undertaken with his consent, while on the other hand, through counsel, he questions how the accounts became jointly held.
The decedent left a will calling for the residue and remainder of her estate to be split amongst her heirs equally. The Plaintiff, Jack Moneta claims that the decedent never intended Peter Moneta to receive the balance of these accounts upon her death, and that accounts were made joint only for the convenience of managing Vera Moneta's funds, and for her bill paying needs. On the other hand, he cannot explain why his name is not on any of the accounts, nor why the accounts were not set up as custodial accounts.
Even if this court were to ignore the inconsistencies of Jack Moneta's testimony, and assume that these accounts were set up jointly merely for convenience sake, it is not dispositive of this matter in favor of the Plaintiffs as, the transfers and formations of financial accounts are not inconsistent with the possible intent of Vera Moneta to vest title in Peter Moneta, upon her death, and just as in Bunting v. Bunting, supra, 60 Conn.App. 665, "[t]he decedent may well have created a joint account with the defendant intending that the defendant use it to pay the decedent's expenses and that anything left upon [her] death would go to the defendant." The plaintiffs in this matter have failed to present any clear and convincing evidence that the decedent did not intend these accounts to become the property of the Defendant upon her death.
The Plaintiffs also claim, apparently in the alternative, that a constructive trust should be imposed upon the assets listed in Schedule Four of the Succession Tax Return, however, they still must prove their claim by clear and convincing proof, and they failed to meet their burden. In addition to not meeting their burden of proof, the Plaintiffs have failed to meet the requirement that any such funds that may be subject to the constructive trust be readily identifiable or traceable.
The Plaintiffs did not call any experts to testify, in any way to Vera's alleged lack of capacity. In fact, their own witnesses proved quite the contrary. Stanley Orzechowski, husband of plaintiff Karen Orzechowski, testified that the decedent Vera Moneta recognized them all of the time, and that she was generally aware of where she was (even when she was in Masonic Hospital). Lynda Moneta testified that, when they visited the decedent sometimes they would just walk right into her house, and that the decedent had no problems recognizing them, and had never called the police on them when they would so abruptly walk in. There was no testimony nor documentary evidence presented as to Vera Moneta's capacity, nor lack thereof, for the five or six years prior to her death, when most of the subject joint accounts were transferred and/or opened.
The defendant, on the other hand, offered the testimony of Attorney Kenneth Secol. While Attorney Secol is not a physician, as a legal specialist in estate planning he does have professional experience with ascertaining whether or not he believes that a person is capable of signing important legal documents. Apparently Attorney Secol believed that, on at least August 29, 2001, Vera Moneta was capable, as he took her acknowledgment on the power of attorney, outside of the presence of the defendant, Peter Moneta. While there are passing references to dementia or organic brain syndrome in the trial record, there is certainly no diagnosis or evidence of any permanent mental condition that would lead the court to believe that the decedent was legally incompetent to understand the nature of her financial and personal affairs.
The Plaintiffs have not proven their case by clear and convincing proof or even the lesser standard of a fair preponderance of evidence. Accordingly the court finds in favor of the defendant appellee Peter Moneta, and hereby orders that appeal of the plaintiffs-appellants be dismissed.