2020 Developments in Conn. Estate & Prob. Law

• Publication year: 2009
• Citation: Vol. 94 Pg. 348
• Pages: 348

2020 DEVELOPMENTS IN CONNECTICUT ESTATE AND PROBATE LAWNo. 94 CBJ 348Connecticut Bar Journal2024

By Jeffrey A. Cooper,^[*] John R. Ivimey^[**] and Katherine E. Mulry^[***]

This Article provides a summary of recent developments affecting Connecticut estate planning and probate practice. As there were no significant legislative developments in 2020, this article will focus on 2020 case law relevant to the field.

A. Wills and Trusts

1. Powers of Appointment

In Benjamin v. Corasaniti,^[1] the superior court ruled that a decedent could validly exercise a testamentary power of appointment in favor of a previously unfunded trust.

The decedent was the beneficiary of two trusts, one of which was governed by Connecticut law.^[2] He held a testamentary power of appointment over the trust corpus.^[3] Prior to his death, he established a charitable trust and thereafter executed a will exercising his power of appointment in favor of the charitable trust.^[4] The charitable trust was not otherwise funded during the decedent's life.^[5]

After the decedent's death, the defendants successfully petitioned the probate court to validate the exercise of the power of appointment in favor of the charitable trust notwithstanding the fact that the trust had not been funded during the decedent's life.^[6] The plaintiffs appealed that decision to the superior court, which affirmed the probate court ruling.^[7] As of this writing, the matter is on further appeal before the Connecticut Supreme Court.^[8]

In affirming the probate court, the superior court rejected three major arguments put forth by the defendants.

First, the court held that the charitable trust was valid even though not funded prior to the decedent's death.^[9] In reaching this result, the court conceded that Connecticut law specifies that a trust must have trust property in order to be valid.^[10] Nevertheless, the court reasoned that "[m]odern practice has evolved," to validate unfunded trusts in many circumstances, a position endorsed by the Restatement (Third) of Trusts.^[11] The court thus found the charitable trust valid.

Second, the court held that Connecticut's version of The Uniform Testamentary Additions to Trusts Act (UTATA), codified at General Statutes Section 45a-260, validates the exercise of a power of appointment in favor of an unfunded trust.^[12] While the plaintiffs contended that the text of UTATA provides only that a decedent may validly "devise or bequeath" property to an unfunded trust, and does not explicitly address the exercise of a power of appointment, the court rejected this "narrow reading of the statute."^[13] In reaching this result, the court seemed particularly influenced by its review of the 1960 "legislative history" from the UTATA Drafting Committee, finding that the drafters of the uniform act explicitly envisioned that it would cover exercises of powers of appointment.^[14] Citing prior Supreme Court precedent, the court interpreted Connecticut's version of UTATA in a manner consistent with the intent of the drafters of UTATA.^[15]

Third, the court held that Connecticut's recently enacted version of the Uniform Trust Code also applied to validate the exercise of the power of appointment.^[16] In this regard, the court ruled that General Statutes Section 45a-499v explicitly provides that a "trust may be created by ... (3) the exercise of a power of appointment...," and that General Statutes Section 45a-487t provides for this provision to operate retroactively.^[17]

2. Definition of "Per Stirpes"

In Schwerin v. Ratcliffe,^[18] the Supreme Court considered how to compute the shares of trust property payable to the grantor's "issue then living, per stirpes" under Connecticut law. The court held that the phrase required an initial division of the property into shares for each of the grantor's children, even though none of them would be alive at the time of distribution.

At issue were two trusts established over fifty years ago.^[19]Both trusts will terminate upon the death of the last to survive of specified issue of the grantor, only three of whom are still alive.^[20] The plaintiffs brought a declaratory judgment action in the superior court, arguing that since the grantor's three children are deceased, the phrase "issue then living, per stirpes" should be interpreted to require an initial division into shares for each of the grantors' six grandchildren. The defendants countered that the initial division should be made at the level of the children, notwithstanding the fact that all of them are deceased.^[21] The trial court agreed with the defendants and granted their motion for summary judgment.^[22] An appeal ensued, and the Supreme Court affirmed.^[23]

