Opinion
NNHCV176068306S
11-20-2018
Phyllis COPPOLA v. Sherry Lynn KEERAN, Executrix of the Estate of James Michael Morman
UNPUBLISHED OPINION
OPINION
PIERSON, J.
This is an appeal from probate involving a will contest "A will contest generally occurs when one contests the validity of a will on grounds including lack of testator capacity, fraud, undue influence, improper execution, forgery, or subsequent revocation of the will by a later will." (Citation omitted; internal quotation marks omitted.) In re Estate of Andrews, Superior Court, Docket No. CV-89-0103372 S (Aug. 8, 1991, Lewis, J.) (4 Conn.L.Rptr. 416) (1991 WL 157657, at *2).
PROCEDURAL BACKGROUND
According to the plaintiff’s operative complaint dated February 16, 2017, she appeals from a decree issued by the Probate Court for the District of East Haven (probate court), which decree admitted to probate the last will and testament of the decedent, James Michael Morman (testator), and appointed the defendant, Sherry Lynn Keeran, as executrix of the Estate of James Michael Morman (estate). The plaintiff alleges that the testator died on December 14, 2015, and that the plaintiff, Phyllis Coppola, is an heir at law. The plaintiff further alleges that on January 11, 2016, the defendant, Sherry Lynn Keeran, filed a petition for the probate of the testator’s will dated April 2, 2012 (will).
The plaintiff claims that on June 8, 2016, the probate court held a hearing with respect to the admission of the will to probate, at which evidence was presented. On June 14, 2016, the probate court allegedly issued a decree indicating that, in addition to appointing a temporary administrator, the probate court would also: (1) review medical records that were received subsequent to the June 8, 2016 hearing but had not yet been reviewed; (2) resolve the will contest; and (3) appoint a fiduciary. This decree was not appealed.
According to the plaintiff, on October 21, 2016, the probate court issued a further decree making additional findings, together with an acknowledgement that, pursuant to General Statutes § 45a-134, it is required to issue an order within 120 days of a hearing, "and noting that more than 120 days had passed since the [court’s] hearing of June 8, 2016." Further according to the plaintiff, on November 29, 2016, the probate court held a status conference, "at which time counsel for the plaintiff objected to the issuance of a decision," on the ground that the probate court was no longer authorized to issue a decision absent a waiver of the statutory time limit by all parties. On January 20, 2017, the probate court issued a decree admitting the will to probate and appointing the defendant as executrix of the estate.
The plaintiff appeals from the decision of the probate court on four grounds: (1) that the January 20, 2017 decree was untimely and therefore voidable under Conn. Gen. Stat § 45a-134; (2) that the probate court erred in finding due execution of the will; (3) that the probate court erred in determining that the testator had the requisite testamentary capacity to execute the will; and (4) that the probate court erred in concluding that the plaintiff failed to prove undue influence. A hearing on this appeal was held on June 28 and July 3, 2018, at which testimony was heard and documentary exhibits were received in evidence. On July 31, 2018, the parties submitted post-trial briefs (docket entry nos. 123.00 & 124.00) and the court took the matter under advisement.
FINDINGS OF FACT
The testator died tragically, by suicide, on December 14, 2015. At the time of his death, he was fifty-one years of age.
Relationship with Parents & Siblings
In December 2015, the testator resided with his mother, the plaintiff, and his stepfather, Anthony Coppola, in East Haven, Connecticut. The testator had resided with the plaintiff his whole life. He was very close and devoted to the plaintiff and her wellbeing. As his mother aged, she became increasingly dependent on the testator and he became increasingly protective of her. The testator cleaned the home-sometimes obsessively-and cared for the residential property where they lived, inside and out. The testator bought groceries and cooked. He also took the plaintiff shopping, to the bank, to medical appointments, and paid the house bills. Several witnesses characterized credibly the relationship between the plaintiff and the testator as one of co-dependence, in which the testator cared for and protected the plaintiff, and the plaintiff denied and tried to hide the testator’s mental health problems and their consequences, discussed below.
In April 2014, the plaintiff was admitted to the hospital for approximately three weeks after becoming delusional; thereafter, she was treated by a geriatric psychiatrist.
