Posts tagged with "Probate"

Connecticut Superior Court Denies Prejudgment Remedy and Declines to Impose a Constructive Trust

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Marinelli v. Estate of Marinelli, 2011 Conn. Super. LEXIS 1857 (2011)

The plaintiff, Michael Marinelli, brought an action against Joanne Marinelli, the executrix of the Estate of Anthony V. Marinelli, Jr. (the “Estate”) and the trustee of the Anthony V. Marinelli, Jr. Revocable Trust (the “Trust”).  The decedent, Anthony V. Marineeli, Jr., fraudulently induced the plaintiff, his brother, to believe that he would receive a 50% ownership interest in real property according to the plaintiff.  A family car repair business was operated on the real property in question and the plaintiff sought to impose a constructive trust.  The plaintiff filed an application for a prejudgment remedy against the Estate and the Trust pursuant to Conn. Gen. Stat. § 52-278d.

The Court held a hearing on the application and found there was an absence of probable cause to believe the plaintiff would prevail.   The plaintiff’s father clearly transferred title of the real property to the decedent who maintained the car repair business and assumed liability for all of its debts.  The evidence presented indicated that the plaintiff voluntarily relinquished his interest in the car repair business.  The apparent representations by his father and brother indicating that the plaintiff would be “taken care of” were imprecise assurances that did not persuade the Court.   There was no evidence of wrongdoing engaged in by the decedent. As a result, the plaintiff’s application for a prejudgment remedy was denied.

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Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Joseph C. Maya, managing partner at Maya Murphy, P.C. in Westport, Connecticut, by telephone at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Trustee Interpretation of Ambiguous Trust Provisions will not be Changed by a Court Without Evidence of a Clear Abuse of Trustee Discretion

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Heath v. Heath, CV094044709S, 2012 WL 2477953 (Conn. Super. Ct. June 5, 2012)

In a case before the Superior Court, four trust beneficiaries filed a three-part complaint against the trustees of a trust created by their mother.  The complaint alleged breach of fiduciary duty, unjust enrichment, and other charges. The trial court ruled that the trustees had properly distributed the trust interests and entered judgment in their favor.

Case Background

In 1953, a trust indenture known as the Hembdt Trust was drafted with assets consisting of royalty interests in oil, gas and mineral rights.  During her lifetime, the settlor and beneficiary of this trust (“the decedent”) married and had ten children.  Upon her death, the terms of the trust provided that the royalty interests would pass to “his or her legal representatives, heirs at law or next of kin in accordance with the provisions of law applicable to the domicile of the deceased beneficiary.”

In 1967, the decedent died. Pursuant to her will, several testamentary trusts were created, including a testamentary trust for the benefit of her husband (“marital trust”) and a trust for her children (“children’s trust”).  The trustees and executors of the decedent’s will determined that the provision in the Hembdt Trust required the trust’s royalty interests to pass into her estate which, in accordance with her will, resulted in these interests being distributed in a 54/46 ratio between the marital trust and the children’s trust.

Legal Representatives of a Trust

The beneficiaries of the children’s trust argued that the entirety of the royalty interest should have been distributed to them as the decedent’s heirs at law because the term “legal representatives” in the Hembdt Trust provision, used under the circumstances provided, could only be interpreted to mean the children of the decedent.  The decedent’s husband, in his capacity as a fiduciary of the trusts, argued that the beneficiaries’ interpretation was inconsistent with the language of the trust instrument and the law.

He argued that the term “legal representatives” was used in conjunction with “heirs at law” and “next of kin;” therefore, the clear intent of the Hembdt Trust provision was that upon the death of the individual beneficiary, his or her interest would pass to: (1) the beneficiary’s legal representatives, which would be the beneficiary’s executors, if the person died testate, to be administered according to the beneficiary’s will, or the beneficiary’s administrators, if the person died intestate and a probate estate was opened; (2) the beneficiary’ heirs at law if the person died intestate and no probate estate was opened; and (3) the beneficiary’s next of kin if there were no heirs at law.

