Opinion
CV166060963S
01-26-2017
Judy Markowitz et al. v. Judy Villa
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#115)
Robin L. Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiffs, Judy Markowitz and Gyorgy Emil Sallay (plaintiffs) commenced this action against the defendant, Judy Villa (defendant), by service of writ, summons and complaint. The return date is April 5, 2016, and the case was returned to court on March 11, 2016. In response to a request to revise, the plaintiffs filed a revised complaint on September 23, 2016, which is the operative complaint and alleges the following facts.
The plaintiffs are the beneficiaries under the will of Agnes Moriber who died on April 21, 2015 (decedent). The defendant is also a beneficiary under the will of the decedent. At the time of her death, the decedent was a resident of Stratford, Connecticut and her estate is being probated in the Stratford Probate Court. The will of the decedent provides that her estate was to be divided 30% to each of the plaintiffs, 30% to the defendant and 10% to Karol Alexander. At some time prior to the decedent's death, the defendant arranged for the decedent to transfer certain of her bank accounts from simple savings accounts into brokerage accounts which named the defendant as the beneficiary. The defendant also convinced the decedent to name her as beneficiary on certain other bank accounts owned by the decedent. This was accomplished through contacts by the defendant, her husband, Frank Villa and her son. The defendant's husband, Frank Villa handled the decedent's finances and had access to all of her financial information, including her accounts. According to the complaint, upon information and belief, this all occurred on or before August 26, 2013, and thereafter prior to the decedent's death in April 2015.
By arranging for the decedent to transfer certain of her bank accounts from simple savings accounts into brokerage accounts which named the defendant as the beneficiary, and convincing the decedent to name the defendant as beneficiary on certain other bank accounts owned by the decedent, the defendant received a disproportionate share of the decedent's estate in that she has received $209, 144.11 which represents approximately 64% of the estate rather than 30% as provided for under the decedent's will.
The defendant also persuaded the decedent to transfer assets from simple savings accounts to brokerage accounts through her son at Edward Jones Financial by which the accounts were charged fees by Edward Jones which resulted in the diminution of the gross estate available for distribution. This was accomplished through the contacts by the defendant, her husband and her son. Additionally, by placing the accounts at Edward Jones the monies in the accounts were subject to market risk to the damage and loss of the plaintiffs. When the decedent met with her attorney to prepare her will, the existence and the amount of money contained in the accounts on which the defendant was a beneficiary of the decedent, was not made known to the decedent's attorney so that he could advise her that the accounts as structured would not pass in accordance with her estate plan but would go to the defendant outright at the decedent's death.
The defendant accomplished the foregoing by exercising undue influence on the decedent by herself and through other family members in that the decedent's desires for the disposition of her assets as set forth in her will was effectively overcome. As a result of the defendant's undue influence, the plaintiffs have been damaged in that they have not and will not receive their rightful share of the decedent's estate pursuant to the will. Count one alleges undue influence; count two alleges unjust enrichment; count three alleges tortious interference with the plaintiffs' expectation of inheritance; count four alleges conversion and count five alleges statutory theft.
The defendant filed a motion to strike all five counts of the complaint and a memorandum in support on the following grounds. The defendant moves to strike the claim of undue influence on grounds that the claim is legally insufficient because the plaintiffs fail to allege all of the elements to support a claim for undue influence, and because the claim is more appropriately raised in a contested Probate Court matter as a will contest. The defendant moves to strike the claim for unjust enrichment on grounds that the claim is legally insufficient and solely based on the claim of undue influence; that the plaintiffs cannot allege that they somehow conferred a benefit upon the defendant; and the plaintiffs have failed to allege facts in support of their allegations of unjust enrichment.
The defendant moves to strike the claim for tortious interference with an inheritance expectancy on grounds that Connecticut appellate courts have not recognized this claim as a cause of action and that, even if it were recognized, the claim fails because the plaintiffs have failed to allege sufficient facts to support the claim. The defendant moves to strike the claims for conversion and statutory theft on grounds that the plaintiffs have failed to allege the requisite elements for both causes of action.
The plaintiffs filed an objection and a memorandum in support. The plaintiffs argue that they have sufficiently pled the express and implied allegations against the defendant in their revised complaint in order to legally support all five counts contained therein.
The motion was heard at short calendar on January 23, 2017.
II
DISCUSSION
A
Standard of Review
The principles of law governing this court's review of the defendant's motion to strike are well established. " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see also Practice Book § 10-39(a)(1). " A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . In doing so, moreover, [the court] read[s] the allegations broadly . . . rather than narrowly." Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010). Finally, " [a] motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, 51 Conn.Supp. 11, 16, 976 A.2d 819 (2007). " Sometimes legal questions require a factual setting within which to be decided. Just because we have a pleading device called a motion to strike it [should not] be regarded as a straightjacket preventing a proper testing of new legal theories." (Citation omitted; internal quotation marks omitted.) Prada v. Bova, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6014139-S (January 30, 2013, Adams, J.T.R.) [55 Conn.L.Rptr. 451, ].
B
Count One--Undue Influence
The defendant moves to strike the first count of the plaintiffs' complaint which purports to allege a cause of action for undue influence. The defendant argues that count one fails to state a claim for undue influence because the plaintiffs merely state legal conclusions and have not alleged facts sufficient to satisfy the elements of undue influence. " Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his [or her] free agency and constrain him [or her] to do something other than he [or she] would do under normal control . . . It is stated generally that there are four elements 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 . . . Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he [or she] had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his [or her] predisposition to make the transfer in question, the extent of the transfer in relation to his [or her] whole worth . . . failure to provide for all of his [or her] children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." (Internal quotation marks omitted.) Tyler v. Tyler, 151 Conn.App. 98, 105-06, 93 A.3d 1179 (2014); see also Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).
" Undue influence must be proven by clear and convincing evidence. Proof of a plan, design, or disposition to gain control and influence testamentary provisions generally may be used . . . The courts have held that direct and positive proof is not needed to prove undue influence. Circumstantial proof such as family relations, the testator's physical and mental condition and dependence upon others can be used. The contesting party has the burden of laying a foundation of such material facts as fairly and convincingly lead to a conclusion of undue influence. There must be proof not only of undue influence but also that its operative effect was to cause the testator to make a [w]ill which did not express actual testamentary desires. The contesting party must lay down a factual foundation that, but for the actions of the party claiming under the [w]ill, the testator would have made a different disposition." (Footnotes omitted.) R. Folsom, Probate Litigation in Connecticut (2d Ed. 2015) § 1:15, pp. 1-31 through 1-33.
" Undue influence focuses on the mind of the testator at the time of execution of the will and the defendant's control or power over the testator, irrespective of whether the defendant's conduct is tortious. Interference with an expected inheritance, however, focuses on the defendant's knowledge of an expected inheritance and independent tortious conduct involving the beneficiary's inheritance." Hart v. Hart, Superior Court, judicial district of Windham at Putnam, Docket No. WWMCV-14-6007918-S (May 11, 2015, Calmar, J.) [60 Conn.L.Rptr. 399, ].
In count one, the plaintiffs allege that " [a]t some point prior to the death of [the decedent], the defendant arranged for the decedent to transfer certain of her bank accounts from simple savings accounts into brokerage accounts naming the defendant as beneficiary. She also convinced the decedent to name [the defendant] as beneficiary on certain other bank accounts owned by the decedent. This was accomplished through contacts by the [d]efendant, her husband Frank and her son. Frank Villa handled [the decedent's] finances and had access to all of her financial information including her accounts . . . This occurred before August 26, 2013, and thereafter prior to her death . . . By doing so, the defendant . . . received a disproportionate share of [the decedent's] [e]state . . . The defendant persuaded the decedent to transfer assets from simple savings accounts to brokerage accounts through her son . . . This was accomplished through contacts by the defendant, her husband and her son . . . [and] occurred on or before August 26, 2013 and thereafter prior to her death . . . The defendant accomplished the foregoing by exercising undue influence on the decedent by herself and through other family members in that [the decedent's] desire for the disposition of her assets as set forth in her will was effectively overcome. As a result of the defendant's undue influence the plaintiffs have been damaged in that they have not and will not receive their rightful share of the decedent's estate as per her will." Pl. Rev. Compl., count one, ¶ ¶ 1-11.
The plaintiffs' allegations do not sufficiently allege a claim for undue influence. Here, the plaintiffs allege conclusory statements that the defendant exerted undue influence upon the decedent and convinced the decedent to name the defendant as the beneficiary on certain other bank accounts owned by the decedent. The plaintiffs do not however, sufficiently allege that the decedent was an individual that was subject to influence. In other words, what subjected the decedent to influence; was it her age and/or physical and/or mental condition? The plaintiffs also fail to sufficiently allege that the defendant had an opportunity to exert influence over the decedent or the disposition to exert influence over the decedent. Although the plaintiffs allege that the defendant's husband and son handled the decedent's finances, how did such give the defendant the opportunity to exert influence over the decedent or the disposition to exert influence over her? The plaintiffs also fail to allege facts which would satisfy the element requiring a result that indicates undue influence. In other words, theplaintiff must allege facts which, if proven, would show that the decedent would not have changed the beneficiary to the defendant but for her exercise of undue influence. See Reynolds v. Molitor, 184 Conn. 526, 528, 440 A.2d 192 (1981). The fact that the decedent's finances were handled by the defendant's husband and her son and that she chose to name the defendant as beneficiary over the plaintiffs does not constitute such a constraint of her free will so as to amount to undue influence. Id., see also, Debus v. Comp, Superior Court, judicial district of Middlesex, Docket No. MMXCV-106002356-S, (March 9, 2011, Wiese, J.).
