Opinion
HHBCV186046579
01-08-2020
Stacy Holloway v. Linda Carvalho et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Aurigemma, Julia L., J.
MEMORANDUM OF DECISION
Aurigemma, J.
This is a de novo appeal from the Newington Probate Court’s Decree dated July 10, 2018 (the "Decree") admitting the Last Will & Testament of Paul Pizzo dated December 14, 2010 (the "2010 Will") to Probate.
After trial to the court which took place on October 17, 2019 and November 1, 2019, the court finds as follows. The plaintiff-appellant is Stacy Holloway, the granddaughter of Paul Pizzo. The defendant-appellees are Linda Carvalho, as Executrix of the Estate of Paul Pizzo and Linda Carvalho, individually as an heir at law of Paul Pizzo.
Paul Pizzo was born on November 21, 1916 and died of natural causes on September 5, 2017. He was married to Lee until she died on February 4, 1994. Paul and Lee had two children, Linda, and Lisa. After Lee’s death Paul did not remarry.
Paul’s daughter Lisa had one child, Stacy, the plaintiff-appellant. Lisa died on June 18, 2010 after a long illness. Paul’s daughter Linda, the defendant-appellee, is married to John Carvalho. John and Linda have two adult children, John Paul Carvalho and Michelle Feegel.
On February 4, 1987, Paul executed a Last Will & Testament (the "1987 Will"). After her sister died, Linda Carvalho was concerned as to who would take care of Paul and Paul’s estate in the event that she also died. She arranged for an appointment with Attorney Bellobuono and thereafter she and her father met with Attorney Bellobuono to determine whether any changes needed to be made to his will. At that meeting Attorney Bellobuono advised Paul that under the 1987 Will, half of his assets would go to Stacy. Paul was adamant that he did not want his assets to go to Stacy.
Attorney Bellobuono prepared the 2010 Will and Paul executed it on December 14, 2010. On the day on which the 2010 Will was executed, Linda drove Paul to Attorney Bellobuono’s office but remained in the lobby while Paul executed the Will. There is no dispute that the 2010 Will was duly executed in accordance with Connecticut law.
Linda testified that on the day the 2010 Will was executed Paul was living alone. He dressed himself except he needed help putting on his shoes. He fed himself and was ready to go when Linda arrived to take him to the attorney’s office. He walked to and got into Linda’s vehicle on his own, walked into the office on his own and later walked back to Linda’s vehicle. Paul knew who Linda was and knew that he was going to Attorney Bellobuono’s office to sign his will.
The 2010 Will provides that all Paul’s property goes to his "daughter, Linda Carvalho, if she is then living, but if not, then to her then living issue, per stirpes." The 2010 Will also provides that "I have intentionally made no provision herein for the benefit of my granddaughter, Stacy Holloway, not because of lack of love or affection but because I felt she has been adequately taken care of during her lifetime." Linda telephoned Attorney Bellobuono after the 2010 Will was executed to ask what the foregoing language meant. Attorney Bellobuono advised her that the language had to be in there without further explanation. As of the date of trial, Attorney Bellobuono was deceased.
The language of the 2010 Will, which intentionally disinherited Stacy, was consistent with the actions of Stacy’s own mother, Lisa. Lisa’s will had been prepared by a different attorney and provided that "I intentionally make no provision in this Will for my daughter Stacy Lynne Holloway, for reasons which are good and controlling to me."
Both Linda and Stacy testified that in December 2010, Paul was living on his own. Linda would generally stop in to see him every day and arrange his medications, which he could take on his own. Stacy would stop in to see her grandfather when Linda was away. Both Linda and Stacy testified that they would take him shopping and he knew exactly what he wanted, went and got the food and put it in the shopping cart and paid for it. He loved watching television, particularly Judge Judy. He enjoyed socializing, went to the gym regularly and knew all of his family members.
The court finds that Paul disinherited Stacy because she lived with a boyfriend who had influenced her to make bad choices, including bad choices with money. Paul was concerned that if she inherited his money and property she would not make prudent financial decisions.
Dr. Janice Olivieri, who worked in the same office as the plaintiff, testified on behalf of the plaintiff. She opined that Paul was not capable of executing a will on December 14, 2010 primarily because he was incapable of understanding a complex legal document. She based her testimony primarily on Hartford Hospital Medical records from 2008, a time before which Dr. Olivieri treated Paul. Those records noted that Paul had just been taken off a number of medications and in one instance had been brought to the hospital due to a fall. Those records referred to a CT scan of the brain which showed multiple frontal lobe infarcts.