The testator was not close to his stepfather; while his interactions with his siblings and half-siblings were mixed, they deteriorated decidedly in the years leading up to his death. The testator complained that his siblings and half-siblings did not pay enough attention to or time with their mother, the plaintiff. The testator’s relationship with his siblings took a turn for the worse during a Thanksgiving celebration in 2010, when an argument arose during a family football game; the testator stopped attending family holiday gatherings. The relationship with his siblings worsened further in the summer of 2012, when the testator had an argument with his sister, Annette Morman. Thereafter, the testator began calling the police in connection with sibling quarrels over relatively trivial matters. The testator’s father died just before Thanksgiving Day in 2014. The testator’s siblings did not advise him immediately of his father’s passing, which upset the testator. At one point, the testator obtained a civil protective order against this brother, Robert Morman.
Most of the testator’s assets were given to him by others, including his mother. These assets included a share of the home in which he was living at the time of his death. From 2009 through the date of his death, the testator "worked" repairing computers. The testator did not generate income from his computer repair activities; rather, it was something he did as a favor for friends and acquaintances on an irregular and occasional basis.
Relationship with the Defendant
The defendant first met the testator in the fall of 2009. They began dating and remained in a romantic relationship until the testator’s death. The relationship became closer over time. Beginning in 2010, they began staying over at each other’s homes. They engaged in regular recreational activities with one another and vacationed together. They saw each other at least once per week and spoke daily on the telephone. The defendant testified, credibly, that she encouraged the testator to interact more often with his siblings. The defendant maintained a good relationship with the plaintiff while the testator was alive, and the three would sometimes go out to eat, to the movies, and to watch fireworks.
The testator developed a positive relationship with the defendant’s three sons-by a prior marriage-engaging in sports, playing basketball and riding bicycles. The testator taught the boys how to cook. Two of the defendant’s sons were the first to discover the body of the testator in the defendant’s home, shortly after the testator took his own life.
The defendant testified at trial that she became engaged to the testator in late October 2015, shortly before his death. The court found the defendant’s testimony to be credible on this point. Moreover, the defendant’s testimony was supported by that of Rosanne Cianfano, the testator’s former girlfriend, who remembered being told by the testator that he loved the defendant and would probably marry the defendant one day. The testator wrote a final note before his death which reads, in part, as follows:
I love you Sherry
You are the best thing to
Happen to me ...
Despite being in a close romantic relationship for a period of years, the testator remained independent from the defendant in a variety of notable respects. He managed his own money and did not share with the defendant any information, about his finances, including his net worth. The testator and the defendant never shared a bank account or financial advice with one another. They did not make payments on each other’s behalf. While the testator listed the defendant as a beneficiary on some of his accounts, the defendant was unaware of these beneficiary designations until after the testator’s death. Furthermore, the testator handled all matters relating to litigation in which he became involved in the years before his passing, including (1) a partition action involving the East Haven home where he lived with the plaintiff, and (2) a personal injury action arising out of a 2014 motor vehicle accident in which he allegedly sustained personal injuries.
The Last Will and Testament
The will at issue is entitled, "LAST WILL AND TESTAMENT OF JAMES MICHAEL MORMAN." This document was prepared by the testator himself, using a template he found on the internet. Each of the first six pages of the will is initialed by the testator and dated April 2, 2012. The will is also signed and dated April 2, 2012 by the testator on page 6, which signature is attested to by two witnesses, Diane Gerace and Mandi Cyr. Appended to the will as the seventh page is a "SELF-PROVING AFFIDAVIT," executed by the testator, witnessed by Ms. Gerace and Ms. Cyr, and dated April 2, 2012. The acknowledgement is taken by a notary public, namely, Robert M. Patrick, whose signature and valid stamp appear at the bottom of the page. Patrick is the defendant’s father.
Article I of the will, entitled "Identification of Family," provides in part as follows: "A. Disinheritance Provision. I, intentionally and with full knowledge of the consequences, disinherit and omit any provision in my Will for[ ] the following people: my sister, Paula Morman Capasso, my brother, Robert Morman, my sister, Annette Morman, my sister, Leslie Morman Oberempt, my sister, Jennifer Morman Fallon, my brother, Paul Morman, and my stepfather, Anthony Coppolla ..."