In addition, a close review of the allegations suggests that the decedent made the changes to the bank account to name the defendant as a beneficiary prior to the execution of her will. The plaintiffs allege that the will was divided 30% to each of the plaintiffs; 30% to the defendant and 10% to Karol Alexandra. The plaintiffs then allege in paragraph nine of count one that the decedent met with her attorney to prepare her will and did not notify him of these accounts of which the defendant was a beneficiary so that he could advise the decedent that the accounts as structured would not pass in accordance with her estate plan but would go to the defendant outright on the decedent's death. These allegations are inconsistent with the plaintiffs' allegation that they will not receive their rightful share of the decedent's estate as per the will, because the changes to the savings account were made prior to the execution of the will.
Accordingly, the plaintiffs have failed to plead facts sufficient to state a claim for undue influence and therefore the defendant's motion to strike count one is granted.
C
Count Two--Unjust Enrichment
The defendant moves to strike count two of the complaint which alleges unjust enrichment on grounds that the plaintiff is merely restating their claim for undue influence and then additionally allege that they received a disproportionate share of the decedent's estate than they would have received had the accounts remained in the name of the decedent without naming the defendant as beneficiary. The defendant argues that these allegations are insufficient to support a claim for unjust enrichment.
" Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable; it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . [A] [plaintiff] seeking recovery for unjust enrichment must prove (1) that the [defendant] [was] benefitted, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
The case of Moore v. Brower, Superior Court, judicial district of Waterbury, Docket No., X10-UWY-054010227 (June 14, 2006, Munro, J.) [41 Conn.L.Rptr. 681, ], is instructive in the court's determination of whether the plaintiffs here, have sufficiently alleged unjust enrichment. In that case, the plaintiffs were challenging the last will and testament of the decedent. The first three counts of the plaintiffs' complaint alleged, respectively, that the defendants, who were the decedent's neighbors, unduly influenced the decedent to execute a will that dispersed " virtually all of his assets" to the defendants; that the decedent, who was infirm as a result of illness and age, lacked testamentary capacity to execute a will; and, in count three, that the decedent, for similar reasons, lacked the capacity to create a trust. The defendants challenged the sixth, seventh, eighth and ninth counts, which alleged, as in the present case, conversion, statutory theft, intentional interference with an inheritance, and unjust enrichment, respectively.
Judge Munro granted the motion to strike the unjust enrichment count stating: " The doctrine of unjust enrichment exists generally to avoid an inequitable result when a party has conferred a benefit upon another, but an action on contract cannot be maintained. See Hartford Whalers Hockey Club v. The Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518. 'Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.' Id., quoting 5 S. Williston, Contracts (Rev. Ed.) § 1479.
" Unjust enrichment, then, is a species of quasi-contract. The doctrinal difficulties attendant to applying this cause of action to the present facts--where there is no relationship between the parties under which it can be said that the plaintiff somehow conferred a benefit upon the defendants--are acute. This is not an action where, notwithstanding a failure in the elements of contract formation or an excuse in performance, it would be inequitable for the defendants to retain some benefit conferred by the plaintiff. This is, at core, an action to contest a will. The court recognizes that unjust enrichment is a flexible, equitable doctrine, see id. at 282-83, 649 A.2d 518; and that a contract, whether express or implied, is not a prerequisite to the maintenance of an action for unjust enrichment. It would, however, stretch the doctrine to its breaking point to apply it to the facts as alleged in the complaint.
" The point is perhaps best illustrated by the fact that the plaintiff's unjust enrichment claim in the present case is dependent for its ultimate validity upon the success of the plaintiff's remaining causes of action challenging the decedent's will. If the plaintiff succeeds on the other counts, the unjust enrichment claim will be duplicative. However, if those claims ultimately fail, then the unjust enrichment claim will fail as well. This is in stark contrast to the typical case where unjust enrichment is utilized as an equitable doctrine to avoid injustice if the plaintiff's claims at law fail." Moore v. Brower, supra, Superior Court, Docket No. X10 UWY 054010227-S.
Likewise, in the present case, the plaintiffs have not alleged, nor can they allege, that they somehow conferred a benefit upon the defendant. The plaintiffs, here, have alleged that they received a disproportionate share of an inheritance, due to the actions of the decedent in making changes to her savings accounts prior to the execution of her will. Like in Moore, " the doctrinal difficulties attendant to applying this cause of action to the present facts--where there is no relationship between the parties under which it can be said that the plaintiff[s] somehow conferred a benefit upon the defendant--are acute. This is not an action where, notwithstanding a failure in the elements of contract formation or an excuse in performance, it would be inequitable for the defendants to retain some benefit conferred by the plaintiff." Id.
Accordingly, the defendant's motion to strike count two is granted.
D
Count Three--Tortious Interference With an Expectation of Inheritance
The defendant bases her motion to strike count three on two independent grounds. First, she argues that tortious interference with an expected inheritance (IIEI) is not a valid cause of action in Connecticut. Specifically, she argues that, although judges of the Superior Court have recognized it as a valid cause of action, neither of our appellate courts have so held. Second, even if this court were to recognize count three as a valid cause of action, it is nonetheless legally insufficient because the plaintiffs fail to allege what the majority of superior courts have determined to be the requisite elements to establish a claim for tortious interference with an expected inheritance.
(i)
Whether Tortious Interference with an Expected Inheritance Is a Viable Cause of Action in Connecticut
There is a split of authority amongst the judges of the Superior Court as to whether a claim of tortious interference with an expected inheritance is a valid cause of action in this state. Our appellate courts have not yet resolved this split. See Geremia v. Geremia, 159 Conn.App. 751, 770 n.13, 125 A.3d 549 (2015) (" As the sole question before this court is whether the Superior Court properly determined that it lacked subject matter jurisdiction, we express no opinion on the legal sufficiency of the cause[] of action [tortious interference with the expectation of an inheritance] set forth in the plaintiffs' complaint. See Caltabiano v. Phillips, 23 Conn.App. 258, 265, 580 A.2d 67 (1990) ('[a] motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds'")).
This court's research reveals that a minority of judges of the Superior Court have declined to recognize such a cause of action. See, e.g., Eder v. Eder, Superior Court, judicial district of New Haven, Docket No. CV-13-6036446-S (June 10, 2014, Nazzaro, J.) (58 Conn.L.Rptr. 347, ); Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV-07-4006664-S (December 22, 2008, Pickard, J.) (46 Conn.L.Rptr. 817, ); Moore v. Brower, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-05-4010227-S (June 14, 2006, Munro, J.) (41 Conn.L.Rptr. 681, ). The reasoning set forth in these cases for finding that a cause of action for tortious interference with an expected inheritance does not exist in Connecticut can be condensed to the following: (1) our appellate courts have not expressly recognized, thoroughly analyzed, or defined the remedy for this cause of action; (2) the Superior Court has been inconsistent in its determination of the necessary elements for this cause of action; and (3) courts recognizing or commenting on the viability of this cause of action are factually distinguishable.
In Ferri v. Powell-Ferri, Superior Court, judicial district of Middlesex, Docket No. CV-11-6006351-S (August 23, 2013, Munro, J.) [56 Conn.L.Rptr. 828, ], aff'd, 317 Conn. 223, 116 A.3d 297 (2015), the issue was not whether to recognize the tort of IIEI but instead " whether to recognize the extension of [tortious interference] from a business expectancy to an equitable claim in a dissolution of marriage." Id. Judge Munro took the opportunity to clarify her position on the issue of interference with an expected inheritance, which she had previously addressed in Moore, prior to Bocian . In Ferri, Judge Munro quoted Bocian, and stated " it is true that no Connecticut Appellate or Supreme Court decisions have been rendered on [the issue of recognizing the claim of tortious interference with an inheritance], which, of course, does not mean the Supreme Court will not recognize this tort . . . Despite the lack of case law, at least one court in the state has recognized the tort of tortious interference with an inheritance, stating that [s]uch a cause of action is very similar if not identical to a recognized cause of action in Connecticut; tortious interference with a contractual right . . . The elements are: (1) that defendant intentionally interfered with the giving or leaving of property to the plaintiff; (2) that defendant used unlawful means to accomplish the interference or had an improper purpose; and (3) proof of damages . . . A plaintiff may recover damages for tortious interference with a contract not only where the contract is thereby not performed . . . but also where the interference causes the performance to be more expensive or burdensome . . . Herman v. Endriss, 187 Conn. 374, 376-77, 446 A.2d 9 (1982). (Citations omitted; internal quotation marks omitted.) Van Eck v. West Haven Funeral Home, Superior Court, judicial district of New Haven, Docket No. CV 09 5031256, (August 4, 2010, Zoarski, J.T.R.) Further, the Restatement of Torts does outline such an action. See Restatement (Second), Torts, Intentional Interference with Inheritance or Gift § 774B (1979) ('One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift'). See also DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV 10 6007472 (August 27, 2010, Peck, J.) [50 Conn.L.Rptr. 605, ] (in finding the claim to be legally sufficient, the court partly relied upon how the Restatement, which is 'an authority often relied on by our appellate courts in outlining the contours of tort law in our state, provides for a claim of tortious interference with an inheritance under circumstances similar to those of the more established cause of action of tortious interference with contract or business expectancy')." Ferri v. Powell-Ferri, supra, Superior Court, Docket No.CV-11-6006351-S. Ultimately, Judge Munro concluded that given the facts of the case in Ferri, " there was no parallel recognition by the Restatement' of inheritance with an equitable interest like the recognition described for interference with an expected inheritance." Id.
