Posts tagged with "judgment"

Jury Instruction Was “Accurate,” Not Misleading: Appeals Court Affirms Evading Responsibility Judgment

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s claim that the trial court’s jury instruction regarding the elements of evasion of responsibility was misleading.

This case arose from an incident that occurred on the night of July 16, 2001, in Bridgeport, CT. The defendant consumed six beers in three and a half hours before and while eating dinner. He left the restaurant in his truck and approached the same intersection as the victim, who was on a motorcycle. Without signaling, the defendant turned into the victim’s path, and despite significant effort to avoid a collision, the victim struck the back end of the truck. The victim was thrown from his motorcycle and died from his injuries. A witness observed the accident and later testified that “the truck then stopped, the defendant stepped out of the truck, looked, got back in and took off.” Police pursued the defendant, who stopped only after he was forced to by a second police cruiser. The defendant was visibly intoxicated, and blood alcohol tests produced readings of 0.172 and 0.167, over twice the legal limit.

The defendant was charged with second-degree manslaughter, second-degree manslaughter with a motor vehicle, and evading responsibility, in violation of Connecticut General Statutes (CGS) §§ 53a-56(a)(1), 53a-56b(a), and 14-224(a), respectively. At trial, the defendant testified that “while he was turning left, after giving a signal, he felt an impact toward the rear of his truck, saw nothing and thought someone had hit his vehicle and driven off.” The defendant was convicted on the second two counts. He appealed his conviction, arguing, in part, that the trial court did not properly instruct the jury regarding the elements of evading responsibility. Specifically, he claimed:

1)      The court misled the jury by using the word “prevent” rather than “unable” with respect to reporting requirements of CGS § 14-224(a).

2)      The court improperly instructed the jury that it had to find that “some outside force caused the defendant to be unable to report the information,” rather than “the defendant’s being unable to report for any cause or reason.”

3)      The court did not instruct the jury that the defendant was legally excused from the remaining statutory requirements because he was arrested while seeking assistance for the victim.

The Appellate Court was not persuaded by any of these arguments. Because the defendant did not draw a sufficient distinction between the use of “prevent” and “unable,” the court’s use of the first word was harmless. The Court reiterated that CGS § 14-224(a) does not provide any legal excuse for failing to stop. As the legislative history indicates, “failure to stop immediately cannot be cured at some later time by an operator reporting the incident to police.” As such, a reasonable jury could find that the defendant did not immediately stop and render assistance to the victim following the collision, and by leaving the scene he was not satisfying his duties under the statute. The Appellate Court found that the jury instruction, as given, was proper and did not deprive the defendant of a fair trial.

When faced with a charge of evading responsibility, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate
Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendants, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

College Expenses and Divorce

Going through a divorce is often a very emotional and overwhelming experience, often complicated by motions, discovery, court appearances and negotiations. By the end of the mandatory “cooling off” or pendente lite phase (Latin for “while the action is pending”), one may find himself or herself confused and eager to resolve the case. When considering the terms of a potential divorce settlement involving minor children, it is very important to keep future college expenses in mind. If overlooked, it may be very difficult or impossible to obtain contribution from a former spouse for books, tuition and/or living expenses should your child choose to attend college. There are various ways this issue can be addressed, and for a complete understanding, some fundamental information is useful.

Generally speaking, a divorce is typically resolved in one of two ways. The first is utilized when, despite efforts to come to a fair resolution, the parties are unable to agree on custody, visitation, child support, alimony, and/or the division of assets. When one or more of those aspects of the divorce remain in dispute, a trial will be necessary to obtain a final judgment. After hearing evidence and considering each party’s case, the Court will decide the terms of the divorce and enter orders accordingly. However, where parties are able to reach an agreement, the Court may rely on the terms of that agreement and enter orders in accordance therewith. Regardless of which avenue is taken, final court orders must ultimately be entered to formalize the dissolution of the marriage and define the terms of the divorce.

Though a divorce becomes “final” upon judgment, often orders require modification due to changes in circumstances which occur after the marriage is officially dissolved. Examples include modifying child support and/or alimony due to a change in one or both parties’ financial circumstances, or modifying custody or visitation due to changes in the characteristics of the parties’ home, work schedules or living conditions. Other times, it is necessary to add orders that simply were not ripe for adjudication at the time the divorce was obtained. Orders entered after a divorce becomes final are referred to as “post judgment” orders.