Article II of the will, entitled, "Disposition of Remains," reads as follows: "I direct that my remains be buried at East [Haven] lawn cemetery[.] I have a plot at that place. I [don’t] want any brothers or sisters at my funeral. I authorize my Executor to carry out these directions and wishes, particularly those for the disposition of my remains."
Article III of the will, entitled, "Appointment of Fiduciaries," reads in part as follows: "A. Appointment of Personal Representative. I appoint my friend, Sherry Lynn Keeran, as Executor of my estate. If Sherry Lynn Keeran is or becomes unable or unwilling to serve, I appoint my friend, Rosanne Cianfano as alternate Executor."
Article IV of the will, entitled, "Specific Gifts," provides as follows: "A. Gifts of Specified Items of Property. I give all my interest in certain items of tangible personal property to the beneficiaries designated in this section as follows: 1. Specific Gift One. I give car 2008 Toyota Corolla, house on 26 Pevetty Dr. East Haven CT 06512. house on 103 Dewey Ave. East Haven CT 06512. All my personal stuff as well also. all bank accounts also. mutual funds also. All brokers accounts also like option express for stocks and options to my friend, Sherry Lynn Keeran if she survives me. If Sherry Lynn Keeran does not survive me, I give this gift to my friend, Rosanne Cianfano."
Article V of the will, entitled, "Disposition of Residue, " reads in part as follows: "1. Provision for Others. I give all of the rest and residue of my estate, wherever located (hereinafter referred to in this Article as "residue"), to my friend, Sherry Lynn Keeran. If my friend, Sherry Lynn Keeran does not survive me then I give all of the residue to my friend, Rosanne Cianfano ..."
The plaintiff is not mentioned anywhere in the will. The plaintiff testified that she was not surprised that the testator disinherited his siblings. In addition, she was not surprised that, in his will, the testator left property to the defendant. However, the plaintiff was astonished that she was not made a beneficiary of the testator’s will because of their longstanding and close parent-child relationship.
The defendant testified credibly that she never suggested to the testator that he should have a will. She was not involved in the drafting of the will and never made any suggestions to the testator about the terms, contents or provisions of the will. The defendant was not present in the room when the will was executed. She did not exert any influence over the testator in connection with the preparation and execution of the will. In fact, the defendant was unaware that the testator had executed a will until the night of his death.
Despite the testator’s direction that his siblings and half-siblings were not to attend his funeral, the plaintiff and the defendant included all of his siblings and half-siblings in the funeral ceremony.
The Testator’s Mental and Physical Health
Except for a serious bout of Lyme disease when he was younger, and from which he eventually recovered, the testator was in a state of good physical health until 2014. In 2001, the testator was admitted to the Connecticut Mental Health Center as a result of an incident in which, while he was in an on-line chat room, he appeared to threaten suicide. On the date of his 2001 admission, he was noted to have "no past psychiatric history." According to the discharge summary, his mental status and physical examinations were both normal. Further according to the discharge summary, during his hospital admission, the testator "never evidenced any suspicion of depressive disorder, mood disorder, or psychotic disorder, unspecified. He was observed to never be suicidal. He denied suicidal ideation. He would organize events on the Unit and interacted well with the staff." Moreover, the summary reflects the plaintiff’s statement denying "any of the traditional signs of major depressive disorder or suicidal ideation in the [testator]." The testator was discharged without medication or direction for further psychiatric or psychological care.
Despite the foregoing assessment, during his life, the testator experienced mental health problems. The plaintiff testified, credibly, that the testator suffered from bouts of depression, was anxious, had "all kinds of fears," was paranoid, and believed things that "weren’t true." Cianfano also testified that she witnessed the testator having depressive episodes in which he was quiet and would lie down. Further according to certain witnesses, the testator could be easily influenced by others, most especially the plaintiff and the defendant. He saw a psychologist at one time but ceased treatment when he believed he was well. He did not want to take medications. Notes on the testator’s computer, obtained after his death, reflect both obsessiveness and paranoia.
The defendant testified that during the period of their relationship, from 2009 through the time of the testator’s death in 2015, he was not being treated for any mental health issues.
