Opinion
No. FST CV 05 4005186
Memorandum Filed March 23, 2007
Wills — Nature, Requisites and Validity — Undue Influence — Will Drafted by an Out-of-state Attorney Naming the Drafting Attorney as Beneficiary Is Enforceable, Even Though the Attorney Had Improperly Engaged in an Unauthorized Practice of Law and May Have Violated the Rule of Professional Conduct Governing the Drafting of a Will by an Attorney Who Is a Named Beneficiary of the Will. A New York lawyer who drafted a will in Connecticut for a Connecticut resident that names the lawyer as the beneficiary of a substantial portion of the testator's estate is not barred as a matter of law from receiving a distribution under the will. The testator's heirs unsuccessfully argued that permitting the lawyer to take under the will would violate public policy because (a) the Connecticut Rules of Professional Conduct prohibit an attorney from taking as a beneficiary of a will drafted by the attorney, in the absence of a close family relationship, and (b) the drafting of the will in Connecticut by the New York attorney constituted the unauthorized practice of law.
Judgments — Res Judicata — Misc. Cases — Res Judicata Effect of a Probate Order in a Will Contest Establishing that a Will Is Valid Does Not Bar a Later Challenge to the Right of the Party that Offered the Will to Take as a Beneficiary.
Wills — Nature, Requisites and Validity — Contests-Res Judicata Effect of a Probate Order in a Will Contest Establishing that a Will Is Valid Does Not Bar a Later Challenge to the Right of the Party that Offered the Will to Take as a Beneficiary. The res judicata effect of a probate court ruling upholding the validity of a will offered for probate does not bar a later challenge to the right of the party offering the will to take as a beneficiary, because a will contest is strictly limited to three issues: whether the instrument had been executed with the requisite legal formalities, whether the deceased had testamentary capacity, and whether the instrument was signed free of undue influence. This opinion holds that a probate order upholding a will submitted by a beneficiary who was the attorney that drafted and supervised the execution of the will did not bar a subsequent claim by heirs challenging the right of an attorney to take under a will that names the attorney as a beneficiary, even though the will itself is otherwise valid.
This appeal from Probate involves an attorney from New York who prepared a will for a Connecticut woman, related by marriage, and, in said will, the attorney was a beneficiary. In a challenge by takers under a prior will, the Probate Court admitted this new will. Takers under an older will, in a challenge to the legality of the newly admitted testament, asked the Probate Court to make a distribution of assets to them, according to the rules of intestacy. The Probate Court agreed and plaintiff-attorney appeals.
FACTS
This appeal arises out of facts and circumstances surrounding the will of the decedent, Mary Jane Watson (the decedent). The plaintiff, a New York attorney and relative of the decedent, drafted the decedent's will. In her will, the decedent bequeathed and devised a substantial portion of her estate to the attorney-plaintiff.
This appeal has been consolidated with a companion case, Pulvermann v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005187. The present motion and decision pertains to both actions. (A separate order is being issued in that case, referencing and incorporating this opinion.)
Earlier, this new will was contested by Watson Metcalfe, a beneficiary under the decedent's prior will. However, on February 5, 2001, the Probate Court, Tobin, J., admitted the present will to probate. Metcalfe's subsequent appeal from that decision was denied as untimely.
This ostensible victory for plaintiff-attorney did not last, however.
Thereafter, Metcalfe filed an application with the Probate Court seeking an order of distribution declaring that the gifts to the plaintiff were invalid. On April 30, 2005, the Probate Court, Caruso, J., issued an order and decree declaring that the gifts to the plaintiff failed by operation of law and that those gifts must pass by intestacy to the Metcalfe defendants. This appeal by plaintiff-attorney followed.
Within said appeal, the defendants, Metcalfe, Vivienne McCandless, Julian Blake, Barbara Mortimer and George Fick, filed a motion for summary judgment on the grounds that the gifts to plaintiff fail because plaintiff engaged in the unauthorized practice of law and violated ethical rules governing attorneys. In support, defendants rely upon plaintiff-attorney's admissions to Metcalfe's interrogatories.
The defendants are heirs of the decedent and each defendant stands to receive that portion of the decedent's estate which would pass through intestacy if the gifts to the plaintiff under the later will fail.
The plaintiff filed an objection to defendants' motion along with a deposition transcript, photographs, and copies of pleadings and decisions from this probate action and from previous actions relating to the decedent's will.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Although the deposition transcript submitted by the plaintiff has not been certified, the defendant's failure to object operates as a waiver. Further, the defendants have not objected to the copies of pleadings, orders and decisions submitted by the plaintiff. The defendants do, however, object to the photographs. Whether the photographs are properly before the court is not ruled upon as they do not factor into the court's decision.
The defendants appear to make three arguments as to why the gifts to plaintiff should be declared invalid. First, they argue that the plaintiffs conduct is a violation of public policy, as articulated by rule 1.8(c) of the Rules of Professional Conduct, which would preclude her from receiving under the will. Second, defendants maintain that, as plaintiff's conduct qualifies as the unauthorized practice of law, in violation of General Statutes § 51-88(a), she is also prohibited from receiving benefit. Finally, defendants assert that plaintiffs overall conduct prevents her from "seeking judicial aid to order distribution."