However, a majority of the judges of the Superior Court have recognized the viability of this cause of action. See Wild v. Cocivera, Superior Court, judicial district of Hartford, Docket No. HHDCV-146050575S, (June 16, 2016, Noble, J.); Reilley v. Albanese, Superior Court, judicial district of Ansonia, Docket No. AANCV-156018220S (December 14, 2015, Stevens, J.) [61 Conn.L.Rptr. 463, ]; Hart v. Hart, Superior Court, judicial district of Windham, Docket No. CV-14-6007918-S (May 11, 2015, Calmar, J.) (60 Conn.L.Rptr. 399, ); Axiotis v. Michalovits, Superior Court, judicial district of Fairfield, Docket No. CV-13-6034754-S (January 9, 2014, Tyma, J.) (57 Conn.L.Rptr. 455, ); Vechiola v. Fasanella, supra, 55 Conn.L.Rptr. at 525, ; DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV-10-6007472-S (August 27, 2010, Peck, J.) (50 Conn.L.Rptr. 605, ); Van Eck v. West Haven Funeral Home, judicial district of New Haven, Docket No. CV-09-5031256-S, (August 4, 2010, Zoarski, J.T.R.) (2010 WL 3447830); Bocian v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV-06-4019877-S (December 8, 2006, Rittenband, J.T.R.) (42 Conn.L.Rptr. 483, ); see also Eder v. Eder, supra, 58 Conn.L.Rptr. at 349, at *9 (" [T]he majority of trial court decisions considering this issue have held that intentional interference with an inheritance is a viable claim in Connecticut"). The reasoning set forth " in these cases for finding that a cause of action for tortious interference with an expected inheritance exists in Connecticut may be summarized as follows: (1) trial courts are well positioned to determine whether Connecticut is prepared to recognize a developing ground of liability, even where our appellate courts have not expressly adopted such cause of action; (2) tortious interference with an expected inheritance is similar to tortious interference with a contractual right or business relations, which is a recognized cause of action in this state; (3) tortious interference with an expected inheritance is recognized as a valid cause of action by the Restatement (Second) of Torts; (4) the facts involved in an action for interfering with an expected inheritance are distinct from other related causes of action, namely will contests based on fraud or undue influence; (5) our Supreme Court in Hall v. Hall, 91 Conn. 514, 520, 100 A. 441 (1917), referred to the possibility of this cause of action, even though it did not expressly recognize such an action; and (6) sister jurisdictions have recognized the viability of this cause of action.
" [Our Supreme Court] has long recognized a cause of action for tortious interference with contract rights or other business relations . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Citations omitted; internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). " A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Varley v. First Student, Inc., 158 Conn.App. 482, 502, 119 A.3d 643 (2015).
In Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917), the plaintiff attempted to set forth a claim of tortious interference with an inheritance from his father, which was defeated by a demurrer for the sole reason that the claim in question constituted a collateral attack on a decree of probate. In Hall, the Supreme Court determined that if the challenged will had not been determined to be valid by the probate court in a proceeding to which the plaintiff was a party, the complaint " might have stated a good cause of action against the defendants for fraudulently procuring their incapable father to execute a pretended will in their favor, when coupled with the allegation that they had in fact obtained the benefit." Hall v. Hall, supra 91 Conn. 520.
In Devlin v. U.S., 352 F.3d 525, 539-41 (2d Cir. 2003), the Second Circuit noted that the majority of jurisdictions have recognized tortious interference with an expected inheritance as a valid cause of action. See also Eder v. Eder, Superior Court, judicial district of New Haven, Docket No. CV-13-6036446-S (June 10, 2014, Nazzaro, J.) (58 Conn.L.Rptr. 347, 351, ) (majority of jurisdictions have adopted intentional interference with expected inheritance into their tort jurisprudence). In Devlin the Second Circuit reversed the district court's grant of summary judgment in favor of the government and ruled that an intended beneficiary's claim against the government, alleging that postal employees negligently failed to file letter carrier's change of life insurance beneficiary designation form, qualified as " injury or loss of property" for which the government waived sovereign immunity under Federal Tort Claims Act (FTCA), regardless of whether property interest was decided by Connecticut law or was subject to uniform federal meaning; intended beneficiary's loss of status was the type of claim covered by the FTCA because Connecticut followed majority of jurisdictions that recognized tort of interference with inheritance and an intended heir's cause of action against a lawyer for negligent drawing of a will, majority of jurisdictions afforded interest of heirs substantial protection, and intended beneficiary's interest was sufficiently substantial to qualify as property even though it involved intangible harm. 28 U.S.C.A. § § 1346(b)(1), 2671. The Second Circuit noted: " For, in tort law, we find that the interest of a beneficiary or heir is regularly afforded substantial protection. For example, the Restatement (Second) of Torts delineates a cause of action for the 'intentional interference with inheritance or gift' as follows: 'One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.' Restatement (Second) of Torts § 774B (1979); see also id. (comment b) ('gift' includes the designation of another as a beneficiary under an insurance policy). Significantly, for the issue before us, whether the beneficiary's interest is treated as a 'mere expectancy' or as something more is not a threshold consideration going to whether a tort action lies. Rather, the contingent nature of the interest goes instead to the existence of factual causation. Accordingly, the beneficiary must provide 'proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.' Id. (comment d).
" Although this court is aware that reasonable minds have diverged as to whether Connecticut is prepared to recognize a claim for tortious interference with an expected inheritance, this court finds persuasive those opinions recognizing such a cause of action. As noted by those opinions, tortious interference with an expected inheritance is similar to a cause of action that has long been established in this state, the Restatement (Second) of Torts recognizes the viability of this action, our Supreme Court in dicta referred to the possibility of this action, and the majority of sister jurisdictions have held that tortious interference with an expected inheritance is a valid cause of action." Wild v. Cocivera, supra, Superior Court, Docket No. HHDCV146050575S. In addition, the Second Circuit has recognized the tort as a viable cause of action; Devlin v. U.S., supra ; and " the tort's contemporary salience also derives in part from the publicity surrounding a suit involving former Playboy Playmate Anna Nicole Smith, which reached the U.S. Supreme Court twice . . . The Supreme Court's first opinion, a unanimous decision that addressed the substantive nature of Smith's tortious interference allegations, changed the litigation landscape in two ways. First, the Court gave its imprimatur to the tort by characterizing it as 'widely recognized' and citing section 774B [of the Restatement]. Second, the Court confirmed the availability of federal jurisdiction for litigation involving the tort, holding that it falls outside of the probate exception to federal jurisdiction." J.C.P. Goldberg & R.H. Sitkoff, 65 Stan. L.Rev. 335, 364, " Torts And Estates: Remedying Wrongful Interference With Inheritance"; See also, Marshall v. Marshall, 547 U.S. 293, 312, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006). Thus, there is strong state and federal precedent for recognizing the tort. This court therefore joins the majority of superior courts and recognizes tortious interference with an expected inheritance as a viable cause of action in Connecticut.
(ii)
Legal Sufficiency of Plaintiffs' Tortious Interference With an Expected Inheritance Claim
The court, having determined that tortious interference with an expected inheritance is a viable cause of action, must now determine whether the plaintiffs' complaint sets forth sufficient allegations to establish the cause of action. As noted by Judge Noble in Wild, " the Superior Court has been somewhat imprecise with establishing the requisite elements for this cause of action. Compare Hart v. Hart, supra, 60 Conn.L.Rptr. at 406, at *9 and DePasquale v. Hennessey, supra, 50 Conn.L.Rptr. at 607, at *7, with Bocian v. Bank of America, N.A., supra, 42 Conn.L.Rptr. at 485, at *7. The majority of decisions finding that tortious interference with an expected inheritance is a valid cause of action have noted that the elements for such a cause of action are: '(1) the existence of an expected inheritance; (2) the defendant's knowledge of the expectancy; (3) tortious conduct by the defendant; and (4) actual damages to the plaintiff resulting from the defendant's conduct.' Hart v. Hart, supra, 60 Conn.L.Rptr. at 406, at *9; Vechiola v. Fasanella, supra, 55 Conn.L.Rptr. at 527, ; DePasquale v. Hennessey, supra, 50 Conn.L.Rptr. at 607 at *9; Debus v. Comp, Superior Court, judicial district of Middlesex, Docket No. CV-10-6002356-S, (March 9, 2011, Wiese, J.) (2011 WL 1288602). Moreover, these elements are substantively similar to how the Restatement (Second) of Torts defines this cause of action . . ." Wild v. Cocivera, supra, Superior Court, Docket No. HHDCV146050575S.
" Although the Restatement (Second) of Torts is not binding precedent, our appellate courts have frequently looked to it in outlining the contours of tort law in this state. See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 38-39, 46, 675 A.2d 852 (1996) (citing Restatement [Second] of Torts in recognizing action for bystander emotional distress); Stohlts v. Gilkinson, 87 Conn.App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005) (citing Restatement [Second] of Torts in adopting exception to common-law rule that punitive damages cannot be imposed based on theory of vicarious liability)." Wild v. Cocivera, supra, Superior Court, Docket No. HHDCV146050575S.
A policy concern which stands out to this court, based on the court's research, and which this court believes the majority of courts in this state which recognize the tort of IIEI, have not sufficiently addressed, is the effect that recognition of the tort would have on the probate system. Both courts in Hart v. Hart, supra, Superior Court, Docket No. WWMCV-14-6007918-S and Axiotis v. Michalovits, supra, Superior Court, Docket No. CV-13-6034754S, in a footnote discuss other jurisdictions' requirement of exhaustion of probate remedies before allowing the tort, however, neither decision addresses whether, exhaustion should be required in this state. This court has reviewed the cases from other jurisdictions regarding the requirement of exhaustion, and is persuaded that in order to prevent recognition of the tort from having a destabilizing effect on the probate system, exhaustionshould be required, or at least, as part of the required elements, the plaintiffs should be required to allege that no adequate probate remedy exists.
Just as the Supreme Court in Hall v. Hall, supra, 91 Conn. 514 was concerned with a collateral attack on a valid probate court decree, if it had allowed the plaintiff to proceed with his tortious interference claim, Connecticut should also be mindful of the purpose and intent of our probate courts and the statutes which govern them and the possibility of collateral attacks on probate court orders and decrees. " The plaintiff's claim on this point is that his complaint is in the nature of a collateral attack on the decree for fraud, and is therefore expressly authorized by section 194 of the General Statutes. It is, however, an elementary principle that a party to a judgment of a court of competent jurisdiction can never attack it collaterally; and that the only way in which he can attack it, save by appeal is by a proceeding directly instituted for the very purpose of vacating it, or avoiding its legal effect, or enjoining its enforcement. That this principle applies to probate decrees is clear, for we have frequently held that they have the same conclusiveness inter partes as a judgment of any court of competent jurisdiction. See cases collected in Delehanty v. Pitkin, 76 Conn. 412, 420, 421, 56 A. 881.