In 2014, the testator was involved in a motor vehicle accident in which he sustained personal injuries, including a concussion and a traumatic brain injury, and he suffered from essential tremors. The defendant attended the testator’s accident-related medical appointments and would be present in the examining room with the testator during physician examinations. By the spring of 2015, the defendant noticed that the testator’s health was deteriorating and his tremors were worsening. A post-accident neurological consultation revealed that the testator suffered a brain injury that could be degenerative. The testator was extremely fearful of his neurological prognosis and what it might mean for him in the future. On one occasion, the testator remarked that he would rather be dead than "be a vegetable."
DISCUSSION
I
"Probate appeals are not civil actions." (Citations omitted; internal quotation marks omitted.) Burnell v. Chorches, 173 Conn.App. 788, 796, 164 A.3d 806 (2017). "When 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.) Bassford v. Bassford, 180 Conn.App. 331, 337, 183 A.3d 680 (2018). "When ... no record ... was made of the Probate Court proceedings, the absence of a record requires a trial de novo." (Internal quotations and citations omitted.) Przekopski v. Przekop, 124 Conn.App. 238, 243-44, 4 A.3d 844 (2010).
"Our law provides that ‘[a]n 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 the Probate Court’s jurisdictional limitations ... At the trial de novo, a 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 ... The proponent must prove anew that the will’s execution was in compliance with the statute in effect at the time it was executed ... To be valid, [a] will must comply strictly with the requirements of [the] statute ... 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 facie case that all statutory criteria have been satisfied even when compliance with those criteria has not been contested.’" (Italics in original.) Bassford, v. Bassford, supra, 180 Conn.App. 338-39, citing Gardner v. Balboni, 218 Conn. 220, 225-26, 588 A.2d 634 (1991).
In this case, as there was no record made in the probate court, the court conducted a trial de novo and made the factual findings set forth above.
II
A
The first ground for the plaintiff’s appeal is her claim that the probate court violated the requirements of General Statutes § 45a-134, in that it failed to render a decision in the underlying will contest within 120 days of the conclusion of the hearing. General Statutes § 45a-134 reads as follows: "Any judge of a probate court who has commenced a hearing in any contested case shall have power to continue the hearing and shall render a decision not later than one hundred twenty days from the completion date of the hearing. If a judge of a probate court fails to render a decision within one hundred twenty days from the completion date of the hearing, any party may petition the Probate Court Administrator for relief which may include reassignment of the case to another judge. Failure of a judge to render a decision in a timely manner does not deprive the court of jurisdiction over the case. The parties may waive the provisions of this section." According to the plaintiff, the probate court’s violation of the time requirements of General Statutes § 45a-134 renders voidable its January 20, 2017 decree. As this court conducted a trial de novo, and has made findings of fact and conclusions of law independent of the probate court’s decree, the plaintiff’s untimeliness argument has no bearing on this appeal.
The plaintiff has not demonstrated that the probate court’s purported failure to issue a timely decision in accordance with § 45a-134 is of any legal significance here. For example, the plaintiff has not shown that a failure of the probate court to comply with the time provisions of § 45a-134 requires this court to reject or accept, in whole or in part, the factual and legal conclusions set forth in the probate court’s decree. On a trial de novo, the decree has no binding effect. The probate court decree is "voidable" insofar as this court tried the matter anew, but the decree’s lack of binding effect is unrelated to the issue of statutory untimeliness. Thus, the first argument advanced by the plaintiff is insufficient to sustain her appeal.
As it is irrelevant to the issues raised here, this court does not need to reach the question of whether the challenged probate court decree was, in fact, untimely. However, if the probate court failed to comply with the time limitation of General Statutes § 45a-134, the statute provides an express remedy to the plaintiff, as follows: "If a probate court judge fails to render a decision within one hundred twenty days from the completion date of the hearing, any party may petition the Probate Court Administrator for relief which may include reassignment of the case to another judge." (Emphasis supplied.) No evidence was introduced that this procedure was followed. If the plaintiff wished to challenge the probate court’s decree based on untimeliness, her remedy was to petition the Probate Court Administrator for relief-a procedural mechanism that she chose not to set in motion. In light of her failure to petition the Probate Court Administrator for relief, as provided by statute, she gains no special rights here based on an alleged violation of the time limitation imposed by General Statutes § 45a-134.
