Opinion
Nos. FBT CV 030400636, FBT CV 020390149, FBT CV 030399970
October 19, 2005
MEMORANDUM OF DECISION
In the first of these consolidated actions, the children of Catherine Scinto have filed an appeal from the decision of the Probate Court for the Town of Trumbull. The plaintiffs have challenged the order that admitted Catherine Scinto's Last Will and Testament and, in particular, that provision which bequeaths her real estate to the defendant, her daughter, Shirley Ann Scinto. The appeal claims that the deceased was of unsound mind and memory and lacked sufficient testamentary capacity to make and execute a will; and (2) that the statutory requirements of due execution were not proven by a fair preponderance of the evidence.
In the second action, the plaintiffs have challenged the validity of a quit claim deed wherein Catherine Scinto conveyed property to her daughter, Shirley Ann. Once again the plaintiffs have alleged that the deceased was of unsound mind and memory and lacked sufficient testamentary capacity to make and execute a deed; and (2) that the statutory requirements of due execution were not proven by a fair preponderance of the evidence.
In the third and final of these actions, the plaintiffs have filed an action wherein they have alleged that Ralph Matire, present when the decedent executed a will and again when she executed a deed, failed to properly fufill his role as a notary public. This action had been consolidated with the probate appeal.
The plaintiffs failed to present evidence sufficient to establish either a duty or a breach of that duty. This action is therefore dismissed.
I. Facts of the Case
From the testimony and evidence presented, the court finds the following facts.
Catherine Scinto died as a result of complications from lung cancer on March 12, 2001. Seven children survived her, one of whom was Shirley Ann Scinto, a defendant in this action. Prior to her death, the decedent and her daughter Shirley lived together at 38 Chatfield Drive in Trumbull, Connecticut.
The decedent was aware of the cancer in late November 2000. From that date forward, the decedent was physically weak and in pain. Although suffering, she was mentally competent. Upon receiving her diagnosis, the decedent expressed her desire to change her will. The purpose of that will has to bequeath her property to her daughter Shirley.
When decedent received the diagnosis she already had a will through which each of her children would receive an equal share of her estate.
This court finds that the decedent repeatedly expressed her desire to give Shirley the Chatfield Drive property. The fact that the decedent did not articulate that desire every moment of every day during the last months of her life is not relevant. At the time she executed her will, and again at the time she executed a quit claim deed, that desire was manifest.
In order to save money, rather than consult an attorney Shirley Ann Scinto purchased a will form at a local stationery store. Under her mother's direction, Ms Scinto prepared the will and arranged for the execution of the same. Ms Scinto admitted she did not know how to execute a will. Had she consulted with an attorney prior to that event she would have realized the need for a more formal execution process.
On Saturday evening, December 30, 2000, Jennifer LeStrange arrived at the Chatfield Drive house. When she signed the will Ms LeStrange was, neither in the presence of the notary nor in the presence of the other witnesses. Furthermore, large segments of the will were blank at that time. The decedent had not yet signed the will. August Adams and Elaine Cullen, other witnesses, also signed the will on that date. They signed before Ms LeStrange had affixed her signature.
The notary was unable to travel to the Scinto home that evening. As a consequence, the parties re-scheduled the will execution for the following morning. Ms Lestrange was unavailable that Sunday morning.
The following day, New Year's Eve, August Adams and Elaine Cullen returned to the Chatfield Drive property. Also there was Ralph Martire, a notary public. Once again, the will execution was not a model procedure. The witnesses had signed the document the previous evening. Mr. Maitre brought the will to the decedent in an adjoining room. There is no credible evidence that the "witnesses" could see or hear the decedent.
There are 2 versions of the will that were admitted as evidence, one with a notary seal and one without. Both are certified copies.
The witnesses were seated round a kitchen table. The decedent was lying or resting on a sofa in an adjoining living room.
Although Mr. Martire asked the decedent whether she was aware of the nature of the document and whether the execution of that document was her free with this court finds that the will had not been fully completed at that time. Mr. Maitre did not discuss the contents of the document with the decedent. As he repeatedly testified, he was there solely in his capacity as a notary. Mr. Martire notarized the signatures of all witnesses, including that of Ms. LeStrange despite the fact that he had not verified their signatures. Indeed Ms Lestrange she was not present that morning. The date on the document was incorrect.
Mr. Martire was also a defendant in the action.
On January 2, 2001 the decedent entered the hospital for surgery related to her cancer. She was anxious and in pain. The decedent received several medications. There is no evidence that any of these diminished her competency.
