Opinion
No. CV 04-0490866 S
April 19, 2006
MEMORANDUM OF DECISION
The instant matter, a de novo appeal from the Probate Court of Hamden's admission of the decedent's Will to probate, was tried to the court on April 5, 2006.
The issues before the court are whether the decedent, Carmen I. Morico, possessed or lacked testamentary capacity on August 28, 1998 when he executed his last will and testament at the office of Attorney James O. Walsh in New Haven, and was the decedent the subject of undue influence in his selecting as beneficiaries, his nephew, John Morico, and his niece, Joyce Ruocco.
The plaintiffs are the decedent's brother, Adolf Morico, and the decedent's sister, Esther Munz.
1. TESTAMENTARY CAPACITY
It is established law in Connecticut that the burden of proof with respect to due execution and testamentary capacity is on the proponent's of the will, the defendants in this case. Wheat v. Wheat, 156 Conn. 575, 578 (1968). "The well established test for testamentary capacity is whether the testator had mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution." City National Bank and Trust Co.'s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958); Kirk v. Woodhouse, No. CV 02-0469544, 2003 CT.Sup. 10308, Judicial District of New Haven, September 3, 2003. The ultimate determination as to whether a testator has measured up to this test is a question of fact for the trier. Stanton v. Grigley, 177 Conn. 558, 564 (1979).
Whether or not the Will in question is valid involves three questions: (1) Was the Will executed with the requisite legal formalities? (2) Did the testator have testamentary capacity? and (3) Did the testator execute the Will freely without undue influence, fraud or mistake? Rockwell's Appeal from Probate, 54 Conn. 119, 120 (1886). Question 1 is not at issue in this case as the plaintiff has admitted due execution insofar as the requisite legal formalities are concerned.
Questions (2) and (3) are at issue in this case.
The evidence disclosed that the testator had executed two prior Wills which were introduced as exhibits. The August 25, 1981 Will left his entire estate to his sister Mary A. Morico, with whom he lived. On December 10, 1992, the decedent executed a second Will, which again left his entire estate to his sister Mary, but included a provision making his surviving brothers and sisters contingent beneficiaries in the event of Mary's predeceasing him.
In the Will at issue in this case dated August 28, 1998, the decedent left his one-half interest in his home at 1788 Dixwell Avenue, Hamden, to his niece, Joyce Ruocco. Said Will further directed that his tangible personal property and the remainder of his estate would be shared equally by said Joyce Ruocco and the decedent's nephew, John L. Morico, with whom the decedent had lived following the death of his sister Mary on April 24, 1998.
The evidence further disclosed that Joyce Ruocco spent considerable time with decedent, following the death of Mary, cooking and shopping for him, driving him to doctor appointments, and generally looking after his welfare. Therefore, it is apparent to the court that John L. Morico and Joyce Ruocco were the relatives who the spent most time with the decedent following Mary's death when he would otherwise have been alone.
The plaintiffs have not offered the testimony of any medical expert on the issue of testamentary capacity. They have offered a hospital record of the decedent's hospitalization at St. Raphael's hospital between the dates of March 17 to March 21, 1998. Said record reveals that shortly after admission the decedent "most likely had senile dementia," but after receiving haldol for several days, "he seemed to become more oriented to time and place and his dementia appeared to be resolving." Parenthetically, the decedent remained on haldol after his discharge up to the time of Will execution. Also, the plaintiff offered the medical reports of Paul A. Monaco, M.D. concerning an examination on April 13, 1998, a diagnosis of "probable dementia" and a recommendation for "geriatric evaluation," as well as the report of Adler Geriatric Assessment Center. This assessment took place on December 10, 1998. A reading of this evaluation reveals the following:
He receives assistance with all instrumental activities of daily living but can make a sandwich independently . . . does get disoriented easily while driving . . . some episodes of agitation . . . however, there is no concrete thought disorder, delusion, suicidal ideation or depression.