" Section 194 of the General Statutes has never been supposed to open probate decrees to collateral attack by parties and privies on the ground of fraud, and thus to make them less conclusive than other judgments of courts of competent jurisdiction. On the contrary, it imparts to them additional conclusiveness, for it restricts the right of collateral attack by strangers, as in Cook v. Morris, 66 Conn. 196, 33 A. 994, to cases of fraud, and prevents them from being set aside save by appeal.
" The reason is that it is necessary 'for the common safety and repose of mankind' (Johnes v. Jackson, 67 Conn. 81, 90, 34 A. 709) that the decrees of a court of probate acting within its jurisdiction in the settlement of estates should be given the same conclusive effect as sentences and proceedings in rem. See State v. Blake, 69 Conn. 64, 78, 79, 36 A. 1019, and cases cited. All of these decisions are utterly inconsistent with the plaintiff's theory that he can ignore the conclusive character of the decree, and can, simply by alleging fraud, clothe himself with a right to relitigate the validity of the will in an action for damages." Hall v. Hall, supra, 91 Conn. 521-22. Thus, because of policy concerns, as the court will further discuss infra, the court would recommend that exhaustion of probate remedies be required, or require as a fifth element, the allegation that a remedy in probate court is unavailable or inadequate, before allowing the tort of IIEI.
Although this court would require exhaustion or, in the alternative, a fifth element which requires the allegation that no adequate probate remedy exists, in light of a recent Appellate Court decision, Geremia v. Geremia, 159 Conn.App. 751, 125 A.3d 549 (2015), the court ultimately concludes that it cannot impose such a requirement. See, infra .
(iii)
Availability of the Tort and Adequacy of a Remedy in Probate Court
In Beckwith v. Dahl, 205 Cal.App.4th 1039, 141 Cal.Rptr.3d 142 (2012), the California Court of Appeals recognized for the first time the tort of IIEI. In recognizing the tort, one of the policy concerns addressed by the Court of Appeals was the effect that recognition of the tort could have on the probate system. The court noted: " One policy concern that stands out is the effect that recognition of the tort could have on the probate system. In California, as in many other states, inheritance laws are " purely a creature of statute . . ." (Munn, supra, 185 Cal.App.4th at p. 589, 110 Cal.Rptr.3d 783.). The probate system was created to protect a decedent's testamentary intent by imposing very stringent requirements on a will contest. (See Prob.Code, § 6111 [signature on holographic will must be in the testator's handwriting]; Prob.Code, § 6110 [typewritten will must be executed and witnessed].)" Beckwith v. Dahl, 205 Cal.App.4th at 1052.
Like in other jurisdictions, Connecticut " [p]robate courts, generally, have jurisdiction over matters involving the settlement of estates and the validity of wills. General Statutes § 45a-98. 'The Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate.' First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A.183 (1938). 'It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power.' (Citations omitted, internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 192 A.2d 44 (1963).
" General Statutes § 45a-98 provides, in relevant part: '(a) Courts of probate in their respective districts shall have the power to . . . (2) admit, wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45a-287." Moore v. Connery, Superior Court, judicial district of Ansonia-Milford, Docket No. AANCV136013334S, (September 24, 2013, Brazzel-Massaro, J.). " '[O]n an appeal from the probate of a [w]ill the issue is strictly whether there is a valid [w]ill. Validity primarily involves three questions: (1) Was the instrument executed with the requisite legal formalities; (2) Did the deceased have testamentary capacity; and (3) Was the instrument executed freely, without undue influence, fraud or mistake. Folsom, Connecticut Estates Practice Probate Litigation (1992) § 7:10, pp. 278-79." Thompson v. Estate of Thompson, Superior Court of Connecticut, Docket No. CV 980417909, (May 7, 1999, Fracasse, J.).
A duly executed will must be in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator's presence. General Statutes § 45a-251.
The established test for testamentary capacity queries whether the testator had a mind and a memory sound enough to know and understand the business upon which he was engaged at the time of the will's execution. Stanton v. Grigley, 177 Conn. 558, 564, 418 A.2d 923 (1979).
See Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991) (finding that as a probate appeal is a trial de novo, the will's proponent retains the burden of proving, by a preponderance of the evidence, that the will was executed in the manner required by statute); Estate of Beach v. Probate Appeal, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 1495 78, (January 17, 1997, Tobin, J.) (allegations that will was not duly executed, that the testator lacked testamentary capacity, and that the testator was subject to undue influence, constituted facts that should be heard in probate appeal challenging admission of will to probate).
Thus, as noted in Beckwith, " [r]ecognition of the IIEI tort could enable plaintiffs to usurp a testator's true intent by bypassing these stringent probate requirements. The court in Munn [v. Briggs, 185 Cal.App.4th 578, 110 Cal.Rptr.3d 783 (2010)] explained, 'If we were to permit, much less encourage, dual litigation tracks for disgruntled heirs, we would risk destabilizing the law of probate and creating uncertainty and inconsistency in its place. We would risk undermining the legislative intent inherent in creating the Probate Code as the preferable, if not exclusive, remedy for disputes over testamentary documents. [Citation].' ( Munn, supra, 185 Cal.App.4th at p. 590, 110 Cal.Rptr.3d 783, quoting Wilson v. Fritschy (N.M.Ct.App.2002) 2002-NMCA-105, 132 N.M. 785, 55 P.3d 997, 1002.)" Beckwith v. Dahl, supra, 205 Cal.App.4th 1052.
In discussing the availability of the IIEI tort and the adequacy of a remedy in probate court, the court in Munn which was cited in Beckwith, supra, noted: " [i]n terms of availability of the tort, the cases seem to fall into three categories. First, there are those cases in which probate provides an adequate remedy and the party claiming injury has no need for the tort. Any action would proceed in the probate court. Second, there are those cases in which probate would provide an inadequate remedy or no remedy. Such cases should proceed in tort without resort to probate. Third, there are those cases in which a probate proceeding is held, and the result does not provide complete relief (or any relief) to the person alleging deprivation of an expectancy by tortious interference . . . In this third category of cases . . . the issue often becomes whether a tort action would be barred as a collateral attack on the probate court determination. The collateral attack doctrine could potentially bar the action because the person claiming tortious interference did not seek appropriate remedy in probate. (Suggestions for Resort to the Tort, supra, 39 Univ. of Tol. L.Rev. at pp. 775-776, fn. omitted.)
" [The court's] independent research also confirm[ed] that when a party has an adequate remedy in probate, the party generally will be precluded from recovering in tort for interference with an expectancy. (See Wilson v. Fritschy (N.M.App.2002) 2002-NMCA-105, 132 N.M. 785, 55 P.3d 997, 1003 (Wilson) [analyzed post ]; Minton v. Sackett (Ind.App.1996) 671 N.E.2d 160, 162 [noting [i]n determining whether to adopt the approach of [section 774B of] the Restatement, we must balance the competing goals of providing a remedy to injured parties and honoring the strictures of our probate code, which provides that a will contest is the exclusive means of challenging the validity of a will, ' and further noting ' [a] majority of the states which have adopted the tort of interference with an inheritance have achieved such a balance by prohibiting a tort action to be brought where the remedy of a will contest is available and would provide the injured party with adequate relief.]).
" The rule precluding a party from moving in tort when probate provides an adequate remedy applies even in those states that have recognized the tort. (See Survey with Analysis in the Mountain States, supra, 45 Idaho. L.Rev. at p. 14, citing Wilson, supra, 55 P.3d at p. 1003; see also Survey with Analysis in the Fifth and Eleventh Circuits, supra, 55 Baylor L.Rev. at p. 95 ['Most states that recognize the tort see it as a secondary or back-up remedy, only to be used when, for whatever reason, the probate court remedy would be inadequate']; Fried, The Disappointed Heir: Going Beyond the Probate Process to Remedy Wrongdoing or Rectify Mistake (2004) 39 Real Prop. Prob. & Tr. J 357, 371, fn. omitted ['A court faced with a lawsuit brought by a disappointed heir for damages or for imposition of a constructive trust should determine initially whether the matter is one within the province of a probate court, ' and [i]f the claimed wrongdoing relates to the execution or revocation of a will, and the claimant has standing in the probate proceeding, the court should not entertain an independent action even if the jurisdiction recognizes the tort of interference with an inheritance.'])." Munn v. Briggs, supra, 185 Cal.App.4th 587-88.
The development of the tort of interference with an expected inheritance by the Courts of Appeals in New Mexico is also instructive in discussing whether exhaustion of probate remedies should be required before allowing the tort. In Doughty v. Morris, 1994- NMCA 019, 117 N.M. 284, 871 P.2d 380 (1994), the court for the first time recognized a cause of action in New Mexico " against those who intentionally and tortiously interfere with an expected inheritance." Id., 287. The daughter in Doughty alleged that her brother had tortiously interfered with her inheritance by coercing their severely ill mother to make certain inter vivos transfers of property that depleted their mother's estate so that there was nothing left to divide as specified in their mother's will. Id., 286. Relying on the Restatement section 774B, the court in Doughty ruled that for the daughter to recover for tortious interference with an expected inheritance, she needed to prove: " (1) the existence of an expectancy; (2) a reasonable certainty that the expectancy would have been realized, but for the interference; (3) intentional interference with that expectancy; (4) tortious conduct involved with interference, such as fraud, duress, or undue influence; and (5) damages." Id., 288. The court affirmed there was sufficient evidence in the record to support the trial court's finding that the son intentionally interfered with the daughter's expected inheritance as to their mother's three certificates of deposits and a joint savings account. Id., 291.
