Opinion
Nos. CV 05 4005186 S, CV 05 4005187 S
February 5, 2008
MEMORANDUM OF DECISION
The plaintiffs in the above referenced matters have appealed from the Greenwich Probate Court's refusal to authorize a distribution of a portion of the Estate of Mary Jane Watson to Irene Sandford.
Legal Standards
The instant action is a probate appeal. "In an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered. And in the ordinary probate appeal, the superior court decides the matters on which the appeal was taken without regard to the action or decree of the probate court." Prince v. Sheffield, 158 Conn. 286, 294, 259 A.2d 621 (1969).
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Citations omitted; internal quotation marks omitted.) State v. Gordon, 45 Conn.App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998).
Facts
The essential facts are not in dispute. Mary Jane Watson was born on November 20, 1916, and died on February 10, 2000. She was a resident of the Town of Greenwich at the time of her death. She was predeceased by her Hubert Watson.
The plaintiff, Irene Sandford ("Sandford") is a practicing attorney admitted in the State of New York. She is not admitted to practice law in the State of Connecticut.
Although Watson and the defendant Irene Sandford were cousins by marriage, they had a very close familial type of relationship. Watson and Sandford spent many holidays and special occasions together and Watson acted as a surrogate grandmother to Sandford's children. Mr. Watson had died 21 years earlier.
Sandford was related to Watson's late husband who died approximately twenty-one years ago.
On February 5, 2000, Sandford spent the day in the Westchester County Courthouse in an eight-hour training session for court-annexed mediators. She got home around 6:00 p.m. and subsequently a car pulled into her driveway. Sandford's son and his wife were in the car and they informed her that there were people at Watson's home and that they were trying to contact her about Watson. Sandford called Watson's house and spoke to a Mr. Bob Peterson who informed her to come right away because Ms. Watson was not feeling well. Sandford drove to Watson's house with her son. When she arrived at the house she spoke to Peterson and then found Watson in her bedroom. Peterson gave Sandford a pad and pencil and left them alone.
Sandford noticed that Watson had a tremor in her shoulders and hands and felt that Watson had probably suffered from a stroke of some kind.
Watson asked Sandford to draft her will. Sandford informed Watson that she was not a Connecticut attorney and that Watson should go to the hospital or see a doctor. Sandford and Watson eventually agreed that if Sandford drafted the will, Watson would go to the hospital. Sandford then wrote the will by hand.
The credible and believable evidence presented at the hearing did not show that Sandford unduly influenced Watson in the making of the will.
After the will was drafted and executed by Sanford, Sanford and her son accompanied Watson to the hospital. Watson died five days later.
Sandford is admitted to practice law in the State of New York; she is not admitted to practice in Connecticut.
At the time that Sandford drafted Watson's will she knew that she was in the State of Connecticut and that Mrs. Watson was a resident of Old Greenwich, Connecticut and that Watson owned real property in Old Greenwich. Sandford had no idea of what the law was in Connecticut with respect to an attorney drafting a will and she did not attempt to determine what Connecticut law was.
Previously to drafting the will, Sandford had never done legal work for Watson and had no idea that she would be seeing Watson or drafting her will on February 5, 2000.
Prior to the aforementioned date, the last day that Sandford saw Watson was December 25, 1999, when Sandford took Watson to her son's Christmas celebration. Watson's will was admitted to probate on February 5, 2001.
Irene Sandford was named as a beneficiary under the terms of Articles II and III of said will.
Watson J. Metcalf, one of the decedent's heirs-at-law, filed an application with the Greenwich Probate Court seeking an order of distribution holding that the property disposed of under Watson's will should pass in intestacy to Watson's heirs-at-law. On April 30, 2005 the Court issued an order and decree finding in pertinent part that:
In the case at hand, the attorney stands to benefit directly as legatee under a will of the attorney's own drafting. As the nature of such a benefit is greater and more direct, so all so must be the remedy.
Therefore, it is incumbent upon us, and in furtherance of the significant public policy of this state is that an attorney, from whatsoever jurisdiction, who provides a legacy for herself in a will which she prepared for another, is incapable of inheriting thereunder.
Accordingly, the bequest to Sandford has lapsed.
There being no residuary clause in the will, the same must pass by way of intestacy to her sole heir at law, viz. Watson J. Metcalfe.
On May 31, 2005 the plaintiff filed the instant action seeking to appeal the April 30, 2005 order of the Probate Court.
The stated reasons for the appeal in Sanford v. Probate Appeal are as follows:
1. The Court of Probate had no authority to entertain Watson Metcalfe's Application for Order of Distribution.
2. Any right to relief to Watson Metcalfe to disqualify or negate a bequest to Irene Sandford under the will of Mary Jane Watson was and is barred by the doctrine of res judicata.
3. It is not the public policy of Connecticut to require that Irene Sandford forfeit a bequest or legacy under the circumstances of this case.