The court does not find Dr. Olivieri’s opinion credible for several reasons. First, she based it on an improper legal standard: the inability to understand complex legal documents does not prevent a person from having the ability to execute a will. If it did, many, if not most people, would lack testamentary capacity. In addition, Dr. Olivieri ignored her own records from around the time of the execution of the 2010 Will in which she found that Paul was doing remarkably well and answering questions appropriately. Her records did not contain any indication that Paul did not know his family members or was suffering from delusions.
Dr. Kenneth Selig, a forensic psychiatrist, testified on behalf of the defendant. He opined that infarcts in the frontal lobe of the brain do not necessarily render someone incapable of executing a will. The frontal lobe of the brain is relatively large and each infarct deadens only a portion of that lobe. Dr. Selig stated that the functioning of the person with the frontal lobe infarcts must be examined in order to determine the effects of the infarcts. He examined Paul’s functioning, including medical reports from before and after the execution of the 2010 Will as well as the deposition testimony of Stacy, Linda and Dr. Olivieri. Dr. Selig opined that it was more likely than not that Paul was capable of executing a will on December 14, 2010. Dr. Selig reviewed all of the medical records that were available. He noted that most records indicated that Paul was oriented to time, person and place and that the overwhelming evidence established that the confused condition and slurred speech documented in the 2008 records relied upon by Dr. Olivieri had resolved by December 2010.
When the court analyzes an appeal from Probate Court admitting a will, it must first consider whether the will was duly executed. Connecticut General Statutes § 45a-250 states that "[a]ny person eighteen years of age or older, and of sound mind, may dispose of his estate by will." A testator is presumed to be of sound mind. Stanton v. Wrigley, 177 Conn. 558, 564, 418 A.2d 923 (1977).
Connecticut General Statutes § 45a-251 provides that: "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 ..." The parties in this case submitted an Amended Joint Stipulation of Facts in which they agree (paragraphs 4-6) that Paul Pizzo was over the age of 18 when he signed the 2010 Will and that the 2010 Will complies with the requirements under § 45a-251.
In paragraph 7 of the Amended Joint Stipulation of Facts the parties agree that the only disputes for this court to decide are: whether Paul Pizzo was of sound mind; whether he was suffering from an insane delusion; and whether he was subject to undue influence at the time the 2010 Will was executed.
To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it. Atchison v. Lewis, 131 Conn. 218, 219, 38 A.2d 673, and cases cited therein. Whether she measured up to this test is a question of fact for the trier. Dunham’s Appeal, 27 Conn. 192, 202; see Nichols v. Wentz, 78 Conn. 429, 62 A. 610.In re City National Bank and Trust Company, 145 Conn. 518, 521, 144 A.2d 338 (1958).
Once due execution of the will is shown (a point not seriously in dispute here), the testator is presumed sane until evidence showing otherwise is presented. Sturdevant’s Appeal, 71 Conn. 392, 399, 42 A.70, 73 (1899); W. Locke and P. Kohn, 2 Connecticut Probate Practice § 308 (1951). See also C. Tait & J. LaPlante, Handbook of Connecticut Evidence § 5.5(d) (1976). The contestant then has the burden of showing some evidence of incapacity; if that evidence is substantial, then the presumption of sanity drops, and the burden shifts to the proponent of the will to prove sanity by a preponderance of the evidence. See 2 Locke & Kohn, supra, at § § 307 and 308.In re Charles F. Chester, 18 Quinn. Prob. Law Journal 224, 228 (2005).
The plaintiff did not produce substantial evidence to overcome the "presumption of sanity" that Paul had in the due execution of his 2010 Will. As stated above, the court does not find credible Dr. Olivieri’s opinion that Paul Pizzo lacked testamentary capacity due to an inability to understand complex documents. Witnesses for both parties produced clear and convincing evidence to demonstrate that Paul had testamentary capacity on December 14, 2010. He lived independently, went to the gym, knew and interacted with family members. Most importantly he understood, as had Stacy’s own mother, that it would not be a good idea to leave her any of his estate.
The defendant has argued that the court must next consider whether Paul was incapable of executing a will because he was suffering from an insane delusion. An insane delusion is a "false belief for which there is no reasonable foundation and which would be incredible under the given circumstances to the same person if of sound mind and concerning which the mind of the decedent was not open to permanent correction through evidence or argument." Kimberly’s Appeal, 68 Conn. 428, 437, 36 A. 847 (1896). There was no evidence that Paul Pizzo suffered from any insane delusion and the plaintiff has not made any such claim in her brief.