This assessment took place more than three months after the date of execution. The Monaco report concerned an examination occurring over four months before Will execution. There is no question that the decedent was experiencing some degree of dementia at the age of 84; however, Connecticut law holds that a "testator may be competent to make a Will though he does not have the mental capacity sufficient for the management or transaction of business generally" and further that "some mental impairment could occur and still leave the [testator] with a sound mind within the definition of testamentary capacity . . ." Doolittle v. Upson, 138 Conn. 642, 645 (1952). Accordingly, and in the absence of expert testimony as to the decedent's mental acuity at or near the time of execution, the court is forced to conclude that the plaintiffs have failed to satisfy their burden of proving lack of testamentary capacity by a preponderance of the evidence.
On the other hand, defendants offered the testimony of Attorney James O. Walsh and the self-proving affidavits of Doreen A. Knickerbocker and Kerry W. Powell, the attesting witnesses to the Will. Attorney Walsh testified that he had known the decedent for many years prior to the execution of the Will. As a matter of fact, Mr. Walsh had witnessed both the August 25, 1981 and the December 10, 1992 Wills of the decedent. He stated that the decedent had called him to schedule an appointment for the purpose of changing his Will. The decedent appeared in Walsh's office on August 21, 1998, properly attired, and engaged in conversation during which he exhibited a clear understanding of his assets and clearly expressed what he wanted to do with his assets at the time of his death. This meeting lasted for 30 minutes. During this time, the decedent told Attorney Walsh that he was aware of the contents of his prior Will and that he wanted to change the Will because it left everything to his sister Mary who had recently died. He next told Attorney Walsh that his nephew, John L. Morico, and niece, Joyce Ruocco, were taking care of him and that he wanted his new Will to provide for them. According to Walsh the decedent instructed him to prepare a new Will in accordance with his wishes. Thereafter, on August 28, the decedent reappeared at Walsh's office to execute his Will. Walsh testified that the decedent appeared of sound mind throughout the execution process and that he, Walsh, had no reason to question whether the decedent lacked testamentary capacity.
Attorney Walsh's testimony, along with the self-proving affidavits of the attesting witnesses and the lack of any other expert opinion in the issue of testamentary capacity, convince the court to conclude that the decedent was of sound mind and memory on August 28, 1998, and that he possessed the requisite testamentary capacity to understand the proceedings in which he was engaged. Further, the court finds that the decedent understood that he was executing his Will whose provisions were in accordance with his wishes.
2. UNDUE INFLUENCE
"Ordinarily, the burden of proof on the issue of undue influence rests on the one alleging it, and this is true whether the issue arises in a Will contest or a proceeding in equity to set aside as conveyance." Berkowitz v. Berkowitz. 147 Conn. 474, 476 (1960). An exception to this principle is recognized when a stranger holds a relationship of trust and confidence with a testator and becomes a principle beneficiary under the Will, and natural objects of the testator's bounty are excluded. Downey v. Guilfoile, 93 Conn. 630, 632, 107 A. 562. In the present case, we do not have a "stranger." On the contrary, we have a niece and nephew who took under the Will, to the exclusion of a brother and sister. Thus, the court does not find that a shift of the burden of proof would be appropriate.
The required proof is expressed clearly in Lancaster v. Bank of New York, 147 Conn. 566 (1960) where the Court states at pages 573-74:
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, 88, Conn. 394, 402 (1914).
The only evidence from the testator himself as to his testamentary desires, was provided by Attorney Walsh who testified that the Will embodied the wishes of the decedent. These wishes were that the testator, a bachelor uncle, was to provide his nephew and niece with the assets of his estate to the exclusion of his siblings from which he had become estranged prior to Will execution. Whether said estrangement was, or was not justified, is not material to the present inquiry. As a matter of fact, it was probably due to the unrealistic expectations that the decedent felt were due him from his siblings. These expectations are often second nature to the elderly when it comes to what they feel is due them from relatives and friends after they become elderly and/or disabled.
Accordingly, the court finds that the testator was not overcome by undue influence when he selected his legatees and that said Will contained "the actual testamentary desires of the decedent." Therefore, the decedent executed a valid Last Will and Testament on August 28, 1998. Said Will was executed of his own free Will; and he knew and understood the nature of the business upon which he was engaged.
The court, in closing, would like to compliment the decision of Judge Salvatore L. Diglio, which the court finds extremely well written and complete.
Therefore, the plaintiffs' appeal is denied.