The tort was next discussed by the New Mexico Court of Appeals in Wilson v. Fritschy, 2002- NMCA 105, 132 N.M. 785, 787, 55 P.3d 997 (2002). There, the testator's niece and nephew alleged that the testator's accountants unduly influenced the testator to execute a new testamentary plan that provided the niece and nephew with only a life estate. The testator's new testamentary plan " had the practical effect of disinheriting" the niece and nephew. Id. Although the niece and nephew retained legal counsel and notified the trustee and personal representative of the testator's estate that they intended to file formal testacy proceedings within the statutory prescribed period, they never did so. Id., 787-88. The plaintiffs, niece and nephew instead sued the accountants in tort for interference with an expected inheritance because the accountants had recommended that the testator make charitable contributions to reduce the estate's potential tax liability and because one such accountant, who served as the auditor of the nursing home where the testator lived, suggested to the testator that the nursing home would be an appropriate charitable beneficiary. Id., 788.
" The Wilson court noted that in Doughty it had no reason to consider whether the tort of interference with an expected inheritance 'should also be recognized when the interference with inheritance takes place in the context of a will or other testamentary device that can be challenged in probate.' . . . Relying on Rienhardt v. Kelly (10th Cir. 1999) 164 F.3d 1296 (Rienhardt), which interpreted Doughty and applied New Mexico law, the court in Wilson ruled the Tenth Circuit Court of Appeals 'got it right' in Rienhardt when that court 'made thepivotal distinction that in Doughty, [n]o challenge to this behavior could be brought in probate proceedings, because the will remained valid and executable according to its language. Thus, to remedy this seemingly remedy-less situation, the New Mexico court [in Doughty [Doughty] ] recognized the tort.' ( Wilson, supra, 55 P.3d at p. 1001, quoting Rienhardt, supra, 164 F.3d at p. 1301.)
" The Wilson court further noted the Tenth Circuit's opinion in Rienhardt 'appears to be in line with the weight of the case law emerging from state appellate courts. Of those states that have considered the tort of intentional interference with inheritance, most have held that claims in tort may only be brought when there is no adequate remedy in probate.' ( Wilson, supra, 55 P.3d at p. 1001; citing among authorities Robinson v. First State Bank (1983) 97 Ill.2d 174, 73 Ill.Dec. 428, 454 N.E.2d 288 [Illinois Supreme Court rejected a post-probate claim by disgruntled heirs]), James A. Fassold, Tortious Interference with Expectancy of Inheritance: New Tort, New Traps, 36 Ariz. Atty. 26, 28-29 (2000) (stating that, in most states where the tort is recognized, a deprived legatee must seek relief through probate or show that probate is impossible before bringing such a claim.).
" Noting that inheritance laws are 'purely a creature of statute' . . . the court in Wilson refused to allow niece and nephew to circumvent the probate code by 'calling a will contest an action in tort.' . . . Wilson explained: 'We feel compelled to protect the jurisdictional space carved out by our legislature when it enacted the Probate Code and created remedies, such as a will contest, designed exclusively for probate. We note that a will contest in probate requires a greater burden of persuasion than an independent action in tort . . . A presumption of due execution normally attaches to a testamentary instrument administered in probate, but not necessarily in tort . . . If we were to permit, much less encourage, dual litigation tracks for disgruntled heirs, we would risk destabilizing the law of probate and creating uncertainty and inconsistency in its place. We would risk undermining the legislative intent inherent in creating the Probate Code as the preferable, if not exclusive, remedy for disputes over testamentary documents . . .'
" Referring to the rule requiring the validity of a testamentary instrument to be addressed in probate and not in a separate tort action as the 'emerging majority rule' . . . the court in Wilson noted that niece and nephew 'could have addressed their undue influence claims [against accountants] in probate. If they had been successful in setting aside [testator's new testamentary plan, they] would have received their entire expectancy under the [original] trust.' . . .
" The niece and nephew nonetheless argued in Wilson that absent recognition of an independent tort, tortfeasors such as accountants could evade responsibility even if niece and nephew had successfully set aside in probate the testator's new testamentary plan and realized their full expectancy . . . The court in Wilson recognized the validity of this argument, and noted accountants 'may well escape financial accountability for their alleged wrongs. However, we simply may have to tolerate that consequence as a cost of protecting the integrity of the probate process. The tort of intentional interference with inheritance did not arise out of a perceived need to punish alleged wrongdoers. The tort developed to protect valid testamentary expectancies and to provide a remedy when the probate process is inadequate . . . The proper focus of the tort is on the just distribution of estate assets; when that can be achieved in probate, the need for the tort disappears' ( Wilson, supra, 55 P.3d at p. 1005 (italics added); see also DeWitt v. Duce (Fla. 1981), 408 So.2d 216, 219 [Florida Supreme Court noted that '[ c]ases which allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies ']).
" The adequacy of a party's remedy in probate is also one of the justifications given by courts in those states that have declined to recognize the tort of interference with an expected inheritance. (See Survey with Analysis in the Mountain States, supra, 45 Idaho L.Rev. at p. 18 [noting the Montana Supreme Court in Hauck v. Seright (1998) 1998 MT 198, 290 Mont. 309, 964 P.2d 749, decided not to recognize for the first time the tort of interference with an expected inheritance because the heir had an adequate remedy in probate through the heir's successful will contest]; see also Jackson v. Kelly (2001) 345 Ark. 151, 44 S.W.3d 328, 333 [noting the issue of whether Arkansas acknowledges the tort of interference with an expected inheritance is one of first impression, but declining to recognize the tort in the case before it because the appellant's remedy in probate court was adequate].)" (Citations omitted; emphasis added; emphasis in original.) Munn v. Briggs, supra, 185 Cal.App.4th 589-91.
In McGregor v. McGregor, 101 F.Supp. 848 (D.Colo. 1951), aff'd, 201 F.2d 528 (10th Cir. 1953), the plaintiffs were legatees of the decedent, Colin H. McGregor whose last will and testament contained substantial bequests in favor of each of the plaintiffs. The plaintiffs brought an action against the defendant, who was the widow of the testator, alleging that she wrongfully and wilfully presented another earlier will of the decedent for probate in a Louisiana state court; that such will made no provision for the plaintiffs but left the decedent's entire estate to the defendant; that such earlier will was admitted to probate, and McGregor's estate was administered, distributed and duly closed on or about January 7, 1950, in accordance with its provisions. The plaintiffs further alleged that at various times, the dates of which could not be determined from the complaint, that the defendant promised to protect the interests of the plaintiffs and the plaintiffs did not know that they were being deprived of their respective legacies until on or about February 20, 1951. The action was originally brought in state court, but removed to federal court by reason of diversity of citizenship between the parties.
The plaintiffs pled three causes of action. The first of these was for damages in tort for wrongfully depriving the plaintiffs of their just legacies; the second was equitable and sought an order that the defendant be required to probate the true and last will of the decedent, and the third sought to have certain real property in LaPlata County, Colorado, allegedly owned by the defendant, conveyed to the plaintiffs and applied in lieu of the bequests and in satisfaction of any damages. The defendant filed a motion to dismiss for failure to state a claim. The district court recognized the tort of IIEI, however, it imposed as a prerequisite to the claim, a requirement that the plaintiff first attempt to challenge any will or trust that was alleged to have given rise to the claim, or in the alternative, demonstrate that a traditional probate remedy was unavailable or inadequate under the circumstances of the particular case.
In granting the motion to dismiss, the court stated: " There is little, if any, dispute among the authorities that a person who had wrongfully deprived another of his just bequest under a will has perpetrated an actionable tort. Morton v. Petitt, 124 Ohio St. 241, 10 Ohio Law Abs. 574, 177 N.E. 591; Dulin v. Bailey, 172 N.C. 608, 90 S.E. 689, L.R.A. 1917B, 556; Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113; Allen v. Lovell's Adm'x, 303 Ky. 238, 197 S.W.2d 424. However, the courts have ruled with almost equal unanimity that before the deprived legatee can seek relief in a tribunal other than the proper probate court, an attempt first must have been made to probate the will which is alleged to give rise to the claim, or that, in the alternative, it must be alleged and shown that such probate is impossible under the circumstances of the particular case. Allen v. Lovell's Adm'x, supra; Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952; Riggs v. Rankins' Ex'r, 268 Ky. 390, 105 S.W.2d 167; Sprowl v. Lockett, 109 La. 894, 33 So. 911; Axe v. Wilson, 150 Kan. 794, 96 P.2d 880; Case of Broderick's Will, 21 Wall. 503, 88 U.S. 503, 22 L.Ed. 599; Gaines et ux. v. Chew, 2 How. 619, 646, 43 U.S. 619, 646, 11 L.Ed. 402, jurisdiction retained on other grounds; McDaniel v. Pattison, 98 Cal. 86, 27 P. 651, 32 P. 805; Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113; 45 Mich.Law Rev. 923.
" There is no allegation in the complaint herein that any attempt has ever been made anywhere to probate the instrument the plaintiffs claim to be the true last will of Colin H. McGregor; nor does it contain any statement which ever implies that probate in the proper jurisdiction is impossible or even impracticable. Hence, under the authorities last hereinabove cited, wherein such allegations are held to be prerequisites to the maintenance of an action of this character, the Court is clearly precluded from entertaining the asserted claim for damages for tort at this time." (Emphasis added.) McGregor v. McGregor, supra, 101 F.Supp. 849-50. It is important to note that procedurally, the action was challenged by a motion to dismiss on grounds that the plaintiffs failed to state a claim, not due to lack of subject matter jurisdiction. Thus, the McGregor court, included as part of the elements of establishing a viable IIEI claim, the requirement to plead and prove that a traditional probate remedy was unavailable or inadequate.
A motion to dismiss in federal court, 12(b)(6), failure to state a claim, is the equivalent to our motion to strike.