In February 2001 the decedent returned to the hospital. While there she asked family members to prepare a quit claim deed wherein she transferred all interest in the Chatfield Drive home to her daughter. Elaine Cullen and a hospital visitor witnessed the decedent's signature. Mr. Maitre notarized the same. At the time of this transaction, Shirley Scinto was not in the hospital room. However, Daniel Scinto, Jennifer LeStrange and Darlene Scinto were present.
The plaintiff's claim that the purpose of the quit claim deed was an attempt to divest the decedent of assets in order to facilitate her procurement of governmental assistance. Although some of the participants I may have articulated this desire, there is no evidence that the decedent expressed any such motive.
Although the decedent was in pain at the time she executed the deed, she was sitting in a chair and having conversations with her various visitors. She was alert, cognizant of her surroundings and aware of the nature of her actions.
This court discredits Ms. Cullen's testimony wherein she stated that the decedent was so weak that she needed assistance to hold the pen while she signed the document. This court also rejects the suggestion that the decedent was either delirious or over-medicated. She certainly was receiving pain medication but this did not impact upon her mental capacity.
II. Discussion A. Probate Appeal.
"An appeal from probate is not so much an "appeal" as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations. Although the Superior Court may not consider events transpiring after the Probate Court hearing; it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered." (Internal citations and quotation marks omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991). The proponents of a will bear the burden of proof as to due execution. Id.; Berkowitz v. Berkowitz, 147 Conn. 474, 162 A.2d 709 (1960); Wheat v. Wheat, 156 Conn. 575, 244 A.2d 359 (1968).
"Because the offer for probate of a putative will is in essence a proceeding in rem the object of which is a decree establishing a will's validity against all the world . . . the proponent must at least make out a prima facia case that all statutory criteria have been satisfied even when compliance with those criteria has not been contested." (citations omitted; internal quotations omitted). Garder v. Balboni, 218 Conn. at 225. The proponent must establish, by a preponderance of the evidence, due execution and testamentary capacity. Trella v. Prestof, 128 Conn. 337, 22 A.2d 638 (1941).
1. Testamentary Capacity
The defendants have challenged the decedent's capacity at the time she executed her will. "The fundamental test of the testatrix's capacity to make a will is her condition of mind and memory at the very time when she executed the instrument. While in determining the question as to the mental capacity of a testator evidence is received of his conduct and condition prior and subsequent to the point of time when it is executed, it is so admitted solely for such light as it may afford as to his capacity at that point of time and diminishes in weight as time lengthens in each direction from that point." (citations omitted; internal quotations omitted) Zotter v. Zotter, No. CV00-0502717S, Superior Court, Judicial District of New Britain at New Britain (April 16, 2002, Quinn, J.) ( 32 Conn. L. Rptr. 81).
"The burden of proof in disputes over testamentary capacity is on the party claiming under the will. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367 (1978). While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity." Knox's Appeal from Probate, 26 Conn. 20, 21 (1857). In this case the capacity questioned is that of making a will that effectively transferred the decedent's entire estate to her daughter Shirley.
The most relevant evaluation of the decedent's testamentary capacity in this case would have been just prior to the execution of the will. Our Supreme Court has stated "that it is the precise moment that is important. Jackson v. Waller, 126 Conn. 294, 302, 10 A.2d 763 (1940). In the present case, all evidence indicates that the decedent, although in pain, was lucid and aware of the nature of her actions. Several witnesses testified that she had "the mind and memory sound enough to know and understand the business upon which [she] was engaged." Stanton v. Grigley, 177 Conn. 558, 418 A.2d 923 (1979). Under all the facts adduced at trial, including the medical records submitted for this court's review, this court concludes that the decedent had the requisite testamentary capacity to execute a will.
The fact that the decedent was seriously ill does not negate her actions at the time she signed her will. As indicated by Ralph Matire, the notary public, the decedent was awake, aware that she was signing a will, and voiced her approval where appropriate. This court cannot find a lack of testamentary capacity. See Denison v. Estate of Flanagan, No. CV 97 0406971 S, Superior Court, Judicial District of New Haven at New Haven (September 22, 2004, Skolnick, J.)
2. Undue Influence
The plaintiffs have claimed that the defendant Shirley Scinto exerted undue influence upon her mother, thus causing the decedent to alter the contents of her will. Unfortunately, the fact that all other children were excluded from the final will and testament is not standing alone, evidence that the decedent had been coerced or that she had a diminished capacity.