The decedent’s husband further argued that if all three conditions existed, then the distributions would have to be in accordance with Connecticut law, which requires that, when a decedent leaves both a spouse and children, they both inherit.  Finally, the decedent’s husband argued that Connecticut law requires that if a decedent leaves a will, a distribution is made according to the will.   Conn. Gen. Stat. § 45a-431.  The remaining trustees adopted the arguments of the decedent’s husband.

The Language of a Trust Instrument

According to Connecticut case law, a court’s role in the construction of a trust instrument is to determine the meaning of what the grantor stated in the trust instrument and not to speculate upon what the grantor intended to state in the instrument. Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961).  Language in the trust instrument is to be accorded its common, natural and ordinary meaning and usage.  WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn.App. 605, 609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008) (internal quotation marks omitted).

Furthermore, no language will be construed as to remove a trustee from equitable control; courts may intervene only to protect and preserve the trust in circumstances where the trustees have abused their discretion.  Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 34, 347 A.2d 81 (1974)

The Court’s Decision

Connecticut case law has established that the phrase “legal representatives” in a testamentary instrument is an ambiguous or equivocal term. Smith v. Groton, 147 Conn. 272, 274–75, 160 A.2d 262 (1960).   In interpreting the trust provisions, the court determined that the language did not permit the decedent’s beneficial interest to pass to each of the three categories (“legal representatives, heirs at law and next of kin”) or to pass to different recipients depending on an exercise of discretion (“legal representatives, or heirs at law, or next of kin”).

For that reason, the court found that the terms “legal representatives,” “heirs at law,” and “next of kin” did not conflict and that the provision required that the decedent’s beneficial interest pass to the recipients in the order clearly listed the trust instrument.  Therefore, the trustees did not abuse their discretion in determining that the royalty interests passed to the executors, as the decedent’s legal representatives, to be distributed to the marital trust and children’s trust in accordance with the decedent’s will.

Because the trial court did not find that the trustees of the decedent’s trusts abused their discretion, the court refused to upset their determination of how the decedent’s interests should be distributed.

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Should you have any questions relating to wills, trusts, estates and other personal asset protection issues, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Assets Protected From Creditors in Connecticut

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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.

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If you have any questions regarding asset protection in Connecticut, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Estate Planning for Single Individuals

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For single individuals without children and without any future plans to have children, it is still vitally important to formulate an estate plan in the event of untimely death.  A single person, of course, possesses assets, possessions, money, accounts, etc., and an estate plan allows for all of those assets to be distributed to the person, persons, charities, or organizations of the decedent’s choosing.

Asset Distribution Without a Will

Without a will, an individual’s possessions and assets will be distributed to relatives and family members of the decedent in accordance with a preset order determined by law.  This, however, is predetermined and may not be the order in which the deceased may have wanted his or her assets to be distributed.  Furthermore, without a will, the deceased’s family might have to expend a lot of money navigating the waters of the administrative proceedings associated with intestacy.  Intestacy is the term for what happens when a person dies without a will.

Under Connecticut law, where a person dies without any children and without a will, the estate will be distributed in accordance with the following order: first a portion will go to the decedent’s husband or wife, if any; next, to the parent or parents of the deceased; if there is no parent, the estate will go to the siblings of the deceased and those who legally represent them.  If the deceased has no surviving parents or siblings, the “residue of the estate shall be distributed equally to the next of kin in equal degree.”[1] Those “next of kin” may be relatives you have never met or heard of or met, but who by law could be entitled to a share of your estate in the event of death.

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It is important to consult with an attorney who is experienced in estate planning law.  Should you have any questions relating to your estate planning, do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

 

[1] Conn. Gen. Stat. §45a-439.

What is a Pre-Need Funeral Services Contract?

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A pre-need funeral services contract allows an individual to set aside funds, before his or her death, to be used specifically to pay for funeral expenses. Under the terms of such a contract, a “purchaser” signs the contract and advances funds, which are held in an escrow account for the purpose of paying for future funeral services for the “beneficiary” upon his or her demise. See C.G.S. §42-202. A pre-need funeral services contract may only be sold by a funeral director licensed by the public health commissioner. See C.G.S. §42-201.