In Connecticut, educational support orders are governed by Connecticut General Statutes Section 46b-56c. This statute authorizes the Courts to enter orders defining how the parties will handle their children’s “necessary educational expenses.” By statute, necessary educational expenses include room, board, dues, tuition, fees, registration and application costs up to the amount charged by the University of Connecticut for a full-time, in-state student at the time the child registers. That being said, parents can agree to increase the limit beyond the amount charged by the University of Connecticut if they choose. The educational support order may include the cost of books and medical insurance for the child as well. An educational support order is limited to four full academic years at an institution of higher education or a private occupational school for the purpose of obtaining a bachelors or other type of undergraduate degree, or vocational instruction.

Educational support may be handled at the time of the divorce or post judgment. When handled at the time of the divorce, the parties simply include in their separation agreement a provision outlining in detail how they will divide necessary educational expenses. As children are often young during the divorce and the parties’ circumstances at the time the child will be ready to attend college are unforeseeable, this issue is not always ripe for consideration at the time of the dissolution. In such cases, the parties may wish to defer the issue until the child is older. It is very important to note that if the parties choose to do so, they must include in their separation agreement a provision expressly requesting that the Court retain jurisdiction over this issue. If the parties fail to do so, the Court will not allow either party to request its involvement in the future.

Assuming the parties request that the Court retain jurisdiction over educational support, either may come back to Court at the appropriate time to request a post judgment educational support order. Once the post judgment action is commenced- as with the divorce itself- the parties may resolve the issue by agreement or request a hearing. Important to note is that whether the order is entered at the time of the divorce or post judgment, the Court must find that it is more likely than not the parents would have provided support to the child for higher education or private occupational school if the family remained intact. The parties may stipulate to this fact in an agreement. If a post judgment hearing is required, the Court will make that determination and by considering specific evidence including the parents’ income and assets, the reasonableness of the higher education considering the child’s academic record and financial resources available, as well as the child’s preparation for, aptitude for and commitment to higher education.

Attorney DeMeola in Maya Murphy’s Westport office. He welcomes inquiries and can be reached by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Court Permits Mother to Travel Internationally with Minor Children without Providing Prior Notice to Children’s Father

In a decision rendered earlier this year, the Connecticut Appellate Court upheld a lower court ruling that allowed a mother to travel internationally with the parties’ minor children without providing prior notice to, or receiving permission from, the children’s father. The parties in this post judgment divorce action were married for approximately three years and were the parents of two minor children. As part of its final judgment of dissolution, the court ordered that neither parent could travel with the children to a country that had not ratified the Hague Convention or that was on the list of countries for which the United States had not accepted accessions. This was presumably an issue during the parties’ divorce as the wife was a Russian citizen, owned property in Russia and maintained significant ties with family that still lived there.

Approximately two years after the parties’ divorce, the wife filed a motion for temporary custody and supervised visitation, claiming that the husband’s behavior was becoming threatening and increasingly bizarre. After a lengthy period of litigation, the court awarded the mother sole custody and ordered the father’s visitation to be supervised. The court also entered an order permitting the mother to travel internationally with the children without providing prior notice to, or receiving permission from, the father.

The father appealed, claiming the lower court erred in allowing the mother to travel with the children to Russia. According to the father, Russia’s status as a nonsignatory country to the Hague Convention’s child abduction provisions prevented the court from maintaining jurisdiction and/or enforcing its custody orders in the event the mother decided not to return with the children. However, the Appellate Court was not persuaded. Pointing out that there was no credible evidence to suggest that the mother would refuse to return with the children, the Court noted that the mother had invested time and money in establishing a home and career in Connecticut, that she was taking all the necessary steps to become a United States citizen and that she was making the children available to the father for his supervised visitation.

The matrimonial attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience handling divorce and custody matters, and assist clients from Greenwich, Stamford, Darien, New Canaan, Norwalk, Westport and Fairfield. For more information, please feel free to contact Michael D. DeMeola, Esq. at (203) 221-3100, or mdemeola@mayalaw.com.
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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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Approximately two years after the parties’ divorce, the wife filed a motion for temporary custody and supervised visitation, claiming that the husband’s behavior was becoming threatening and increasingly bizarre. After a lengthy period of litigation, the court awarded the mother sole custody and ordered the father’s visitation to be supervised. The court also entered an order permitting the mother to travel internationally with the children without providing prior notice to, or receiving permission from, the father.