"In a will contest wherein lack of capacity or undue influence has been raised, the court must determine whether the document presented as the last will and testament of such a deceased person is really such." Undue influence sufficient to invalidate a will is the degree of influence necessary to be exerted over the mind of the testator to render it improper, [and] must from some cause or by some means be such as to induce him to act contrary to his wishes, and to make a different will and disposition of his estate from what he would have done if left entirely to his own discretion and judgment. That his free agency and independence must have been overcome, and that he must, by some dominion or control exercised over his mind, have been constrained to do what was against his will, and what he was unable to refuse and too weak to resist. But that moderate and reasonable solicitation, entreaty or persuasion, though yielded to, if done intelligently and from a conviction of duty, would not vitiate a will in other respects valid . . . Subsequently [our Supreme Court] reiterated the above principle an amplified it as applied to a case where there was no direct evidence of undue influence, in these words: It is conceded that no direct evidence of undue influence was adduced, and none was necessary, provided the foundation was laid for a reasonable inference that the will was not such as the testator would have made, if left entirely to his own discretion, and that his free agency and independence had been overcome, so that he was constrained to do what he was unable to refuse and too weak to resist . . . On the other hand, the rule which dispenses with the necessity of direct proof of undue influence, does not relieve the contestant from the burden of laying a safe foundation of material facts proven, and inferences which fairly and convincingly lead to that conclusion." (Citations omitted; internal quotation marks omitted.) Laroeque v. O'Connor, 90 Conn.App. 156, 165-66, 876 A.2d 1229 (2005).
In certain circumstances, a presumption of undue influence arises. Such a circumstance is when the natural object of the testator's bounty is excluded from participation in his estate and a stranger who has a confidential relationship with the testator supplants the natural object of his bounty. In such a case, the proponent of the will must disprove by "a clear preponderance of the evidence the affirmation of the actual exercise of undue influence by such beneficiaries of the will." Lockwood v. Lockwood, 80 Conn. 513, 521, 69 A. 8 (1908). A testator's "natural objects of his bounty are those who will take in the absence of a will, the next of kin." Page v. Phelps, 108 Conn. 572, 143 A. 890 (1928).
In the present case the court specifically finds that Shirley did not occupy a position of confidence with her mother, nor was she a member of a class of people who might otherwise occupy a position of trust by virtue of their profession, such as a lawyer or doctor. Other than the fact that Shirley lived with the decedent and was part of a mother-daughter combination, there is no other relationship. Furthermore, there is ample evidence that the decedent was a capable, knowledgeable adult who wished to leave the family home to the daughter with whom she resided.
"Pressure of whatever character, whether acting on the fears or hopes — if so exerted as to overpower volition without convincing the judgment — is a species of constraint under which no will can be made. Importunity or threats, such as the testatrix has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort — these, if carried to a degree in which the free play of the testatrix's judgment, discretion, or wish, is overborne, will constitute undue influence, though no force was either used or threatened. The existence and exercise of such undue influence is not often susceptible of direct proof. It is shown by all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind, and of body as affecting her mind, her condition of health, her dependence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence. Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive proof of the existence and exercise of such an influence." Hobbes' Appeal, 73 Conn. 462, 467, 47 A. 678.
The court finds, based on the totality of the evidence and the facts previously set forth, that the plaintiffs have failed in their attempt to establish undue influence. The decedent was an alert, active, albeit seriously ill individual. She was neither totally dependent upon her daughter Shirley nor vulnerable to influence by her daughter. Her actions, although done during the final stages of her life, were nevertheless voluntary. She had expressed her desire to transfer this property on several occasions prior to her death. The fact that she did not tell all her children of this desire is not controlling.
3. Will Execution
The Connecticut requirements for a valid will are found in Connecticut General Statutes 45-160 and 45-161. These statutes permit a will execution by any person over the age of eighteen years and of sound mind. The decedent's testamentary capacity has been addressed earlier. They also outline the due execution of valid wills. Connecticut General Statues 45-161 provides in pertinent part that "[n]o will or codicil shall be valid to pass any estate unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in his presence." "Since the power to dispose of property by will is a privilege and not a right, one seeking to avail himself of that privilege must conform in all respects to the conditions upon which the privilege is granted." (Citations omitted.) Wheat v. Wheat, 156 Conn. 575, 580, 244 A.2d 359 (1968).