Funeral Service Requirements Under Connecticut Law

There are strict requirements for such contracts under Connecticut law. For example, funeral services contracts must be in writing, and must contain the following:

(1) The name, address, telephone number and Social Security number of the beneficiary and the purchaser;

(2) The name, address, telephone number and license number of the funeral director for the funeral service establishment providing the goods or services;

(3) A list of the selected goods or services, if any;

(4) The amount of funds paid or to be paid by the purchaser for such contract, the method of payment and a description of how such funds will be invested and how such investments are limited to those authorized pursuant to subsection (c) of section 42-202;

(5) A description of any price guarantees by the funeral service establishment or, if there are no such guarantees, a specific statement that the contract contains no guarantees on the price of the goods or services contained in the contract;

(6) The name and address of the escrow agent designated to hold the prepaid funeral services funds;

(7) A written representation, in clear and conspicuous type, that the purchaser should receive a notice from the escrow agent acknowledging receipt of the initial deposit not later than twenty-five days after receipt of such deposit by a licensed funeral director;

(8) A description of any fees to be paid from the escrow account to the escrow agent or any third party provider;

(9) A description of the ability of the purchaser or the beneficiary to cancel a revocable funeral service contract and the effect of cancelling such contract;

(10) For irrevocable contracts, a description of the ability of the beneficiary to transfer such contract to another funeral home; and

(11) The signature of the purchaser or authorized representative and the licensed funeral director of the funeral service establishment.

Funeral Service Contracts

See C.G.S. §42-200(b). A funeral services contract must also contain a statement that if the particular merchandise provided for in the contract is not available at the time of death, the funeral service establishment will furnish merchandise similar in style and at least equal in quality of material and workmanship to the merchandise provided for in the contract.  See C.G.S. §42-202(g). Funeral services contracts should not be confused with burial insurance policies, which are separately codified in the Connecticut General Statutes, under Section 38a-464.

For further information on pre-need funeral services contracts in Connecticut, see Chapter 743C of the Connecticut General Statutes. The General Statutes can be found online at: http://www.cga.ct.gov/. Additional information is available in the State of Connecticut’s Office of Legal Research Report on pre-need funeral services contracts online at: http://www.cga.ct.gov/2007/rpt/2007-R-0578.htm.

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If you have any questions regarding funeral services contracts, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Probate Courts Hearing a Conservator’s Application to Transfer Income from a Conserved Person’s Estate Must Provide Notice to All Parties Who May Have an Interest in the Estate

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Manzo v. Nugent, X04HHDCV105035142S, 2012 WL 1959076 (Conn. Super. Ct. May 8, 2012)

In a case before the Superior Court of Connecticut, a named beneficiary of a will filed an appeal to reverse a probate court order that authorized the conservator of his benefactor to transfer all her assets into trusts.  The conservator brought a motion to dismiss the appeal based on lack of standing.  The court held that the named beneficiary had standing to file his appeal and denied the motion to dismiss.

Case Details

In January 2008, the probate court appointed John Nugent (“Nugent”) as the conservator of the person and the estate of Josephine Smoron.  In April 2009, the Nugent applied to the probate court to approve the creation and funding of a revocable trust and an irrevocable trust for Ms. Smoron.  At the time of the May 2009 probate court hearing, Samuel Manzo (“Manzo”) was a named beneficiary under Ms. Smoron’s will.

The probate court approved Nugent’s application and authorized the creation and funding of the two trusts; however, the hearing was held without providing notice to Manzo or other named beneficiaries of Ms. Smoron’s will.  Nugent, in his capacity as conservator, established and funded the trusts by quitclaiming real property owned by Ms. Smoron to the irrevocable trust and by depositing over $218,000 of her assets to the revocable trust.  Pursuant to the terms of the trusts, upon Ms. Smoron’s death, the proceeds were to be distributed to three churches, with no provisions for the beneficiaries named under will.  In June 2009, Ms. Smoron died.