The father appealed, claiming the lower court erred in allowing the mother to travel with the children to Russia. According to the father, Russia’s status as a nonsignatory country to the Hague Convention’s child abduction provisions prevented the court from maintaining jurisdiction and/or enforcing its custody orders in the event the mother decided not to return with the children. However, the Appellate Court was not persuaded. Pointing out that there was no credible evidence to suggest that the mother would refuse to return with the children, the Court noted that the mother had invested time and money in establishing a home and career in Connecticut, that she was taking all the necessary steps to become a United States citizen and that she was making the children available to the father for his supervised visitation.

The matrimonial attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience handling divorce and custody matters, and assist clients from Greenwich, Stamford, Darien, New Canaan, Norwalk, Westport and Fairfield. For more information, please feel free to contact Michael D. DeMeola, Esq. at (203) 221-3100, or mdemeola@mayalaw.com.

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Assets Protected From Creditors in Connecticut

            In today’s economy more and more people find themselves having a hard time paying the bills and avoiding late payments.  Still others have a problem with creditors chasing them for unpaid debts.  Now more than ever it is important for you to know what assets are protected from creditors and what are not.     

            Connecticut law provides some protection from creditors in a situation where your income or assets are subject to a court judgment or lien.  You can protect yourself in a variety of ways by planning ahead and consulting with a professional financial planner and an attorney.   Taking out liability insurance or setting up a corporate entity or trust for your property are examples of how you can shield your assets from future creditors.  However, there are some individual assets that are automatically protected from creditors.  Here is brief summary of the law in Connecticut: 

            A.            Wages    

            Once a creditor obtains a judgment against you, it can apply for an execution against your wages.  See Connecticut General Statutes, Section 52-361a.  Connecticut law does provide for some protection in this situation.   No more than twenty-five percent of an individual’s weekly disposable earnings may be subject to a wage execution.  The portion of disposable earnings subject to the wage execution is withheld and applied to the amount of the judgment.    In some cases, the maximum amount that can be withheld may be less depending upon the ratio between the individual’s disposable earnings and the hourly minimum wage in effect at the time of the execution. 

            B.             Retirement Plans

            Generally, retirement plans are exempt from claims by creditors.  Both IRAs and 401ks are protected assets pursuant to Connecticut General Statues, Section 52-321a. 

            C.             Personal Property

            Connecticut law provides a list of exempt personal property that creditors cannot claim an interest in pursuant to Connecticut General Statutes, Section 52-352b.  The list of property includes basics necessities such as apparel, bedding, foodstuffs, household furniture and appliances.  Items necessary for a person’s occupation or profession such as tools, books, instruments, farm animals and livestock feed are also considered exempt property.  Wedding and engagement rings are not subject to creditor claims as well.

            D.             Insurance and Government Assistance Payments

            Some insurance and government assistance payments are exempt from creditors under Connecticut General Statutes, Section 52-352b.   Health and disability insurance payments are exempt as are Workers’ compensation, Social Security, veterans and unemployment benefits.  In addition, under Connecticut General Statutes, Section 38a-453, creditors of an insured cannot seek payment from a life insurance policy beneficiary under most circumstances. 

            E.             Child Support and Alimony Payments

            Any court approved child support payments received by a debtor are exempt and protected from creditors.  Alimony payments, to the extent that wages are exempt from creditor claims, are also protected.  See Connecticut General Statutes, Sections 52-352b & 52-361a.

            F.             Real Estate

            Your homestead or personal residence is exempt from creditor claims up to the value of seventy-five thousand dollars.  If a creditor has a money judgment arising out of hospital services, then the value of the exemption increases to one hundred twenty-five thousand dollars.  The exemption is calculated based upon the fair market value of the equity in the property taking into account any statutory or consensual liens on the property.  See Connecticut General Statutes, Section 52-352b.

            There is no such exemption in place for commercial real estate or rental properties.   

            G.             Motor Vehicles

            Only one motor vehicle is exempt from creditor claims up to the value of one thousand five hundred dollars.  The exemption is calculated by estimating the fair market value of the motor vehicle and taking into account any relevant liens or security interests.  See Connecticut General Statutes, Section 52-352b.