The final issue for the court’s consideration is whether Paul was subject to the improper and undue influence of Linda. The parties disagree as to the burden of proof with respect to this issue.
The defendant argues that the burden of proof is on the contestant, who in this case is the plaintiff, Stacy Holloway. The defendant bases this argument on various cases involving the admission of a will to probate: In re Rockwood, 80 Conn. 513, 69 A. 8 (1908); In re Zrinchak, 21 Quinn. Prob Law Jour. 209 (2008).
The plaintiff argues that Linda was in a position of trust vis a vis Paul and, therefore, has the burden to prove by clear and convincing evidence that she did not exercise undue influence. The plaintiff’s argument is based on Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987), which did not involve the admission of a will to probate.
The opinion of Judge Killian in In re Zrinchak, supra, contains a good explanation of the issue:
Because undue influence is not a favored defense, it must be proved by clear and convincing evidence. In re Lockwood, 80 Conn. 513, 69 A. 8 (1908). Generally, unlike due execution or testamentary capacity, undue influence is a matter in avoidance and thus, the burden of proving it rests with the contestant. Page v. Phelps, 108 Conn. 572, 581, 143 A. 890 (1928). In Connecticut, we recognize an exception to this rule regarding burden of proof where the person believed to have exercised the undue influence was in a fiduciary relationship with the testator, where the will favors the fiduciary, and where the natural objects of the testator’s bounty were excluded. See In re Lockwood, 80 Conn. at 518, 69 A. at 11.
As this Court has often noted, the outcome of most will contests, indeed most litigation, is strongly influenced by which side bears the burden of proof. That is particularly true when the legal requirement for proof rises from the normal preponderance of the evidence to the higher standard, clear and convincing. See In re Estate of Helen Bogdziewicz, 19 Quinnipiac Prob. L.J.1, for a more exhaustive discussion of In re Lockwood and its progeny. In 1987, the Connecticut Supreme Court issued Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987). This case did not arise out of a will contest but rather was a collateral attack on the probate proceeding in which it was claimed that waivers of hearing solicited by a sibling/fiduciary who was also an attorney were secured without fully apprising the waiving parties of the significance of their action and thus was a breach of the fiduciary’s duty to those parties . While not directly ruling on the issue of undue influence or whether the burden would shift under these circumstances, the Court did overturn the admission of the will and returned the case to the Probate Court for a new hearing on the will’s admission noting that that would afford the parties an opportunity to address possible undue influence. In that case, the Dunham Court noted that, "a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." Dunham, 204 Conn. at 322, 528 A.2d at 1133 (citing Harper v. Adametz, 142 Conn. 218, 225, 113 A.2d 136, 139 (1955); Worobey v. Sibieth, 136 Conn. 352, 359, 71 A.2d 80, 83 (1949); Hemingway v. Coleman, 49 Conn. 390, 392 (1881)). "The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Dan B. Dobbs, Remedies: Damages-Equity-Restitution § 10.4 at 682 (West 1973).In re Zrinchak, 21 Quinn. Prob Law Jour. at 213-14.
In In re Zrinchak Judge Killian held:
The Court finds by clear and convincing evidence that under the Lockwood test, no undue influence existed. Having reached this conclusion it is irrelevant as to which party had the burden of proof. However, even under the most liberal extension of the test in Dunham this Court finds that Stephen Zrinchak did not stand in so commanding a fiduciary position as to require the shifting of the burden of proof of a lack of undue influence to him.Id. at 219.
Undue influence sufficient to invalidate a will "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 this 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 conviction of duty, would not vitiate a will in other respects valid." Lee v Horrigan, 140 Conn. 232, 237, 98 A.2d 909 (1953).
This court will adopt the language of Judge Killian in In re Zrinchak and find by clear and convincing evidence that under the Lockwood test, no undue influence existed. When Paul reviewed the terms of his existing will with Attorney Bellobuono and learned that Stacy would inherit half of his estate in the place of her deceased mother, he himself, with no prompting from Linda, spontaneously objected. This was not the result of Linda’s undue influence. Stacy’s own mother had held a similar view of her daughter and had disinherited her. Having reached this conclusion it is irrelevant as to which party had the burden of proof. However, even under the most liberal extension of the test in Dunham this court finds that Linda Carvalho did not stand in so commanding a fiduciary position as to require the shifting of the burden of proof of a lack of undue influence to her.
The court affirms the Decree of the Probate Court admitting the 2010 Will.