Interest in an Estate

Nugent argued that Manzo’s appeal of the probate orders authorizing the creation and funding of Ms. Smoron’s trusts must be dismissed because Manzo was a “mere prospective heir” under Ms. Smoron’s will and, therefore, lacked a sufficient legal interest to challenge the rulings of the probate court.  However, in the instant case, the Superior Court found it to be a provable fact that Manzo was a beneficiary of Ms. Smoron’s will rather than a prospective heir.

Connecticut law specifically requires the probate court to hold a hearing and provide notice to “all parties who may have an interest” in the estate before authorizing a conservator to transfer his conserved person’s property.  Conn. Gen. Stat. § 45a-655(e).  The same law further provides that the probate court should also consider the provisions of an existing estate plan before authorizing the conservator to make transfers of income or principal from the estate of the conserved person.

The Superior Court found that, as a named beneficiary under Ms. Smoron’s will at the time of the May 2009 order, Manzo had both an interest in the estate and an interest in ensuring that the probate court considered Ms. Smoron’s will as part of the existing estate plan.  Therefore, Manzo should have received notice of the probate court hearing.

The Court’s Decision

Therefore, the Superior Court held that, as a named beneficiary under the will, Manzo was aggrieved by the May 2009 probate court order, should it be permitted to stand. Pursuant to that order, Nugent not only placed Ms. Smoron’s assets in the trusts, but he also designated three churches as beneficiaries of the trusts upon Ms. Smoron’s death. The court characterized these actions as effectively disinheriting Manzo and nullifying any provisions that had been made for him under Ms. Smoron’s will.  Based these facts, the trial court determined that Manzo was a proper party to invoke the jurisdiction of the court.

The Superior Court denied Nugent’s motion to dismiss and permitted Manzo to go forward in the Superior Court of Connecticut with his appeal of the probate court orders authorizing the creation and funding of trusts for Ms. Smoron’s estate.

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Should you have any questions relating to wills, trusts, estate planning or other personal asset protection issues, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Connecticut Appellate Court Finds That a Creditor is Allowed to Conduct Discovery Pursuant to a Probate Court Order

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In re Probate Appeal of Cadle Co., 129 Conn. App. 814; 21 A.3d 572 (2011)

The executors of the Estate of F. Francis D’Addario (the “Estate”) filed an interim accounting with the Probate Court for the District of Trumbull.  The Probate Court then allowed the Cadle Company (“Cadle”), an unsecured creditor of the Estate, to conduct discovery in reference to the management of the Estate’s assets and the concerns it had regarding the accuracy of the accounting.

Both the executors and Cadle appealed the discovery order and the Superior Court affirmed the order permitting discovery but remanding to the Probate Court.  The Superior Court found that the scope of discovery ordered by the Probate Court was beyond its jurisdiction.  Cadle appealed the Superior Court ruling.

On appeal, the Appellate Court decided the issue of whether the Probate Court had jurisdiction to allow a creditor to conduct discovery into the business judgment and operations engaged in by executors in managing estate assets.

The Appellate Court found that the Probate Court had the power, under Conn. Gen. Stat. §45a-175(g), to order broad discovery in an accounting proceeding.  This power coincided with the same power that the Superior Court would have in a case involving a challenge to such accounting.  Therefore, the Appellate Court reversed and remanded to the Superior Court to reinstate the original Probate Court discovery order.

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

Connecticut Appellate Court Finds That Executor Did Have Authority to Bring a Summary Process Action on Behalf of an Estate

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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.

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

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

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

In a 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.

Revoking a Will in Connecticut

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.)

Validity of a Will in Connecticut

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.

Unsigned Copy of the Will

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.

The Court’s Decision

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.

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Should you have any questions relating to wills, estates and other personal asset protection issues, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Connecticut Appellate Court Finds That Misappropriated Funds Should Not Be Part of Probate Estate

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Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendant, 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 Court’s Decision

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.

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Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney 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.