Posts tagged with "Connecticut Superior Court"

Property Conveyance May Satisfy the Statute of Frauds Requirement to Create a Trust

Property Conveyance May Satisfy the Statute of Frauds Requirement to Create a Trust

Ciccaglione v. Stewart, CV074008040, 2012 WL 671933 (Conn. Super. Ct. Feb. 8, 2012)

In a recent case before the Connecticut Superior Court, two daughters sought a declaratory judgment as to the validity of an unsigned document purporting to be their deceased mother’s trust agreement and quiet title to a contested piece of real estate. The daughters contended that the trustees held the contested property in fee simple; therefore, the real estate was not part of the mother’s estate to be distributed in accordance with her will. The trial court concluded that the trust was validly created and the contested real property was a trust asset.

The original executed copy of the mother’s 2004 trust agreement could not be found after her death. Two of her daughters sought a court judgment declaring that an unsigned copy of their mother’s trust agreement created a valid and enforceable inter vivos trust, They contended that an irrevocable trust had been created in August 2004 when their mother executed and recorded the warranty deed that conveyed the contested property to the trust because the conveyance and circumstances surrounding it manifested their mother’s clear intent to create that trust. The remaining heirs denied these allegations and raised several special defenses, including that the unsigned trust agreement did not comply with the Statute of Frauds, that the deed was invalid, that one or both of the daughters exerted undue influence over their mother and that their mother lacked capacity when she created the trust.

The requisite elements of a valid and enforceable trust are: (1) a trustee, who holds the trust property and is subject to duties to deal with it for the benefit of one or more others; (2) one or more beneficiaries, to whom and for whose benefit the trustee owes the duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries. Goytizolo v. Moore, 27 Conn.App. 22, 25, 604 A.2d 362 (1992). According to the Restatement of Trusts, if the owner of property declares himself to be the trustee of the property or transfers it “in trust” for a named person, such writing sufficiently demonstrates the purpose of the trust to satisfy the writing requirement of the Statute of Frauds. Restatement (Second) of Trusts § 46 cmt. (a) (1959).

The daughters alleged that the August 2004 warranty deed conveying the contested property to their mother’s inter vivos trust satisfied the Statute of Frauds because it set forth the trust property, the beneficiaries and the purpose of the trust with reasonable definiteness. Because the warranty deed transferred the property from the mother individually to the inter vivos trust, it was as if the property was transferred “in trust” for a named person and the warranty deed was a declaration of a passive trust. They also contended that because the mother signed the warranty deed as trustee, she was declaring herself to be the trustee of the property for the beneficiaries of the inter vivos trust. Although the court concluded that the execution of the warranty deed by itself funded rather than created the inter vivos trust, the court also concluded that the warranty deed was sufficient evidence to satisfy the Statute of Frauds. The deed was a writing signed by the mother demonstrating that she manifested an intent to create the trust and impose the duty of a trustee upon herself. Additional testimony from witnesses at the trial supported the court’s conclusion that the mother executed the trust agreement, along with her will and the warranty deed, in August 2004 as part of her overall testamentary plan and that unsigned copy of the trust agreement submitted by the two daughters was a true copy of the agreement which established the terms of the agreement.

The heirs contesting the trust alleged that the August 2004 warranty deed conveying the contested property to the mother’s inter vivos trust was invalid because the deed named the trust rather than the trustee as the grantee of the property. According to the Connecticut Standards of Title, a grantee of real property must be in existence and have capacity to take and hold legal title to land at the time of the conveyance. A trust does not have such capacity: the trustee, or other fiduciary of the trust, is the appropriate grantee. See Connecticut Bar Association, Connecticut Standards of Title (1999), standard 7.1, comments 1 and 4. Connecticut law, however, provides that deeds with certain defects are considered to be valid unless an action challenging the deed and a lis pendens are recorded in the town land records within two years of recording the defective instrument. Conn. Gen. Stat. § 47-36aa(a). This statute covers defective deeds made to grantees that are not recognized by law as having the capacity to take or hold an interest in real property. Conn. Gen. Stat. § 47-36aa(a)(4). Because the heirs contesting the trust did not file an action challenging the validity of the deed within two years of its recording, the trial court concluded that the August 2004 warranty deed had been validated by the operation of the statute, which confirmed the conveyance to the grantee and any subsequent transfers of the interest by the grantee to any subsequent transferees.

The heirs contesting the trust alleged that the trust was void because one or both of the two daughters seeking to enforce the trust exerted undue influence over their mother during its making. Undue influence is the exercise of sufficient control over a person in an attempt to destroy his free agency and constrain him to do something other than what he would do under normal circumstances. Connecticut case law sets out four elements necessary for a finding 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. Gengaro v. New Haven, 118 Conn.App. 642, 649–50, 984 A.2d 1133 (2009) (internal quotations omitted); see also Dinan v. Marchand, 279 Conn. 558, 560, fn.1 (2006). The heirs contesting the trust argued that their mother was susceptible to undue influence because of her medical condition and fear of being placed in a nursing home. They also alleged that one or both of the daughters who were seeking to enforce the trust were in a position to influence her because they had medical and financial control over their mother. At least one of the two daughters, who was the oldest female in a family of eleven, had the disposition to exert such influence. Finally, they argued that the terms of the trust revealed the extent of that influence because the terms benefitted the daughters seeking to enforce the trust. However, based on the testimony of witnesses at trial, the court concluded that the mother was not under any undue influence when she executed the trust and other testamentary documents in August 2004.

Finally, the heirs contesting the trust argued that the trust agreement was void due to their mother’s lack of capacity. Specifically, they argued that there was evidence that their mother did not understand the terms of the trust agreement because when she later wanted to sell the contested property, she discovered that she could not. The mother had medical and neurological conditions, including a stroke in 2003 and terminal cancer in 2006; therefore, she was preoccupied with her health and was concerned about being placed in a nursing home. Furthermore, she loved all of her children and wanted them to be treated equally and fairly, but the terms of the trust are unfair to some of the beneficiaries.

Capacity to make a trust is the same as the capacity to make a will or other testamentary instrument. 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 create an enforceable inter vivos trust at the same time she created her other testamentary documents. Furthermore, the mother’s expressed wishes were to preserve her property for her children and grandchildren; the court concluded that the trust was the most plausible legal means to carry out these wishes.

The trial court concluded that the trust was validly created and the contested real property was a trust asset. Therefore, the unsigned copy of the trust was an expression of the intent of the mother, in her capacity as grantor, and was a valid and enforceable trust instrument.

Should you have any questions relating to trusts, 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.

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In Connecticut, Lost Wills are Presumed to Have Been Revoked by Their Makers

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.

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