In response, plaintiff maintains that the issues in the present case are barred by the doctrine of res judicata as those issues were before the court during the initial will contest at which the will she authored was admitted to Probate. Alternatively, plaintiff argues that, absent a specific exception to the laws of descent and distribution, this court may not invalidate a be-quest or devise.
"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.) Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988). "The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo . . . Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the [P]robate [C]ourt, the [S]uperior [C]ourt should exercise the same power of judgment which the [P]robate [C]ourt possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the [P]robate [C]ourt." (Citations omitted; internal quotation marks omitted.) Id.
"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 [P]robate court, whether or not it was actually offered . . . In the traditional appeal, the scope of review is limited by the issues raised and the supportive evidence submitted in the lower court. In an appeal from probate, however, the informalities of the probate proceeding are corrected by permitting a full hearing in which new evidence may be submitted . . . This court has gone so far as to allow the admission of evidence not even in existence at the time of the probate hearing." (Citations omitted; internal quotation marks omitted.) Flor v. Pohl, 95 Conn.App. 555. 560, 889 A.2d 46 (2006).
RES JUDICATA
"[C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits." (Internal quotation marks omitted.) LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 590, 898 A.2d 803 (2006). "[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . [or any claim based on the same operative facts that] might have been made." (Emphasis in original; internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 723-24, 716 A.2d 922 (1998).
"[O]n an appeal from the probate of a will the issue is strictly whether there is a valid will. 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." Gugliotti v. Probate Court, Superior Court, judicial district of Waterbury, Docket No. CV 02 0169590 (May 7, 2002, Wolven, J.).
In the present case, defendants' claim is not based on the ground that the will is invalid. Instead, the defendants filed an application for an order of distribution under General Statutes § 45a-98(a)(4), basically asserting that the court below cannot honor the otherwise valid, un-coerced will. Further, it is traditional that the court's power to order distribution arises after a will has been admitted to probate. See Mack's Appeal, 71 Conn. 122, 41 A. 242 (1898). The court believes that defendants' motion is not barred by res judicata and that this court should consider the merits, in some significant measure because we are in a de novo setting.
General Statutes § 45a-98(a)(4) provides that "[c]ourts of probate in their respective districts shall have the power to . . . 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 . . ."
RULE 1.8(c)
Rule 1.8(c) of the Rules of Professional Conduct provides, in relevant part, 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." 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). Indeed, the Rules state that "[t]he 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." As such, whether the plaintiff violated the rule is not determinative.
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." (Emphasis added.) Id., 450-51.
In the present case, granting the defendants' motion, as it relates to the plaintiff's status as an attorney scrivener, would impose a per se rule invalidating testamentary gifts to attorneys, in disregard of the court's holding in St. Leger's Appeal. It is of little importance that the court's ruling in that case took place in the context of a will contest, for the position advocated by the defendants in this case would tender the holding in St. Leger's Appeal meaningless. This court, therefore, should not automatically void testamentary gifts to an attorney who drafts a will in violation of rule 1.8(c) of the Rules of Professional Conduct.
"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).,
It should be noted, however, that the court's decision does not suggest for attorneys the unbridled freedom to write themselves into wills. Indeed, the presumption of undue influence protects against the attorney scrivener who wrongly names herself as a beneficiary. Further, an attorney who drafts a will in which she is a named beneficiary exposes herself to disciplinary action under rule 1.8(c) of the Rules of Professional Conduct.
Additionally, the defendants' reliance upon Andrews v. Gorby, 237 Conn. 12, 675 A.2d 449 (1996), in support of their position that public policy precludes the plaintiff from receiving a benefit under the will, is misplaced. In Andrews, the court determined that public policy precluded the defendant, an attorney who both drafted the will and served as the executor, from collecting unreasonable fees in his capacity as the executor of the decedent's will. Id., 22. Such a holding has no bearing upon whether, in the present case, the court may invalidate a bequest or devise based upon the plaintiffs conduct. In Andrews, the court found that "although ostensibly the plaintiff was not a beneficiary under the will, compensation in excess of that which is reasonable is . . . the functional equivalent of a bequest to the plaintiff. If the testator had wanted to make such a bequest to his attorney who drafted the will, he would have so provided in the will. Therefore, we conclude that the testator intended to provide a measure of reasonable compensation for the executor, and not a bequest." (Internal quotation marks omitted.) Id. While this language seems to support the proposition that such a bequest would be valid, the language is dicta, and, as such, the court should not rely upon it.
Finally, even if the court were persuaded by the defendants' argument that gifts received in violation of rule 1.8(c) of the Rules of Professional Conduct are invalid, the subject of plaintiff's relationship with the decedent appears to contain a genuine issue of material fact. First, the most recent version of the Rules of Professional Conduct adds the following language to rule 1.8(c): "[F]or purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or client maintains a close, familial relationship." In the present case, plaintiff is said to have been related to the decedent by marriage. Further, plaintiff has submitted evidence showing that plaintiff and the decedent maintained a close friendship. Accordingly, there is a material issue of genuine fact as to whether the plaintiff and the decedent maintained "a close, familial relationship."