In reviewing the case, the Supreme Court noted that prior case law established that when making a per stirpital division in Connecticut, "the initial division is to be made into as many shares as there are members of the first generation...."^[24] The Court noted that this approach is consistent with Connecticut's intestacy laws,^[25] and embraced by both the Restatement (Second) of Property^[26] and the Uniform Trust Code.^[27]

The Court further held that the grantor's use of the words "then living" did not affect this general rule. The court reasoned that the words "then living" merely identified who would take the trust property upon termination and not the method of computing their shares.^[28] While finding no Connecticut appellate authority on point, the Court found support for this position in a Massachusetts Appeals Court case construing a similar phrase.^[29]

3. Will Execution

In In Re Harris,^[30] the superior court admitted a will to probate even though the witnesses had signed the self-proving affidavit rather than the will itself.

In reaching this result, the court relied extensively upon the Supreme Court's 1991 opinion in Gardner v. Balboni,^[31]in which the Court admitted to probate a will even though the testator had signed the self-proving affidavit rather than the will itself.^[32] A linchpin of the Gardner court's opinion had been that our probate statues require only that the testator "subscribe" their will, a term the court defined to require a signature anywhere "underneath" the will rather than at the end of its text.^[33] A signature made below the intervening language of the self-proving affidavit thus meets this requirement.^[34] The court in this case extended the logic of Gardner to the situation where the witnesses, rather than the testator, were the ones who signed the affidavit rather than the will.^[35]

In reaching its decision, the court held that the witnesses' signatures complied with the formal statutory requirements for a will execution. The court thus did not consider the extent to which a curative doctrine such as harmless error might be operative to excuse a defective will execution.^[36]

4. Malpractice

In Wisniewski v. Palermino,^[37] tire superior court considered whether the intended beneficiaries of a decedent's estate had standing to bring a professional negligence and contract claim against the decedent's estate planning attorney.

The decedent's attorney prepared a Will that left an investment account in five equal shares to his three grandchildren and two other beneficiaries.^[38] Upon the decedent's death, the investment account passed to only one of the beneficiaries pursuant to a beneficiary designation on file for the account.^[39] The plaintiffs, who were several of the beneficiaries named in the Will, alleged that the attorney advised the decedent that nothing else needed to be done to accomplish the distribution of the investment account to the beneficiaries under the Will.^[40]

The defendant, the attorney and his law firm, moved to dismiss the claims on the grounds that the plaintiffs lacked standing because they were not in privity to the decedent's relationship with his attorney.^[41] The court reviewed several Connecticut cases regarding third-party liability for an attorney's malpractice and noted that the courts have been reluctant to expand third-party liability. Specifically in this regard, the Court cited Leavenworth v. Mathes, in which the Connecticut Appellate Court held that third-party liability for testamentary dispositions is limited to "errors in the drafting and execution of the wills."^[42] The Court accordingly dismissed the negligence claim on the grounds that it did not relate to a drafting or execution error.^[43]

In contrast, the Court denied the motion to dismiss with respect to the contract claim. The Court found that the plaintiffs had sufficiently pleaded that they were intended third-party beneficiaries of the contract between attorney and client and that they were damaged when the Will was not drafted as requested.^[44]

B. Estate and Trust Administration

1. Domicile

In Francois v. Pooled^[45] the United States District Court for the District of Connecticut found that a decedent remained domiciled in the probate court district in which he had previously maintained his primary home even though he resided in another state at the time the action was filed.

This case involved a husband and wife who were in the process of getting a divorce.^[46] The plaintiff, the husband, sued his soon-to-be ex-wife in federal court, alleging state law claims by invoking diversity jurisdiction.^[47] The wife argued that diversity jurisdiction was lacking because she and her husband were both domiciled in Connecticut.^[48] The plaintiff countered that he was domiciled in New York where he lived at the time that he filed the action.

In arguing that he was a domiciliary of New York, the plaintiff conceded that he had resided in Connecticut for approximately ten years during his marriage to his wife.^[49] However, during a serious illness, the defendant was appointed as plaintiffs conservator and made the decision to relocate the plaintiff to New York to live with...