By Jeffrey A. Cooper [*] and John R. Ivimey [**]
This Article provides a summary of selected 2021 case law affecting Connecticut estate planning and probate practice.
A. Wills and Trusts
1. Scrivener's Error
In Giglio v. Robinson, [1] the superior court corrected a scrivener's error in a will. The case marks a rare, and potentially important, application of the Supreme Court's 1998 holding in Erickson v. Erickson.[2]
The case involved a decedent who wished to revise his will to leave his farm to his son, subject to his wife's life estate in the residence located thereon.[3] His attorney drafted a will that did not clearly reflect these wishes, including contradictory provisions that alternatively gave a life estate in the property to his wife and a fee simple to his son.[4] The probate court reformed the will, and a de novo appeal ensued.[5]
The superior court began its analysis of the case with the statement that a will is typically interpreted based on language of the will itself—the so-called "four corners" of the document—without looking to extrinsic evidence of the testator's intent.[6] The court then noted a well-established exception to this general rule whereby extrinsic evidence may be considered to clarify ambiguous language.[7] The court applied this exception in the present case and found that ample evidence showed the nature of the ambiguity and revealed the decedent's true intent.[8]
Although the court's ambiguity analysis had redressed the plaintiffs concerns, the court went one step further, citing Erickson, for the further proposition that a will, whether ambiguous or not, may be reformed when a party presents clear and convincing evidence of a scrivener's error that has frustrated the testator's intent.[9] Applying that rule to this case, the court found such evidence existed, and thus the scrivener's error provided an independent basis for reforming the will.[10] It is on this final ground that the case is particularly noteworthy. Ericksons holding that a scrivener's error can be corrected has been called a "cutting-edge decision"[11] which significantly deviated from the traditionally strict rules governing reformation.[12] Yet, Erickson previously seems to have had relatively little impact on Connecticut's case law.[13] The superior court's extensive reliance on Erickson in this case may serve to shine new light on that landmark opinion, and may lead to more frequent, and more straightforward, reformation of scrivener's errors in wills.
2. Validity of Unfunded Trust
In Benjamin v. Corasaniti, [14] the Supreme Court upheld the validity of an exercise of a power of appointment in favor of a previously unfunded trust. In reaching this conclusion, the Court upheld an opinion of the superior court discussed in last year's update.[15]
The decedent was the beneficiary of two trusts and held a testamentary power of appointment over the trust corpus.[16] In his will, he exercised his power of appointment in favor of a charitable trust he had created during his life, but never funded.[17] The plaintiffs contended that the exercise of the power of appointment in favor of the charitable trust was invalid since the trust had not been funded during the decedent's life.[18] The probate court and superior court found the exercise valid.[19] On appeal, the Supreme Court affirmed.[20]
In its relatively brief opinion, the Supreme Court held that under common law principles a trust can be created by the valid exercise of a power of appointment.[21] The Court further held that Connecticut's recently-enacted version of the Uniform Trust Code makes this rule explicit, stating that "[a] trust may be created by . . . exercise of a power of appointment ... in favor of a trustee . . .,"[22]
3. Equitable Divorce
In Mongillo v. Butteiger, [23] the superior court held that a plaintiff was equitably estopped from claiming an intestate share of a decedent's estate even though their foreign divorce was technically not valid.