In the present case, there was a great deal of testimony concerning chronology of this will execution. That testimony, in large part, ignores the fact that the "will" was largely blank at the time it was witnessed. "Under the express terms of our statute, it is the will which must be attested, not the signature of the testator, as such. Attestation is required in order that the attesting witnesses can testify to those things essential under our statutes for admission of the will to probate." Wheat, 156 Conn. at 583. This is not the scenario in Pope v. Rogers, 93 Conn. 53, 55, 104 A.2d 241 (1918), a case wherein "there is no claim that the typewritten matter was not all on it when the testatrix and the attesting witnesses signed it."
This is not a situation wherein through inexperience or lack of attention the witnesses have failed to testify as to an essential element. The credible testimony is that the witnesses all signed a blank document on Saturday evening. Two returned the next morning at which time the decedent, in a separate room, signed the same document. The notary admitted that he never read the document. There is no testimony that it was completed before all the requisite signatures.
The defendant relies in large part on the testimony of the notary, claiming he is a disinterested party. To the contrary, he is the defendant in the third action and therefore can hardly be categorized as neutral.
"[I]f the attesting witnesses are to be able to carry out their function, they must at least have the opportunity of seeing the testator's signature on the will where, as here, they do not see him sign. Otherwise, they could not attest that the signature was affixed prior to any attestation, as is required for a valid execution in Connecticut." Wheat. There is no proof that the decedent's signature antedated the attestation, nor is there proof that the will was complete prior to the attestation.
"Indeed, the instant case is an excellent example of the trouble, litigation and expense flowing from attempts of a layman to execute, or supervise the execution of, a will without competent, informed, legal assistance." Wheat, 156 Conn. at 587 n. 5. All statutory requirements were not met.
The plaintiff's probate appeal is sustained.
B. Deed Conveyance
In the third and final action in these consolidated cases, the plaintiffs have alleged that the decedent lacked the mental capacity to quitclaim the Chatfield Drive property to her daughter Shirley. They have also alleged that if there was a transfer, the decedent's reason for the transfer nullified the transactions. Both arguments fail.
Turning to the question of mental capacity at the time the decedent executed this deed, "In considering the matter of mental incompetency, it must be acknowledged that mental impairments admit of a wide variety of conditions of varying degrees of severity, depending upon the particular case . . . The words "mentally incompetent" have no strict technical meaning; they do not necessarily mean that the person to whom they are applied is an idiot, or non compos mentis; they merely indicate a relative, and not an absolute, lack of mental ability. Thus, an individual may be competent for one purpose but not for another . . . The test of [a grantor's] mental capacity to make . . . deeds . . . [is] whether at the time of executing them he possessed understanding sufficient to comprehend the nature, extent and consequence of them." (Citations omitted; internal quotations omitted.) Whittemore v. Neff, No. 064348, Superior Court, Judicial District of Windham at Putnam (June 11, 2001, Foley, J.) ( 29 Conn. L. Rptr. 651).
Both parties presented evidence from various relatives and friends in an attempt to show their feelings and opinions as to the decedent's intent as to the home over a period of several years. None affected the core issue, the decedent's state of mental health at the time she executed the deed. More relevant, in the present case the plaintiffs have alleged mental impairment based upon the decedent's level of medication, her references to celestial visions and her general weak nature.
The documents and testimony presented indicate that the decedent's mental health was good. This finding certainly does not diminish the decedent's suffering nor does it ignore her emotional upheaval. It simply is a finding that the decedent's mental health was fine, even if her general health and motor skills were diminished. The court is convinced that the decedent freely, knowingly and personally signed the deed of the property over to her daughter Shirley. The court is not convinced by the testimony of plaintiff's witnesses as to the decedent's lack of ability to use her hands or sign her name in a knowing manner. The plaintiff has completely failed to prove the allegations in the complaint by any documentary evidence, credible testimony or physical evidence.
Our Supreme Court has said that "The test of [a grantor's] mental capacity to make the deeds . . . was whether at the time of executing them he possessed `understanding sufficient to comprehend the nature, extent and consequence' of them. The occasion on which a person deeds away her interest in her lifelong home is a serious one, which, in this instance, was witnessed and acknowledged in a quitclaim deed. "An acknowledgment is the formal declaration, before an authorized official, by the person who executed an instrument that it is his free act and deed." Twichwll v. Guite, 53 Conn.App. 42, 728 A.d 1121 (1999).
Thus courts have acknowledged that there is a wide variety of potential infirmities, but not all invalidate deeds. Here there is no evidence that the decedent's terminal cancer affected her execution of a quit claim deed.
Not is there any evidence that the deed was temporary in nature. There was nothing tentative or conditional about this conveyance. It mirrored the ill-fated attempt to transfer the property through a will. The plaintiff's efforts to invalidate the conveyance are denied.
So Ordered.