Finally, in recognizing the tort of IIEI, the California Court of Appeals in Beckwith, took into consideration the policy concerns raised in Munn and other jurisdictions regarding the effect recognition of the tort would have on the probate system, and concluded that " a court should recognize the tort of IIEI if it is necessary to afford an injured plaintiff a remedy . . . In addition, case law from other jurisdictions bars IIEI claims when an adequate probate remedy exists. By recognizing similar restrictions in IIEI actions, we strike the appropriate balance between respecting the integrity of the probate system, guarding against tort liability for inherently speculative claims, and protecting society's interest in providing a remedy for injured parties . . ." Beckwith v. Dahl, supra, 205 Cal.App.4th at 1056.
As previously noted, there is no appellate authority in this state recognizing the tort of IIEI. In addition, the majority of courts in this state that recognize the tort do not address in any detail whether exhaustion, or the pleading that a traditional probate remedy is unavailable or inadequate, should be required before allowing the tort to proceed. This court agrees with the Beckwith court and courts in other jurisdictions that requiring exhaustion, or at least requiring that the plaintiffs allege the lack of an adequate probate remedy exists, is an appropriate balance between respecting the integrity of our probate system. By at least requiring that the plaintiffs plead adequate facts demonstrating that they cannot get relief in probate court, would provide notice to the court, and to opposing parties that the claim is not a will contest or challenge to some other testamentary document which has been exclusively reserved for our probate courts.
This court acknowledges, as the court did in Wilson, the pivotal distinction between the plaintiffs' tortious interference claim in Doughty and the claim in Wilson . In Doughty the plaintiff was challenging her brother's alleged tortious conduct which resulted in the depletion of their deceased mother's estate, which in turn resulted in the plaintiff being deprived of her expected inheritance as specified in the will. The plaintiff was not challenging the will, but rather the tortious conduct of her brother which she claimed had led to the depletion of the estate. " No challenge to this behavior could be brought in probate proceedings, because the will remained valid and executable according to its language." Munn v. Briggs, supra, 185 Cal.App.4th 589. In Wilson, however, the plaintiffs were challenging the decedent's testamentary plan which they should have challenged in probate court. Thus, " the tortious interference [took] place [with]in the context of a will or other testamentary device that can be challenged in probate." Id., 589. Indeed, during oral argument in the present case, the plaintiffs stated that they were not challenging the decedent's will or the decedent's intent outlined therein, but rather they were challenging the alleged tortious conduct of the defendant which resulted in the decedent transferring the savings accounts to investment accounts and naming the defendant as beneficiary. Such conduct, the plaintiffs claim, diminished the decedent's estate and thereby deprived them of their expected inheritance. In light of the policy concerns raised, and this court's opinion that, because of these concerns, exhaustion, or at least an allegation that no adequate probate remedy exists, these allegations, as required in the majority of other jurisdictions recognizing the tort, should have been included in the complaint.
However, although this court is persuaded by the policy concerns raised by other jurisdictions who impose the requirement of exhaustion of probate remedies, or the pleading of facts to demonstrate that a traditional probate remedy is unavailable or inadequate, further research revealed a recent Connecticut Appellate Court decision which gives this court pause to impose such requirements.
In Geremia v. Geremia, supra, 159 Conn.App. 751, the Appellate Court reversed the trial court's decision dismissing tort actions on grounds that it lacked subject matter jurisdiction due to the doctrine of primary jurisdiction. Among the number of tort actions filed, were claims for IIEI, statutory theft and conversion. The issue before the Appellate Court did not involve whether the tort of IIEI was a cognizable cause of action in Connecticut, but rather whether the Probate Court, where the tort claims were also pending, had exclusive jurisdiction over those tort actions.
" As the sole question before this court is whether the Superior Court properly determined that it lacked subject matter jurisdiction, we express no opinion on the legal sufficiency of the causes of action set forth in the plaintiffs' complaint. See Caltabiano v. Phillips, 23 Conn.App. 258, 265, 580 A.2d 67 (1990) ('[a] motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds'); see also Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266 ('[t]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike' [emphasis in original]), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004)." Geremia v. Geremia, supra, 159 Conn. at 770, n.13.
In Geremia, the plaintiffs appealed from the judgment of the trial court granting the defendants' motion to dismiss. The trial court concluded that it lacked subject matter jurisdiction over various causes of action alleged in the plaintiffs' complaint due to the doctrine of primary jurisdiction. On appeal the plaintiffs challenged the propriety of that determination. The Appellate Court affirmed in part and reversed in part the judgment of the trial court. The Geremia decision is instructive on whether our appellate courts, if they were to recognize the tort, would, as other states have, impose a requirement of exhaustion, or, in the alternative, require the pleading of facts which demonstrate that a traditional probate remedy is unavailable or inadequate, before allowing an IIEI claim to proceed.
In reaching its conclusion that the trial court improperly dismissed the plaintiff's tort actions, the court discussed in detail the doctrine of primary jurisdiction. The court stated: " Generally speaking, the primary jurisdiction doctrine arises in the context of administrative proceedings. As our Supreme Court has explained, 'the primary jurisdiction doctrine . . . is triggered when courts and administrative agencies have concurrent subject matter jurisdiction over a case . . . Intended to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties, the primary jurisdiction doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body ; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views . . . [T]he rationale underlying primary jurisdiction is in substance much the same as that which supports exhaustion . . . The doctrine of primary jurisdiction, like exhaustion, is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions.' (Citation omitted; emphasis added; footnote added; internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 222-23 n. 23, 105 A.3d 210 (2014); see also Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 348, 363 A.2d 170 (1975) ('[t]he doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties' [internal quotation marks omitted]). We know of no authority, nor have the defendants furnished any, in which our appellate courts have applied that doctrine to Probate Court proceedings.
" 'Concurrent jurisdiction has been said to mean the jurisdiction of several different tribunals, each authorized to deal with the same subject-matter at the choice of the suitor.' (Internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn.App. 324, 348, 695 A.2d 1072 (1997)." Geremia v. Geremia, supra, 159 Conn.App. 764, n.11.
" Rather, the term 'primary jurisdiction' possesses a distinct meaning in the context of Probate Court proceedings. Connecticut law long has demarcated the distinction between the jurisdiction of our probate and superior courts. General Statutes § 51-164s provides in relevant part that [t]he Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute . . .' Almost two centuries ago, our Supreme Court recognized that the General Statutes vest 'in the court of probate, the whole power of settling estates . . .' Beach v. Norton, 9 Conn. 182, 196 (1832). Since that time, our courts have adhered to the 'undoubted proposition' that [t]he Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate.' (Internal quotation marks omitted.) Hall v. Dichello Distributors, Inc., 6 Conn.App. 530, 534-35, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986). Thus, unlike the primary jurisdiction doctrine that arises in the administrative context, the concept of primary jurisdiction in the probate context is not a judicially crafted tool of adjudicative preference applicable to situations in which an administrative agency and the Superior Court possess concurrent jurisdiction. In the probate context, primary jurisdiction instead involves a statutory question as to whether jurisdiction over the subject matter rests exclusively with the Probate Court." Geremia v. Geremia, supra, 159 Conn.App. 764-66. The court went on to state that because " [t]he Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties[, and because] [a]s a court of limited jurisdiction, it may act only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power . . . [, and] [s]uch a court is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . [i]t is . . . incumbent on a party moving to dismiss a complaint on primary jurisdiction grounds to demonstrate that the causes of action contained therein are matters entrusted exclusively to the Probate Court." Id., 766-68.
" In moving to dismiss the plaintiff's action, for lack of subject matter jurisdiction, the defendants did not identify any statutory basis indicating that the Probate Court was vested with primary jurisdiction over the substance of the plaintiffs' complaint [which included the IIEI claim]. In granting that motion, the trial court cited to General Statutes § 45a-98 in support of the general proposition that the Probate Court 'has exclusive subject matter jurisdiction over matters involving the validity of wills and the settlement of estates . . .'" Id., 768. The Appellate Court therefore " focused [its] attention on § 45a-98 in considering the plaintiffs' claim, mindful that [o]ur legislature has consistently drafted legislation to state expressly when a court has exclusive jurisdiction.'
" Section 45a-98(a) provides: 'Courts of probate in their respective districts shall have the power to (1) grant administration of intestate estates of persons who have died domiciled in their districts and of intestate estates of persons not domiciled in this state which may be granted as provided by section 45a-303; (2) admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45a-287; (3) except as provided in section 45a-98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property; (4) except as provided in section 45a-98a, construe the meaning and effect of any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court, or, with respect to an inter vivos trust, if that trust is or could be subject to jurisdiction of the court for an accounting pursuant to section 45a-175, provided such an accounting need not be required; (5) except as provided in section 45a-98a, apply the doctrine of cy pres or approximation; (6) to the extent provided for in section 45a-175, call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, and attorneys-in-fact acting under powers of attorney created in accordance with section 45a-562, to account concerning the estates entrusted to their charge; and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state.'" Id.
Upon review of § 45a-98, the court agreed with the plaintiffs that the legislature had not entrusted the actions alleged in the plaintiffs' complaint, which included the IIEI claim, to the exclusive jurisdiction of the Probate Court. Specifically, with respect to the IIEI claim, the court determined that " [n]either § 45a-98 nor any other provision of the General Statutes vests the Probate Court with jurisdiction, exclusive or otherwise, over those actions sounding in tort [, and] [f]or that reason, the court improperly dismissed those counts." Id., 768-770. Thus, based upon a plain reading of the relevant provisions of the probate statutes, the court could not find any provision which vests the Probate Court with jurisdiction over the tort actions as alleged in the plaintiffs' complaint.