The decedent and the plaintiff married in 1962.[24] Four years later, the decedent went to Mexico to obtain a divorce.[25] Subsequently, the plaintiff moved out of the decedent's home, threw her wedding ring in a river, represented herself as single on her application for citizenship, and remarried in 1973.[26] When the decedent died intestate decades later, the plaintiff claimed an intestate share of his estate as his surviving spouse, arguing that the foreign divorce decree was invalid under Connecticut law.[27] The probate court denied her claim and an appeal ensued.[28]
The superior court affirmed.[29] The court agreed that Connecticut law is clear that the parties' Mexican divorce was invalid as a matter of state law since neither party lived in Mexico at the time that divorce was obtained.[30] However, the court held that Connecticut has adopted the doctrine of practical recognition of a foreign divorce decree, whereby an invalid foreign divorce will be recognized where "under the circumstances, it would be inequitable not to do so."[31] Applying that doctrine to this case, the court found that the plaintiffs 40-year history of treating the Mexican divorce as valid precluded her for renouncing it for purposes of inheritance.[32]
While the court's decision does not seem controversial given the facts of the case, it does tie into a far larger question of whether, and when, an individual can be treated as a spouse, former spouse, or child as a matter of equity even in cases where the individual would not meet that definition as a matter of law. For example, some courts have recognized the concept of equitable adoption to allow an individual to take an intestate share as a child of the decedent even when that "child" was not formally adopted.[33] In a different context, Connecticut statutes provide that a spouse is not entitled to either an intestate share or elective share of her spouse's estate if she willfully abandoned that spouse.[34] Other states have taken that concept further and denied a spousal right to those who committed abuse or adultery.[35] While there is no indication the case at bar was an attempt to expand Connecticut law in these disparate areas, readers should consider whether future litigants might seek to do just that by asking a court to apply the equitable considerations which governed this case in other areas of probate law.
B. Probate Litigation
1. Undue Influence
In Holloway v. Carvalho, [36] the Appellate Court considered which party properly bore the burden of proof in an action alleging undue influence. The Court ruled that the party alleging undue influence bore the burden of proof, as the burden of proof shifts to the alleged influencer only in extremely limited circumstances.[37]
The case concerned a decedent's will that left his entire estate to his surviving daughter, the defendant, and nothing to the plaintiff, the only child of the decedent's predeceased daughter.[38] The defendant was the decedent's attorney-in-fact, primary caretaker, and financial advisor.[39] After the will was admitted to probate, the plaintiff appealed, alleging inter alia that the defendant had unduly influenced the testator and that the defendant bore the burden of proof on the issue of undue influence.[40] The superior court held that there was clear and convincing evidence that the defendant had not unduly influenced the decedent and thus did not need to rule on the question of which party bore the burden of proof.[41] An appeal to the Appellate Court ensued.[42]
As a general rule, a party alleging undue influence has the burden of proving their allegation.[43] However, the burden of proof shifts when the party accused of undue influence was in a confidential relationship with the testator and suspicious circumstances raise the specter of undue influence.[44] The Connecticut rule on the issue is set forth in the Connecticut Supreme Court's 1908 opinion In re Lockwood, which provides that the burden of proof shifts to the alleged influencer only when three conditions are met, viz (1) the alleged influencer was in a fiduciary relationship with the testator, (2) the will favors the fiduciary, and (3) the fiduciary is a stranger who supplants the natural objects of the testator's bounty.[45] In applying the Lockwood test to the facts at bar, the Appellate Court made clear that this exception is an extremely narrow one.[46]
Two aspects of the Court's analysis are worthy of note. First, the Court adopted a rather restrictive view of who is in a "fiduciary relationship" with the testator. Quoting the 1960 Supreme Court opinion in Berkowitz v. Berkowitz, the Court noted that there is no presumption of undue influence merely because the "legatee enjoys the trust and confidence of the testator."[47] Rather, the burden of proof shifts "only where the beneficiary is ... a religious, professional or business adviser, or a position clearly analogous thereto . . .,"[48] The Court held that the fact that the defendant was the decedent's attorney-in-fact, and served as his primary caregiver and personal manager at the time of his death, did not rise to the level required.[49] Other authorities have taken a contrary view, finding that an attorney-in-fact is in a fiduciary relationship with her principal.[50]
Second, the Court applied the Lockwood holding that even if a fiduciary relationship is found, the burden of proof cannot be shifted where the alleged influencer is a member of the decedent's family.[51] Again quoting from Berkowitz, the Court reasoned that a child in particular can never be presumed to be an undue influencer as "[i]t is the child's privilege to anticipate some share of the parent's estate" and to "use all fair and honest methods to secure his parent's confidence and obtain a share of his...