           H.              Bank Accounts

         A creditor can enforce a judgment by way of a bank execution.  However, the same exemptions apply to bank accounts as they do to government assistance, insurance, alimony and child support payments as outlined above.  Therefore, you have the opportunity to challenge a bank execution based on these exemptions and prevent a creditor from taking money out of your account.   In addition, you can claim a general exemption not to exceed one thousand dollars.

            In conclusion, Connecticut law prevents creditors from seizing all of your income, property, possessions and savings pursuant to a judgment or lien.  However, the law does not prevent a debt collector from jeopardizing your livelihood and financial wellbeing.  You best bet is to limit individual liability and plan ahead to avoid a creditor claim in the first place.  Consulting with a professional financial planner and an attorney is recommended.       

 

Connecticut Supreme Court affirms order of Accounting for attorney-in-fact appointed under Durable Power of Attorney

Connecticut Supreme Court affirms order of Accounting for attorney-in-fact appointed under Durable Power of Attorney

In re Bachand, 306 Conn. 37 (2012)   

 

Lisa Charette, the plaintiff and attorney-in-fact for Mary E. Bachand, appealed from a Superior Court judgment upholding the decision of the Probate Court for the district of West Hartford.  The decision required the plaintiff to provide an accounting of her actions as attorney-in-fact for Ms. Bachand who executed a durable power of attorney.  Ms. Bachand had progressive Alzheimer’s disease and was relocated to a long-term care facility in West Hartford, CT.  The Superior Court ruled that the Probate Court had subject matter jurisdiction to order an accounting in accordance with Conn. Gen. Stat. § 45a-175 (b) because Ms. Bachand resided within the district of West Hartford. 

On appeal, the plaintiff claimed the Superior Court improperly ruled that the Probate Court had subject matter jurisdiction to order the accounting under the circumstances and erroneously found that the defendant, Cheryl Miller-Gray, had standing to make an application for an accounting. 

The Supreme Court held that Ms. Bachand’s lack of intent to reside in West Hartford was not relevant to the Probate Court’s jurisdiction.   Under Conn. Gen. Stat. § 45a-175 (b), the term “resides” means the place where a person actually lives no matter whether they have the intention to remain there.  Further, the defendant had standing to proceed with an application for an accounting because she was the sole remaining successor attorney-in-fact pursuant to the durable power of attorney.  The defendant did not need to present evidence to establish cause for the accounting pursuant to Con. Gen. Stat. § 45a-175 (b).  Therefore, the judgment of the Superior Court was affirmed.   

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Connecticut Appellate Court finds that Incorrect Standard was applied for Testamentary Capacity to make a Will

Connecticut Appellate Court finds that Incorrect Standard was applied for Testamentary Capacity to make a Will

Deroy v. Estate of Baron, 136 Conn. App. 123, 43 A.2d 759 (2012)   

 

Defendant Jeanne Baron appealed from the judgments of the Superior Court denying the admission of a will executed by her mother, Edith Baron, because of lack of capacity.  The Probate Court originally received two documents purporting to be the decedent’s will, one executed on February 12, 2002 and the other on July 3, 2002.   The will executed on July 3, 2002 was admitted by the Probate Court.  On appeal, the Superior Court concluded that Edith Baron was “incompetent” when she executed the will on July 3, 2002.

In reviewing the Superior Court decision, the Appellate Court found that the incorrect standard was applied for testamentary capacity.  The standard does not require the testator to be able to understand “complex” financial transactions.  Rather, the mental capacity necessary to make a will under Connecticut law is a lower standard.  An individual may have the capacity to make a will even if they are generally incapable of business transactions.  “To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it.” (Internal quotation marks omitted)  Sanzo’s Appeal from Probate, 133 Conn. App. 42, 50, 35 A. 3d 203 (2012); see also Atchison v. Lewis, 131 Conn. 218, 219-20, 38 A.2d 673 (1944).  The Appellate Court reversed the judgment of the Superior Court and the case was remanded for further proceedings.         