Further, even if the court were to apply the Rules of Professional Conduct in existence at the time the plaintiff drafted the decedent's will, the Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 90-20 (1990) provides that "while the language of Rule 1.8(c) itself does not mandate it, a lawyer should, in keeping with the principles underlying the rule, give careful consideration to the specific facts in a given situation and use good judgment and sensitive discretion in determining the latitude the language permits in that context. In anything but the most hospitable circumstances, a lawyer should probably read `related' in the exception to Rule 1.8(c) as limited to . . . the relationship of parent, child, sibling or spouse . . ." The plaintiff was related to the decedent by marriage. Further, the defendants have not submitted any evidence illustrating the nature of the circumstances under which the will was drafted. Accordingly, there remains an issue of material fact as to whether the plaintiff exercised "careful consideration to the specific facts" in this situation, and whether the circumstances presented qualify as "hospitable."
The Rules of Professional Conduct that were in effect at the time the plaintiff drafted the decedent's will did not define the term "related."
UNAUTHORIZED PRACTICE OF LAW
Section 51-88(a) provides, in relevant part, that "[a] person who has not been admitted as an attorney under the provisions of section 51-80 shall not . . . [p]ractice law or appear as an attorney-at-law for another, in any court of record in this state . . ." In the present case, the plaintiff has not been admitted to practice law in Connecticut. Nevertheless, even if the defendants are correct in asserting that the plaintiff violated § 51-88(a), such a violation does not preclude the plaintiff from receiving a benefit under the decedent's will.
"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).
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. Indeed, 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.
Traditionally, "the statutes of descent and distribution" regulate only intestate estates. See Zdanowich v. Sherwood, 19 Conn.Sup. 89, 92, CT Page 8517 110 A.2d 290 (1954). Nevertheless, in Bird, the court applies the phrase to both testate and intestate estates alike. Indeed, the court's use of the word "benefactor" requires this interpretation. Bird v. Plunkett, supra, 139 Conn. 500. Although "benefactor" is not defined in Black's Law Dictionary, Merriam-Webster defines "benefactor" as "one that confers a benefit; especially: one that makes a gift or bequest." Merriam-Webster's Collegiate Dictionary (9th Ed. 1987). Black's Law Dictionary defines "bequest" as "[a] gift . . . by will of personal property, a legacy." Black's Law Dictionary (6th Ed. 1990). Accordingly, the Bird court's use of the phrase "statutes of descent and distribution" is modified by its use of the word "benefactor," and thus refers to both the statutes that control intestate distribution and the statutes that control the transfer of testate property.
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 plaintiffs 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.
Moreover, the defendants' reliance upon Perlah v. S.E.I Corp., 29 Conn.App. 43, 612 A.2d 806 (1992), is also misplaced. There, plaintiff sought compensation for legal work performed before he was admitted to practice in Connecticut. Id., 44-45. The court held that plaintiff could not recover compensation for the work that he performed in violation of § 51-88(a). Id., 48. In the present case, the plaintiff is not seeking compensation for the practice of law. Rather, the plaintiff seeks to receive a bequest and devise as provided in the decedent's will. As defendants do not argue that the gifts to plaintiff were made to compensate her for the practice of law, Perlah is inapposite.
Alternatively, even assuming that a violation of § 51-88(a) can serve to invalidate the decedent's gift to the plaintiff, there remains a genuine issue of material fact as to whether the plaintiff's conduct qualifies as such a violation. Plaintiff does not concede that she violated the statute. Additionally, the defendants have not submitted any evidence indicating that the plaintiff has been sanctioned by the state grievance committee, nor have the defendants shown that she has been adjudicated in violation of the statute by any other authority. As such, it would be premature for this court at this stage to find that the plaintiff did, in fact, violate § 51-88(a).
THE PLAINTIFFS OVERALL CONDUCT
Finally, the defendants assert that the plaintiffs overall conduct precludes her from "seeking judicial aid to order a distribution." This argument, however, is also precluded by Bird, where the court rejected the argument that "the ancient maxim that no one shall be allowed to profit by his own wrong" prevented the defendant from receiving a benefit under the decedent's will. Bird v. Plunkett, supra, 139 Conn. 496. It should be noted that, although the defendants assert that the plaintiff's overall conduct prohibits her from taking under the decedent's will, they offer little by way of support for their position. Further, as noted, the defendants have not demonstrated the absence of any genuine issue of material fact with respect to either rule 1.8(c) of the Rules of Professional Conduct or § 51-88(a). Accordingly, the plaintiffs so called "overall conduct" should not bar her from receiving a benefit under the decedent's will.
For all of the foregoing reasons, the moving defendants are denied summary judgment. The appeal may proceed to its de novo presentation.