The court also did not agree with the defendant's claim that the plaintiffs' claimsalleging conversion and statutory theft of certain funds and personal property of the [decedent] [were] the exclusive domain of the Probate Court because they pertain to the property of her estate. The court acknowledged that " [i]t is true that § 45a-98(a) plainly confers on the Probate Court 'the power to . . . (3) determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property . . . Nevertheless, the exercise of that power is not entrusted solely with the Probate Court. Section 45a-98(b) expressly provides in relevant part that [t]he jurisdiction of courts of probate to determine title or rights or to construe instruments . . . pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.' As this court has observed, § 45a-98(b) 'is a declaration that the Probate Court and the Superior Court are to have concurrent jurisdiction over matters involving title and rights to property.' Gallant v. Cavallaro, 50 Conn.App. 132, 135-36, 717 A.2d 283, cert. denied, 247 Conn. 936, 722 A.2d 1216 (1998), cert. denied, 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999). Accordingly, while the Probate Court possesses jurisdiction to determine title or rights of possession and use regarding 'any real, tangible or intangible property that constitutes, or may constitute' part of Margaret's estate, that jurisdiction is not exclusive.
" The jurisdiction conferred upon our courts of probate to determine title or rights of possession to such property also is constrained by the limitation set forth in General Statutes § 45a-98a(a)(1). That statute provides in relevant part that the Probate Court shall have jurisdiction under § 45a-98(a)(3) 'only if . . . the matter in dispute is not pending in another court of competent jurisdiction . . .' (Emphasis added.) Section 45a-98a(a)(1) evinces in unambiguous fashion a legislative intent to confer concurrent jurisdiction over such matters. It further operates to preclude our courts of probate from exercising jurisdiction over such matters that already are pending before the Superior Court." Geremia v. Geremia, supra, 159 Conn. at 771, n.14.
The defendant also raised as an alternative ground for dismissal collateral estoppel because the plaintiffs had requested the Probate Court to " issue orders" regarding the defendants' allegedly wrongful appropriation of funds and personal property belonging to the decedent, and that the Probate Court acted on that request. The defendants argued in their motion to dismiss that the Superior Court lacked subject matter jurisdiction over the plaintiffs' complaint due to the doctrines of res judicata and collatereal estoppel. The Appellate Court stated that " the argument was untenable. Admittedly, our Supreme Court has recognized that 'Probate Court decrees . . . are final judgments for the purpose of the doctrine of res judicata.' Gaynor v. Payne, 261 Conn. 585, 596, 804 A.2d 170 (2002). Nevertheless, [r]es judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed.' Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994); see also State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008) ('the doctrine of collateral estoppel does not implicate a court's subject matter jurisdiction [and even] when applicable . . . does not mandate dismissal of a case' [citations omitted]); Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985) (claim of res judicata does not implicate subject matter jurisdiction of court). Whether those doctrines of preclusion operate to bar any of the plaintiffs' claims before the Superior Court, therefore, is not a proper basis on which to predicate a motion to dismiss for lack of subject matter jurisdiction. Those doctrines properly are raised by motion for summary judgment. See Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993); Zizka v. Water Pollution Control Authority, supra, at 687, 490 A.2d 509." Geremia v. Geremia, supra, 159 Conn.App. 771, n.15. This suggests that if the Appellate Court were to recognize the tort of IIEI, according to their ruling in Geremia, such concerns regarding res judicata, collateral estoppel, or concerns as raised in the Hall court, could be eliminated by properly raising those issues in a motion for summary judgment. Thus, the court may consider the requirement of exhaustion, or requiring allegations to demonstrate that a probate remedy is unavailable or inadequate unnecessary.
The court also noted that the scope of the relief sought by the plaintiffs was not within the jurisdiction of the Probate Court. " With respect to the conversion claims, [the plaintiffs] requested monetary damages, statutory interest, punitive damages, costs, and a decree that 'all of [the decedent's] personal property and monies misappropriated by the defendants be held in constructive trust for the benefit of [her estate].' With respect to their statutory theft claims, the plaintiffs sought identical relief, save for the additional request of treble damages pursuant to General Statutes § 52-564. Proper recourse for a party seeking such relief is to the Superior Court. As our Supreme Court observed in Ramsdell v. Union Trust Co., 202 Conn. 57, 73, 519 A.2d 1185 (1987), after noting the limited jurisdiction of the Probate Court, 'claims for money damages and equitable relief against the defendant should be brought in a court of general, rather than limited, jurisdiction.' Indeed, '[a] court of probate is unable to award damages . . . It would, therefore, be inappropriate to allow a court to entertain an action in which it is without the power to grant the relief requested.' (Citation omitted.) Palmer v. Hartford National Bank & Trust Co., supra, 160 Conn. at 430, 279 A.2d 726. In light of the foregoing, we conclude that the trial court improperly determined that the Probate Court possessed jurisdiction over the plaintiffs' conversion and statutory theft claims regarding property allegedly belonging to Margaret." Id., 773-74. The court also determined that the Probate Court did not possess exclusive jurisdiction over the plaintiffs' claims of breach of fiduciary duty, or unjust enrichment.
Although the court in Geremia was not specifically addressing whether the tort of IIEI is a viable cause of action in Connecticut, it clearly determined that the Probate Court did not have jurisdiction over the cause of action because neither § 45a-98 which sets forth the general powers of the probate court, nor any other provision of the General Statutes vested the Probate Court with jurisdiction over the action. If the Appellate Court were to recognize the tort of IIEI as a viable cause of action, in light of its decision in Geremia, the court might be hard pressed not to impose a requirement of exhaustion, and might also find it unnecessary to require, as an alternative, the pleading of factual allegations to demonstrate the unavailability or inadequacy of a traditional probate remedy.
It is important to point out that the Appellate Court made it clear that " [it] express[ed] no opinion on the legal sufficiency of the causes of action set forth in the plaintiffs' complaint, " because that issue was not before them. Geremia v. Geremia, supra, 159 Conn.App. 771, n.15. Therefore, the court did not have reason to consider, nor did it consider any of the public policy concerns addressed by this court in this opinion.
While this court is persuaded by the public policy concerns raised by other jurisdictions regarding the effect recognition of the tort of IIEI would have on our probate system, and would, like the majority of other jurisdictions, require exhaustion, or at least the allegation of a fifth element, namely, that a traditional probate remedy is unavailable or inadequate, this court is bound by existing Connecticut Appellate Court precedent. " A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010). " [I]t is manifest to our hierarchical judicial system that [our Supreme Court] has the final say on matters of Connecticut Law and that the Appellate Court and Superior Court are bound by [its] precedent." Stuart v. Stuart, 297 Conn. 26, 45, 996 A.2d 259 (2010). " Although the concerns raised by [a] trial court might ultimately have merit . . . revision of [appellate] precedent is not the trial court's function." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996). " Th[e] Superior Court has absolutely no right, privilege, or authority to declare any final decision of any appellate court, be it the Appellate or Supreme Court, to be in error." Christian v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV 05 4000297, (November 29, 2006, Fuger, J.).
Accordingly, while the court agrees that IIEI is a viable cause of action, it is this court's opinion that in light of Geremia, it cannot, as articulated by a majority of other jurisdictions that recognize the tort, impose the requirement of exhaustion, or, as an alternative, a fifth element, which would require the pleading of allegations to demonstrate that a probate remedy is unavailable or inadequate.
(iv)
Sufficiency of Plaintiff's Complaint
The alternative ground specified in the defendant's motion to strike count three is that, even if IIEI is a cognizable cause of action in Connecticut, the plaintiffs have failed to allege sufficient facts to state a cause of action. Thus, as discussed by the majority of superior courts in this state that recognize the cause of action, this court must look to whether the plaintiff has sufficiently alleged the following elements: (1) the existence of an expected inheritance; (2) the defendant's knowledge of the expectancy; (2) tortious conduct by the defendant; and (4)actual damages.
Here, the plaintiffs allege that the defendant arranged for the decedent to make changes to her bank accounts, and persuaded and influenced the decedent to name her as a beneficiary on certain bank accounts; that the defendant's husband handled the decedent's finances and had access to all of her financial information; and that the changes occurred before the execution of the decedent's will, because the plaintiffs allege that the changes made to the bank accounts were not provided to the decedent's attorney at the time the will was executed. The plaintiffs have not sufficiently alleged facts to establish any of the required elements. First, reading the complaint broadly and in a light favorable to the plaintiffs, this court cannot conclude that the plaintiffs have adequately alleged an expected inheritance. The complaint alleges that the decedent had savings accounts that, at the persuasion and influence of the defendant, she transferred to brokerage accounts and named the defendant as beneficiary prior to the execution of her will. There are no allegations which contain any facts to support the claim that the savings accounts were intended to be included in the decedent's estate plan. In other words, were the plaintiffs' names on the savings accounts? Were the plaintiffs named beneficiaries on the savings accounts? There are no factual allegations to demonstrate that at the time of the execution of her will, the decedent intended for the plaintiffs to inherit monies from the savings accounts. There is no indication on what date the decedent presented to her attorney to have her will drafted and executed. What is clear from paragraph nine of count one is that " when the decedent met with her attorney to prepare her will the existence and the amount of money contained in the accounts in which the Defendant was a beneficiary of the decedent was not made known to her attorney . . ." Pl. Compl. count one, P9. Thus, the changes to the accounts were made prior to the execution of the will. Given that the decedent's will was not executed until after the transfer of the savings accounts, and the naming of the defendant as beneficiary, it may very well have been the decedent's intention, prior to the execution of her will, to do as she had done. Moreover, it is not clear from the allegations of the complaint that it was the decedent's intent to include the bank accounts in her estate plan at the time she executed the will, thereby giving the plaintiffsan expected inheritance. The existence of an expected inheritance is not clear from the facts as alleged. Accordingly, this court cannot conclude that the first element has been sufficiently alleged.
Even if the plaintiffs could establish that they had an expected inheritance, they do not allege sufficient facts to establish that the defendant had knowledge of that expectancy. Again, the facts as alleged indicate that the decedent did not execute her will until after the bank accounts had been transferred, thus, there are insufficient facts to establish that the defendant had knowledge of any expected inheritance. Moreover, there are no allegations from which the court could reasonably infer, that the defendant knew that it was the decedent's testamentary intent at the time of the transfer of the savings accounts, and the naming of defendant as beneficiary, that plaintiffs were to receive 30% of the savings accounts, because the will had yet to be executed.