B
In Connecticut, "[a]ny person eighteen years of age or older, and of sound mind, may dispose of his estate by will." General Statutes § 45a-250. "A will or codicil shall not be valid to pass any property unless it is 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 plaintiff appeals based on the alleged lack of due execution of the testator’s will.
In a trial de novo such as this, "a 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 ... To be valid, [the testator’s] will must comply strictly with the requirements of this statute." (Citations omitted; internal quotation marks omitted.) Gardner v. Balboni, supra, 218 Conn. 225; see also Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965) ("Since there is a trial de novo on the appeal to the Superior Court, the proponent of a will has the burden of proof on the statutory issue[ ] of due execution ... exactly as [she] had in the Probate Court").
The defendant has proven, by a fair preponderance of the evidence, that the will was executed in accordance with the requirements of General Statutes § 45a-251. The will is in writing, it was signed by the testator, and it was attested by two witnesses. Moreover, a self-proving affidavit was appended to the will, albeit one signed by the defendant’s father as notary. The foregoing is sufficient to demonstrate due execution of the will in accordance with our statutory requirements. The plaintiff has not cited any persuasive legal authority to suggest that the procedures followed in connection with the execution of the testator’s will do not comply with General. Statutes § 45a-251. As a result, the plaintiff’s second ground for appeal fails.
C
The plaintiff also challenges the admission of the will based on lack of testamentary capacity. It has long been the law of our state that "the testator may not have sufficient strength of mind and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by his will. The question, ... resolves itself into this[:] were his mind and memory sufficiently sound to know and understand the business in which he was engaged, at the time when he executed his will." Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254, 265 (1830).
The burden of proof with respect to testamentary capacity is on the proponent of the will, in this case, the defendant. Deroy v. Estate of Baron, 136 Conn.App. 123, 128, 43 A.3d 759 (2012), citing Stanton v. Grigley, 177 Conn. 558, 418 A.2d 923 (1979); accord Wheat v. Wheat, 156 Conn. 575, 578, 244 A.2d 359 (1968); Berkeley v. Berkeley, supra, 152 Conn. 401. "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 [or her] proof, and only then does the burden shift to the opponents to prove incapacity." (Internal quotation marks omitted.) Id.
"What constitutes testamentary capacity is a question of law ... To make a valid will, the [testator] must have had mind and memory sound enough to know and understand the business upon which [he] was engaged, that of the execution of the will, at the very time [he] executed it ... Whether [he] measured up to this test is a question of fact for the trier." (Internal quotation marks omitted.) Bassford v. Bassford, supra, 180 Conn.App. 340, citing City National Bank & Trust Co.’s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958).
As emphasized by the court in Bassford v. Bassford, supra, "[o]ur law provides that it is a testator’s capacity at the time of the will execution that is relevant. The fundamental test of the [testator’s] capacity to make a will is [his] condition of mind and memory at the very time when [he] executed the instrument ... While 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 is may afford as to his capacity at that point in time and diminishes in weight as time lengthens in each direction from that point." 180 Conn.App. 341, citing Jackson v. Waller, 126 Conn. 294, 301, 10 A.2d 763 (1940).
"Any person eighteen years of age or older, and of sound mind, may dispose of his estate by will. General Statutes § 45a-250. Mere physical weakness or disease, old age, eccentricities, blunted perceptions, weakening judgment, failing memory or mind, are not necessarily inconsistent with testamentary capacity. One’s memory may be failing and yet his mind not be unsound. One’s mental powers may be weakening, and still sufficient testamentary capacity remain to make a will ... Dripps v. Meader, 94 Conn. 559, 560, 109 A. 808 (1920)." Ciccaglione v. Stewart, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. AAN-CV-07-4008864 (Feb. 8, 2012, Moran, J.T.R.) (2012 WL 671933, *5). Thus, "an individual may possess the mental capacity necessary to make a will although incapable of transacting business generally." (Citations omitted.) Deroy v. Estate of Baron, supra, 136 Conn.App. 128. "The law recognizes degrees of mental unsoundness, and not every degree of mental unsoundness or mental weakness is sufficient to destroy testamentary capacity. Absolute soundness of mind and memory in every respect is not essential to testamentary capacity. There is no particular degree of mental acumen which may be set up to serve as a standard of testamentary capacity." Id., 136 Conn.App. 129, citing 79 Am.Jur.2d § 63 (2002).