4. "Public Policy" is not a basis for disqualifying or negating bequests or legacies under Connecticut law.
5. Forfeitures or bequests or legacies in Connecticut are governed by statute, and there is no statutory prohibition against Irene Sandford receiving a bequest or legacy in this case.
6. The order of the Court of Probate was contrary to the facts and to the law of the State of Connecticut.
On August 31, 2005, the court, Rogers, J., consolidated the instant action with Gretchen Pulvermann v. Probate Appeal, D.N. CV 05-4005187.
This court will address the issues raised by the plaintiff in the order that they were presented.
The Court of Probate had no authority to entertain Watson Metcalfe's Application for Order of Distribution And Any right to relief to Watson Metcalfe to disqualify or negate a bequest to Irene Sandford under the will of Mary Jane Watson was and is barred by the doctrine of res judicata.The first two issues raised are interrelated, i.e., the claim that the Probate Court did not have authority is interrelated to the issue of whether or not the doctrine of res judicata bars Metcalfe's request for relief and therefore these issues will be discussed together.
The plaintiff asserts that Metcalfe's Application for Order of Distribution is barred by the doctrines of res judicata and collateral estoppel. She specifically argues that all of the defendants in the subject appeals i.e., Watson Metcalfe, Barbara Fick Mortimer, Julian Blake, Vivienne McCandless and George Boswell Fick were parties to a Probate Court proceeding on February 5, 2001, to admit Watson's will. The plaintiff further argues that all five of these individuals were served with notice of the application and given the opportunity to appear and be heard, however only Watson Metcalfe attended and participated in the proceedings.
Having given this issue a great deal of consideration, this court concludes that it agrees with Judge Nadeau's well reasoned Memorandum of Decision on the Motion for Summary Judgment in this matter and applies it as law of the case and therefore will address the issues on their merits. See Sanford v. Probate Appeal, Judicial District of Stamford/Norwalk at Stamford, d.n. CV 05 4005186 (Mar. 23, 2007, Nadeau, J.).
Public Policy
The plaintiff makes three arguments concerning the public policy implications of the plaintiff benefiting under the will. She asserts that "it is not the public policy of Connecticut to require that she forfeit a bequest or legacy under the circumstances of this case. She further argues that "public policy is not a basis for disqualifying or negating bequests or legacies under Connecticut law." She additionally argues that "forfeitures of bequests or legacies in Connecticut are governed by statute, and there is no statutory prohibition against Irene Sandford receiving a bequest or legacy in this case."
The defendants assert that Sandford is prohibited from benefiting under the will because she violated Rule 1.8(c) of the Connecticut Professional Conduct. In the year 2000, this Rule read that: "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee." The Rules of Professional Conduct, however, do not have the force of law. See Biller Associates v. Peterken, 269 Conn. 716, 722, 849 A.2d 847 (2004). Furthermore, the "Scope" of the Rules of Conduct provides in pertinent part that: "The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule."
The Rule was subsequently amended and said amendment will be discussed below.
In ruling on the aforementioned motion for summary judgment, Judge Nadeau stated that:
In St. Leger's Appeal, 34 Conn. 434 (1867), the court, in the context of a will contest, rejected the argument that a testamentary gift to an attorney who drafts the will is void, per se. Instead, the court noted that the drafting of a will by an attorney beneficiary creates a rebuttable presumption that the attorney exerted undue influence over the testator. Id., 450. There, the court found that "[i]t is not that the mere relation necessarily induces or exerts an undue influence, as the request implies (for all legacies by clients to their attorneys are not presumptively induced by undue influence), but because drawing the will presents an opportunity and a temptation, which, together with the personal friendship and confidence and influence of the relation, justify suspicion and the requirement from the legatee of satisfactory evidence that the opportunity was not embraced and the influence was not exerted . . . We know of no instance where a preventive intervention has ever been advised. Whether the jury should or should not be satisfied, in any particular case, that the bequest was not induced by undue influence, without evidence of the precaution and intervention claimed, it is their province to determine, and the argument that they should not is for them.
Id., 450-51 (emphasis added).
As was recognized and cited by Judge Nadeau in the motion for summary judgment: "A client's valuable gift to a lawyer invites suspicion that the lawyer overreached or used undue influence: It would be difficult to reach any other conclusion when a lawyer has solicited the gift. Testamentary gifts are a subject of particular concern, both because the client is often of advanced age at the time the will is written and because it will often be difficult to establish the client's true intentions after the client's death. At the same time, the client-lawyer relationship in which a gift is made is often extended and personal. A genuine feeling of gratitude and admiration can motivate a client to confer a gift on the lawyer. The rule of this Section respects such genuine wishes while guarding against overreaching by lawyers." Restatement (Third), The Law Governing Lawyers, Conflicts of Interest § 127, comment (b)(2000).
The evidence that was presented at the hearing did not convince this court that the subject bequest was obtained by undue influence.