The plaintiffs have also failed to allege that the defendant interfered by tortious means. Although the plaintiffs have attempted to allege that the decedent was unduly influenced, which allegation this court has previously determined is insufficient, there is no allegation that such influence was committed by an action such as " fraud, duress, defamation or tortious abuse of fiduciary duty, or [that the defendant] . . . forged, altered or suppressed a will or a document making a gift . . ." (Citations omitted; internal quotation marks omitted.) Hart v. Hart, supra, Superior Court, Docket No. WWMCV-14-6007918S. " [U]ndue influence focuses on the mind of the testator and the defendant's control or power over the testator . . . [U]ndue influence in and of itself does not necessarily involve tortious conduct. In other words, a defendant can unduly influence a testator through means that are not tortious. A claim of interference with an expected inheritance, however, must plead tortious conduct as it is one of the necessary elements." Here, the plaintiffs have not sufficiently alleged the tortious conduct element of interference with an expected inheritance. Since the plaintiffs have failed to sufficiently allege elements one through three, they have not established damages. Accordingly, for all of the reasons discussed above, the plaintiffs have failed to sufficiently allege cause of action for IIEI. The motion to strike count three is therefore granted.
" A claim of interference with an expected inheritance may involve undue influence, resulting in the testator being induced to make or not make a bequest or gift, but the undue influence must also consist of tortious conduct (fraud, duress, defamation, etc.) in order to meet the necessary element and be consistent with public policy." Hart v. Hart, supra . influence. The plaintiffs here, as this court has already determined, have not even sufficiently alleged undue influence.
E
Count Four--Conversion
The defendant argues that count four alleging conversion must be stricken because the plaintiffs at best only possessed an expectancy of receiving property at the time the change in beneficiaries was made by the defendant. In support of their conversion claim, the plaintiffs incorporate their prior allegations contained in count one and allege that " [t]he naming of the Defendant, Judy Villa, as beneficiary by the Defendant was conversion of assets that rightfully belong to the estate of the decedent . . . As a result of the Defendant's conversion . . . the Plaintiffs have been damaged in that they have not and will not receive their rightful share of the decedent's estate." Pl. Compl., count four, P12-13.
" The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
Although " [m]oney can clearly be subject to conversion"; Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979); and " money can be the subject of statutory theft"; Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771; a plaintiff must actually " establish legal ownership or right to possession in . . . the specifically identifiable moneys that the defendant is alleged to have converted." Macomber v. Travelers Property and Casualty Corp., supra, 261 Conn. 620, 650, 804 A.2d 180 (2002). " [A]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money . . . It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use." Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 772. " Thus, the requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally . . . A mere obligation to pay money may not be enforced by a conversion action . . . and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied." Id.
Count four of the complaint incorporates paragraphs 1-11 of count one and further alleges that " [t]he naming of the Defendant, Judy Villa, as beneficiary by the Defendant was a conversion of assets that rightfully belong to the estate of the decedent." Pl. Compl., count four, P12. The plaintiffs further allege that they have been damaged by not receiving their rightful share of the decedent's estate. First, as the court previously determined, the plaintiffs have failed to allege sufficient facts to demonstrate that an expected inheritance exists. However, even if the plaintiffs had alleged sufficient facts to demonstrate the existence of an expected inheritance, such " [e]xpectancy is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist. The moment of the decedent's death determines the right of inheritance or testamentary succession." (Citations omitted.) Krause v. Krause, 174 Conn. at 365. Traversa v. Nielson, Superior Court, judicial district of Middlesex at Middletown, Docket No. MMXCV-15-6014026S, (April 5, 2016, Domnarski, J.).
The complaint alleges that the savings accounts were transferred to investment accounts and that the defendant was added as a beneficiary before the decedent's death. Therefore, at the time of the alleged transfer of savings accounts, and the addition of the defendant as beneficiary, the plaintiffs merely had an expectancy of receiving property. Since the plaintiffs had no legal right to the monies at the time of the decedent's death, the fourth count alleging conversion must be stricken. Thus, even if the plaintiffs had sufficiently alleged an expectancy of inheritance, they would only possess an expectation of receiving property at the time the decedent made changes to her bank accounts. The plaintiffs did not have any " legal ownership or right to possession in . . . the specifically identifiable moneys" in those accounts at the time of the decedent's death. Macomber v. Travelers Property and Casualty Corp., supra, 261 Conn. 650, see also, Traversa v. Nielson, supra, Superior Court, Docket No. MMXCV-156014026S. Thus, the plaintiffs' claim for conversion is legally insufficient. The motion to strike count four is therefore granted.
F
Count Five--Statutory Theft
The defendant moves to strike count five of the complaint on grounds that the plaintiffs have failed to allege sufficient facts to establish a claim for statutory theft.
" Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Additionally, " [t]he tort of conversion and the crime of larceny are very similar in that each requires proof that a defendant wrongfully took property owned by another person, although larceny includes an additional element of intent to deprive." State v. Lavigne, 307 Conn. 592, 605 n.10, 57 A.3d 332 (2012). " Nonetheless, to prevail on either claim, the party alleging conversion or statutory theft must prove a sufficient property interest in the items in question." Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 419, 934 A.2d 227 (2007). More specifically, " [a] plaintiff must establish legal ownership or right to possession in the particular thing . . . that the defendant is alleged to have converted." (Internal quotation marks omitted.) Macomber v. Travelers Property and Casualty Corp., supra, 261 Conn. at 650.
For the same reasons set forth in the previous section, the plaintiffs fail to adequately allege a claim for statutory theft because the plaintiffs possessed at best an expectancy, if that, of receiving property at the time the decedent transferred the savings accounts to brokerage accounts and added the defendant as a beneficiary. The plaintiffs did not have any legal ownership or right to possession in the monies in the accounts at the time of the decedent's death. Moreover, the plaintiffs have failed to allege any intentional conduct on the part of the defendant. The plaintiffs merely allege that the defendant, through others, convinced the decedent to name her as a beneficiary on bank accounts owned by the decedent. There are however, no allegations that these changes were made by the defendant herself, or that these changes were made so as to affect which property might pass pursuant to the decedent's will. There are additional allegations that " Frank Villa handled [the decedent's] finances and had access to all of her financial information including her accounts." There are no similar allegations to suggest that the defendant was in control of the decedent's finances and/or had access to all of her financial information including her accounts, or that the defendant made the beneficiary changes to the decedent's accounts. Thus, the plaintiffs fail to sufficiently allege a statutory theft claim because prior to the decedent's death they only possessed at best an expectancy of receiving money. Additionally, they have failed to allege any intentional conduct on the part of the defendant. The motion to strike count five is therefore granted.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to strike the plaintiffs' revised complaint in its entirety is granted.
" Most states that have decided the issue in the inheritance context are in accord with the Restatement's approach. See Diane J. Klein, The Disappointed Heir's Revenge, Southern Style: Tortious Interference with Expectation of Inheritance--A Survey with Analysis of State Approaches in the Fifth and Eleventh Circuits, 55 Baylor L.Rev. 79, 84 n.15 (2003) (reporting that approximately 24 states have recognized 'tortious interference with expectation of inheritance, ' less than 10 states have rejected it, and the rest have not decided); see also Sonja A. Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R.4th 1229, at § 2, 1983 WL 191057 (1983) On those cases in which the courts have expressed a general view as to the propriety of a cause of action for damages for interference with a gift, which include a number of cases involving interference with an inheritance, the courts have generally stated that such a cause of action would lie')." Devlin v. U.S., 352 F.3d 525, 539-40 (2nd Cir. 2003). This court notes that nearly half the states now recognize tortious interference with expected inheritance as a cause of action. See J.C.P. Goldberg & R.H. Sitkoff, 65 Stan. L.Rev. 335, " Torts And Estates: Remedying Wrongful Interference With Inheritance"; with the state of California joining those states in 2012. See Beckwith v. Dahl, 205 Cal.App.4th 1039, 141 Cal.Rptr.3d 142 (2012). " The early, and hence leading, case of Mitchell v. Langley, 143 Ga. 827, 85 S.E. 1050 (1915), in which the plaintiff sued her sister for writing letters to their ill half-brother that wrongfully induced him to cancel a benefit society certificate that had named all three sisters as equal beneficiaries, and for leading him to obtain a new certificate making the defendant the sole beneficiary, stated it thus: 'The fact that this status has not ripened into a vested and irrevocable ownership of the beneficial interest, and that the member has a right to change it, does not authorize a third party to maliciously and fraudulently destroy the status and thus prevent the interest or expectancy of the beneficiary from ripening so that he will receive the fund. The reserved right of the member is one thing; the malicious and fraudulent interposition of a third party to destroy the status is another.' 85 S.E. at 1052. " Further support for our conclusion that one's interest as a beneficiary or heir is sufficient to support liability in tort can be found in the cases dealing with a lawyer's liability to an intended heir for the negligent preparation of a will or other estate-planning device. The privity requirement that once blocked third parties from bringing professional negligence claims has eroded steadily since Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922) (Cardozo, J.), so that, today, an 'overwhelming majority of jurisdictions' recognizes an intended beneficiary's cause of action for the negligent drawing of a will. See Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996) (Cornyn, J., dissenting) (collecting cases and reporting that only four states in addition to Texas do not allow the intended beneficiary to sue). In these cases, the contingent nature of the plaintiff's loss--i.e. the fact that, had the plaintiff been properly named in the will, the testator, before her death, could have revoked the plaintiff's status as an heir and designated another--is given no special attention. " In view of the widespread recognition of liability for tortious interference with an inheritance and of a lawyer's liability to an intended heir--not only now, but at the time Congress used the phrase 'injury or loss of property' in the FTCA--we conclude that the loss that Plaintiff complains of would fall within the meaning of that phrase. It would, that is, if the phrase is to be given a uniform, federal definition." (Emphasis added.) Devlin v. U.S., supra, 352 F.3d 540-41.