In this case, the defendant has proven that in April 2012, the testator had testamentary capacity sufficient to make the will; by contrast, the plaintiff has not proven incapacity. Although the testator suffered from certain psychological problems and conditions, such as anxiety and depression, these were insufficient to defeat his testamentary capacity at the time he signed the will. The evidence demonstrated that in April 2012, the testator had mind and memory sound enough to know and understand the business upon which he was engaged-namely, that he wanted to leave his estate to the woman he loved and that he intended to disinherit his siblings, with whom he had increasingly contentious relationships. As for the fact that the plaintiff was not mentioned in the will, the basis for the testator’s decision to exclude her is confined to the realm of speculation. The fact that the testator omitted the plaintiff from his will, despite his very close relationship with her, does not demonstrate a lack of testamentary capacity, in and of itself. The testator was not being monitored or treated for psychiatric problems or conditions, and no psychological, psychiatric or medical evidence was introduced reflecting testamentary incapacity in April 2012. The evidence reflects that while the testator had mental health issues in April 2012, he was able to live a self-directed life, and to know and understand his own business. For these reasons, the third basis for the plaintiff’s appeal is denied.
D
The plaintiff’s final argument is based on undue influence. "Ordinarily, the burden of proof on the issue of undue influence rests on the one alleging it, and this is true whether the issue arises in a will contest or in a proceeding in equity to set aside a conveyance ... In will contests, we recognize an exception to this principle when it appears that a stranger, holding toward the testator of trust and confidence, is a principal beneficiary under the will and the natural objects of the testator’s bounty are excluded ... The burden of proof, in such a situation, is shifted, and there is imposed upon the beneficiary the disproving, by a clear preponderance of the evidence, the exertion of undue influence by [the beneficiary]." (Citations omitted.) Berkowitz v. Berkowitz, 147 Conn. 474, 476-77, 162 A.2d 709 (1960). As our Supreme Court instructed in Berkowitz, "[i]t is only where the beneficiary is, or has acquired the position of, a religious, professional, or business adviser, or a position closely analogous thereto, that the rule of public policy can be invoked which requires such a beneficiary to show that [she] has not abused [her] fiduciary obligation."
As stated by the Supreme Court of Connecticut, "[m]any years ago, this court held the following to be a correct statement of what constituted undue influence sufficient to invalidate a will: The degree of influence necessary to be exerted over the mind of the testator to render it improper, 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." (Internal quotation marks omitted; internal alterations omitted.) Lee v. Horrigan, 140 Conn. 232, 237-38, 98 A.2d 909 (1953), citing Appeal of St. Leger, 34 Conn. 434 (1867).
"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 ... Hart v. Hart, Superior Court, judicial district of Windham at Putnam, Docket No. WWMCV-146007918 (May 11, 2015, Calmar, J.) ." Markowitz v. Villa, Superior Court, judicial district of New Haven at New Haven, Docket No. NNH-CV-16-6060963 S (Jan. 26, 2017, Wilson, J.) (63 Conn.L.Rptr. 787) (2017 WL 960769, *3).
In this case, the court does not need to decide whether the defendant had a relationship of trust or confidence with the testator that imposed a fiduciary obligation upon her. This is because, even if she owed such an obligation, the defendant has disproven, by a clear preponderance of the evidence, the exertion of any undue influence by her. The defendant was unaware that the testator prepared and executed a will in April 2012. The defendant was also unaware, until the time of the testator’s death, that a will had been executed and that she had been named as a beneficiary. The defendant never suggested to the testator that he prepare a will-let alone a will benefitting her and she was not present at the time the testator executed the will. In sum, the credible evidence failed to show that the defendant exerted any influence on the testator in the preparation and execution of the will, let alone undue influence. The record is devoid of credible evidence that the defendant attempted to destroy the testator’s free agency, overcame his free agency and independence, or constrained him to do something other than he would do under normal control. Thus, the defendant has disproven, by a clear preponderance of the evidence, that she exercised undue influence over the testator.
CONCLUSION
The appeal is dismissed and the last will and testament of James Michael Morman is ordered admitted to probate.