As to the issue of whether a violation of Section 1.8(c) of the Rules of Professional Conduct violates Connecticut Public Policy, this court notes that it has found that although Sandford and Watson were not related by blood, they did have a close and familial relationship. The original text of § 1.8(c) did not provide for an exception for attorneys who had this type of relationship with their client, however the rule was amended as of date of the trial reads that: " A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship." (Emphasis added.)
This court does not apply the amendment to Rule 1.8 retroactively, but it does use existence of the changes in the amendment in weighing the defendant's argument that the violation of said Rule in this particular case rises to the level of violating public policy.
In addition to the foregoing, this court notes that there was no evidence that the plaintiff in the instant action solicited the testamentary gift in this matter. Based on all of the forgoing, the court finds that Sandford's preparation of the will under the particular circumstances of this case did not violate public policy and the court may not deny the bequest on that basis. The court is concerned however about the fact that Sandford, an out-of-state attorney, did prepare a will in the State of Connecticut. In light of the fact that said action may arise to the unauthorized practice of law in this state, the court will order the Clerk of the Court to forward a copy of this decision to the Statewide Grievance counsel for review and possible action.
Forfeitures or bequests or legacies in Connecticut are governed by statute, and there is no statutory prohibition against Irene Sandford receiving a bequest or legacy in this case.
"The disposition of property by will is a matter for local statutory regulation, and is regulated by our statute of wills . . . The provisions of that statute are not only directory but prohibitory and exhaustive . . . The theory of our statutes is based upon our settled public policy. Certain formalities of execution and attestation are prescribed as prerequisites to the validity of a will, and without compliance with which it is no will at all, although it is clearly a wish . . . So that our statute amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution, or never, so far as the act of the testator is concerned . . . Our law in effect says to every person who would make a valid disposition of his property by will, that he must observe the specified formalities . . . The right to dispose of one's property by will is one conferred by law. The extent of the right, and the conditions under which it may be exercised, are and can be only such as the law prescribes. An expression of will failing to comply with the prescribed conditions is a mere nullity." (Citations omitted; emphasis added; internal quotation marks omitted.) Hatheway v. Smith, 79 Conn. 506, 511, 65 A. 1058 (1907).
This court agrees with Judge Nadeau that "the language used by the court in Hatheway indicates that compliance with the statutes relating to wills permits a party to transfer property at death without interference." This court could find no explicit or implicit statutory prohibition against the plaintiff receiving the bequest under the circumstances of this case.
Lastly this court agrees with Judge Nadeau's analysis of Bird v. Plunkett, 139 Conn. 491, 502, 95 A.2d 71 (1953):
In Bird v. Plunkett, 139 Conn. 491, 502, 95 A.2d 71 (1953), the court, quoting Ames, Lectures on Legal History, p. 312, posed the following rhetorical question: "[W]hen the legislature has enacted that no will shall be revoked except in certain specified modes, by what right can the court declare a will revoked by some other mode?" (Internal quotation marks omitted.) In Bird, the court examined the effect of a statute that precluded an heir or beneficiary, convicted of first or second degree murder of a decedent, from receiving a benefit under that decedent's will. Id., 493. The court held that as the defendant had been convicted of manslaughter rather than murder, the statute did not preclude the defendant from receiving a benefit under the will. Id., 504. In so finding, the court determined that "courts are not warranted in disregarding the course of descent and distribution, or the conclusiveness of duly executed wills, to divert the succession from the murderers of ancestors or testators . . ." (Internal quotation marks omitted.) Id., 498. Further, the court held that "judicial tribunals have no concern with the policy of legislation and that they cannot engraft upon the provisions of the statutes of descent and distribution an exception to bar one who feloniously kills his benefactor from succeeding to the latter's property." Id., 500. The holding in Bird is, oddly, controlling here. As noted, the court cannot disregard the conclusiveness of a duly executed will unless there exists an express exception to the plaintiff's right to take under the will. Bird v. Plunkett, supra. 139 Conn. 498-500. Here, defendants do not maintain that the decedent's will fails to comply with the statutes relating to wills. Instead, they assert that the plaintiff's violation of § 51-88(a) prohibits her from receiving a benefit under the will. Section 51-88(a), however, is not a probate statute. Moreover, nothing in the statute precludes an attorney scrivener from receiving a benefit under a will. As such, it is not an exception that would serve to bar the plaintiff from taking under the decedent's will.
Conclusion
In light of the fact that Irene Sandford, a New York attorney not admitted to the practice of law in this state, prepared a will in this state, and said action may have constituted the unauthorized practice of law, this court orders that the Clerk of this court forward a copy of this decision to the Statewide Grievance counsel for review and possible action.
As to the appeals that are the subject of this action, for all of the foregoing reasons the appeals in Irene Sandford v. Probate Appeal, CV 05 4005186-S and Gretchen Pulvermann v. Probate Appeal, CV 05-4005187 are sustained. So ordered.