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Connecticut Appellate Court finds that Executor did have authority to bring a Summary Process Action on behalf of an Estate

Connecticut Appellate Court finds that Executor did have authority to bring a Summary Process Action on behalf of an Estate

Scott v. Heinonen, 118 Conn. App. 577, 985 A.2d 358 (2009) 

 

The plaintiff, Arthur E. Scott, Jr., executor of the Estate of Barbara H. Scott (the “Estate), brought a summary process action to evict the defendant, Mark M. Heinonen, who resided on certain real property that was owned by the decedent.  The property was specifically devised to the defendant and his brother in the decedent’s will.  However, the plaintiff sought to evict the defendant pursuant to Conn. Gen. Stat. § 47a-26d in order to market the property for sale and satisfy the Estate’s financial obligations.  The Superior Court ruled against the plaintiff and concluded that he lacked the power to evict without a contract of sale or a further order of the Probate Court.  Judgment of possession was entered in favor of the defendant.

On appeal, the plaintiff argued that the Superior Court incorrectly found he did not have the authority to evict the defendant.  The plaintiff claimed he was authorized by the Probate Court to market the property for sale.  The Appellate Court found that the plaintiff did have the power to bring the summary process action in his role as the fiduciary and legal representative of the Estate.  The Estate held title to the property pursuant to Conn. Gen. Stat. § 45a-321 and the Probate Court properly ordered the plaintiff to satisfy debts against the estate by selling the property pursuant to Conn. Gen. Stat. § 45a-428(a).  Therefore, the judgment of the Superior Court was reversed and the case was remanded so that judgment could be entered in favor of the plaintiff.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Connecticut Appellate Court affirms Judgment awarding the Plaintiff damages and imposing a Constructive Trust on assets previously held jointly by the Defendant and the Decedent

Connecticut Appellate Court affirms Judgment awarding the Plaintiff damages and imposing a Constructive Trust on assets previously held jointly by the Defendant and the Decedent

 

Garrigus v. Viargengo, 112 Conn. App. 655, 963 A.2d 1065 (2009)

 

The plaintiff, an administrator of the Estate of Stella Jankowski (the “Estate”), was awarded damages in the amount of $496,070 and a constructive trust on certificates of deposit, bank accounts and savings bonds that the defendant had held jointly with the decedent.  The Waterbury Superior Court entered judgment in favor of the plaintiff.  On appeal, the defendant claimed that the plaintiff did not meet the burden of proof as to the fraud claim and did not satisfy the elements required for a constructive trust to be imposed.

The Appellate Court found that the plaintiff proved fraud by clear and convincing evidence and that the imposition of a constructive trust was appropriate.  The decedent intended for her assets to be distributed equally to her ten nieces, nephews and cousins. The defendant, one of the nieces, did not tell the decedent that the certificates of deposit, bank accounts and savings bonds would not pass to the other relatives when the defendant assisted with adding herself as joint owner of the assets.  Therefore, the plaintiff overcame and rebutted the presumption under Conn. Gen. Stat. § 36a-290 and 31 C.F.R. § 353.70 that the decedent intended for the jointly-held assets to go to the defendant.  As a result, the Superior Court’s judgment was affirmed by the Appellate Court.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Connecticut Appellate Court finds that Fiduciary should not have been removed as Executrix for Estate

Connecticut Appellate Court finds that Fiduciary should not have been removed as Executrix for Estate  

Saccu’s Appeal from Probate, 97 Conn. App. 710, 905 A.2d 1285 (2006)  

The plaintiff and executrix, Jane Saccu, originally filed accountings with the Probate Court confirming that she utilized estate funds to make repairs to and pay property taxes for real property left to her by the decedent, her father, as a life estate.  The defendant and decedent’s son, Richard Barreta, objected to the accountings and sought to remove the executrix as a fiduciary for the Estate of Gicomo Barretta (the “Estate”).  The plaintiff was removed from her duties as executrix and compelled to reimburse the Estate pursuant to a Probate Court order.  The Probate Court found that the plaintiff had breached her fiduciary obligation when she utilized the estate funds for repairs and taxes. The plaintiff appealed the Probate Court order but the Superior Court entered judgment in favor of the defendant and dismissed the appeal.    

On appeal to the Appellate Court, the plaintiff claimed that her removal as executrix was an abuse of discretion because there was no finding that she posed a continuing risk to the Estate if she continued in her duties as fiduciary.  The Appellate Court agreed and found, pursuant to Conn. Gen. Stat. § 45a-242, that the Plaintiff should not have been removed as the executrix because the specific finding had not been made.  The case was remanded with instructions to have the executrix reinstated and the judgment was reversed in part. 

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.