In Connecticut, Lost Wills are Presumed to Have Been Revoked by Their Makers
Ciccaglione v. Stewart, CV074008040, 2012 WL 671933 (Conn. Super. Ct. Feb. 8, 2012)
In a recent case before the Connecticut Superior Court, three daughters appealed a probate court decree and order that their mother’s unsigned will was duly proved and approved for probate administration. The trial court conducted a trial de novo because no record was made of the Probate Court proceedings. The trial court found that the mother had not revoked the will and that she had sufficient testamentary capacity; therefore, the will was duly proved and approved for probate administration.
The children of the deceased conducted an extensive, yet unsuccessful search for an executed copy of their mother’s will. The attorney who drafted the will provided the probate court with an unexecuted copy of the will from his files. The probate court decreed that this will was duly proved and approved for probate administration. Three of her daughters contested the probate court ruling, alleging that the other heirs could not overcome the presumption that their mother revoked the lost will. They further argued that, even if the proponents of the will could overcome that presumption, their mother lacked testamentary capacity on the date that she allegedly executed the will.
Connecticut law provides that, with certain exceptions, a testator can only revoke his will by “burning, cancelling, tearing, or obliterating it” or by a later will. Conn. Gen. Stat. § 45a-257. Additionally, common law doctrine is that if a will cannot be found after the death of its maker, a rebuttable presumption arises that the testator destroyed his will with the intent to revoke it. Patrick v. Bedrick, 169 Conn. 125, 126–27, 362 A.2d 987 (1975). To overcome the presumption of revocation, the proponent of a lost will must prove: (1) due execution of the will in compliance with Conn. Gen. Stat. § 45a-250 et seq; (2) that the will was last in possession of the testator prior to his death; (3) the impossibility of producing the will or that a diligent search had been made for the will and it could not be found; (4) the contents of the will could not be established by independent evidence; and (5) that the testator did not intend to revoke the will. See Ferris v. Faford, Superior Court, judicial district of Windham, Docket No. CV 02 0068652 (February 3, 2004, Cosgrove, J.), aff’d, 93 Conn.App. 679, 690, 890 A.2d 602 (2006); Nugent v. Wilhite, Superior Court, judicial district of [New Haven], Docket No. CV 93 0344772 (September 16, 1994, Meadow, J.T.R.)
According to Connecticut law, a will is only valid if it is “in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator’s presence.” Conn. Gen. Stat. § 45a–251. The daughters contesting the will argued that due execution of the will, in accordance with this statute, could not be proved by clear and satisfactory proof because only one attesting witness offered live testimony to the probate court. However, the Connecticut Supreme Court has previously ruled that, in order to make a prima facie case of due execution and testamentary capacity, proponents of the will need to provide only one of the attesting witnesses for trial. Shulman v. Shulman, 150 Conn. 651, 656, 193 A.2d 525 (1963). The three witnesses before the trial court in this case were the mother’s attorney, who oversaw the execution and notarized the signing, one of the attesting witnesses, and a third party who was present at the execution. All three individuals testified to the identities of the two attesting witnesses and the manner of execution. Therefore, the trial court concluded that there proponents of the will offered clear and convincing proof that the will was duly executed.
The attorney who oversaw the execution and notarized the will also testified that he provided the probate court with the unsigned copy of the mother’s will from his files and that the contents of the document were the same as the will that was executed by the mother. Connecticut precedent is that an unsigned copy of a will that was retained in the files of the attorney who drafted the will and was identified by the drafting attorney establishes clear and satisfactory proof of the contents of the original will. Ferris v. Faford, supra, Superior Court, Docket No. CV 02 0068652; Nugent v. Wilhite, supra, Superior Court, Docket No. CV 93 0344772. Therefore, the trial court found that the copy of the unsigned copy of the will was a true copy and established the terms of the will. Based on additional testimony at trial, the court concluded that by clear and satisfactory evidence the mother was in possession of her last will and testament on the date of her death, and that she had no intent to revoke it. Therefore, the trial court concluded that the proponents of the will had overcome the presumption that their mother had revoked the lost will.
Connecticut statutory law generally requires that at testator be “any person eighteen years of age or older, and of sound mind.” Conn. Gen. Stat. § 45a-250. Case law establishes the test for testamentary capacity as “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). Testamentary capacity is assessed at the time the instrument is executed, and not on the testator’s ability years later to remember the contents of the instrument. Therefore, based on testimony from several witness at trial, the court concluded that the mother had sufficient testamentary capacity to execute her will.
Because the trial court concluded that the proponents of the will had overcome the common law presumption that the lost will had been revoked and had also established that their mother had sufficient testamentary capacity to execute her will, the trial court declared the unsigned copy of the will that had been submitted to the probate court to be legally valid and enforceable.
Should you have any questions relating to wills, estates and other personal asset protection issues, please do not hesitate to contact Attorney Susan Maya, at SMaya@Mayalaw.com or 203-221-3100, and Attorney Russell Sweeting, at RSweeting@Mayalaw.com or 203-221-3100, in the Maya Murphy office in Westport, Fairfield County, Connecticut.