Opinion
FBTCV186078289S
08-06-2019
Margaret M. Kelley, Executrix et al. v. Karen Gano et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stewart, Elizabeth J., J.
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT (NOS. 123.00, 125.00 AND 126.00)
STEWART, J.
Plaintiffs Margaret M. Kelley, Kathleen E. Kelley, Kevin Kelley, and Brian R. Kelley, in their capacities as named beneficiaries of Article V of the Will of Dorothy S. Cotton, appeal from the Stratford Probate Court memorandum of decision holding that certain additional payments to them set forth in Article V are to be paid from the residue of the estate. Because there is no residue left, the effect of that order is that the plaintiffs will not receive those additional payments. The defendants are the Attorney General of the State of Connecticut, on behalf of the public interest, and a number of individual and charitable beneficiaries to whom the testatrix made bequests of specific amounts under Article IV of the will. One of the charitable beneficiaries is Salvation Army, Southern New England Division ("the Salvation Army").
The plaintiffs, the Attorney General, and the Salvation Army each move for summary judgment. They all argue in support of their motions that the will is unambiguous and should be construed as a matter of law in their favor. The plaintiffs, in opposition to the defendants’ motions, also argue that the court should use parol evidence to construe the will in their favor because the will is ambiguous or contains a scrivener’s error. The issue in dispute is whether the additional payments set forth in Article V are bequests of specific personal property that should be paid contemporaneously and pro rata to the bequests made in Article IV or whether they are bequests that should be paid from the residuary of the estate after the Article IV bequests have been paid.
MATERIAL FACTS AND PROCEDURAL HISTORY
This action is an appeal from a July 27, 2018 Order and Decree by the Town of Stratford Probate Court (Rowe, J.). The plaintiff-appellants were Margaret Kelley, in her capacity as executrix, and Margaret, Kathleen, Kevin, and Brian Kelley in their capacities as individual beneficiaries of the Estate of Dorothy S. Cotton. The court previously granted a motion to strike the claim by Margaret Kelley, in her capacity as executrix, because she did not have standing. Memorandum of Decision on Motion to Strike (no. 105.50).
Article IV of the will, entitled Specific Bequests, contains 35 specific cash bequests to various charitable organizations and individuals. Last Will and Testament of Dorothy S. Cotton (Exhibit A to Complaint (no. 100.30). Salvation Army is one of the entities to whom a specific bequest was made. Id. Article V of the will, entitled Annuity, provides for an annuity to be allocated 22 percent to each of the Kelleys and 12 percent to Mary Lee Prussel, all tax free. Id. Article V goes on to set forth the language in dispute here: "I further intend that each of the annuity beneficiaries receive a guaranteed minimum net bequest as stated hereinafter. I therefore direct that, from my residuary estate, an additional sum of money be paid to each of the Kelleys and Mary Lee Prussel so that the net proceeds derived from the combination of annuity payments and specific bequests under this portion of my Will shall total at least Ninety-Nine Thousand Dollars ($99, 000.00) for each of the Kelleys and Fifty-Four Thousand Dollars ($54, 000.00) for Mary Lee Prussel, all of said shares shall be paid in ‘after tax’ money." Id. Article VI, entitled "Residuary Estate," defines the residuary estate and provides that the residue of the estate shall be distributed in equal shares "to those charitable organizations and individuals set forth in Paragraph H of Article IV above."
The parties agree that the estate did not have enough funds to satisfy all of the bequests in Article IV and Article V. At the time the will was executed, the annuity that is the subject of Article V was worth approximately $450, 000.00. As of the date of death, it had declined in value to $229, 779.24. After distribution of this amount to the plaintiffs and Ms. Prussel, the assets available for distribution, after expenses, total approximately $970, 000.00. Exhibits D and E to Complaint (no. 100.30); Attorney General Memorandum at 5 (no. 127.00). This is less than the $1, 248, 000.00 of specific bequests in Article IV and the $220, 220.76 needed to fully fund the additional payments provided for in Article V. Id. When Margaret Kelley, as executrix, proposed a Final Accounting and Distribution Schedule that would have fulfilled all of the gifts and bequests at about 80 percent of the full amount, another defendant bequest recipient in this action objected to the probate court.
No party is disputing that the plaintiffs and Ms. Prussel are entitled to their respective percentages of the $229, 779.24. Attorney General’s Memorandum, 4 (no 127.00). The only issue is whether they may recover the additional amounts provided for later in Article V.
The total needed to satisfy Article V is $450, 000.00. $450, 000.00 less $229, 779.24 is $220, 220.76.
The probate court held a hearing at which it declined to receive parol evidence offered by the Estate. In its memorandum of decision, the probate court held that there was neither a patent nor a latent ambiguity and therefore no basis on which to admit parol evidence as to the testatrix’s intent. Memorandum of Decision (Exhibit B to Complaint (no. 100.30). The probate court disallowed the proposed Final Accounting and construed the will to require that the Article V gifts to the Kelley family members be paid from the residue of the estate, which had the effect of the plaintiffs not receiving the additional payments.
LEGAL ANALYSIS
I. STANDARDS AND LAW APPLICABLE TO ALL MOTIONS
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49; see also Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). A "material fact" is one that would make a difference in the outcome of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The burden of showing the nonexistence of any issue of material fact is on the moving party. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). In deciding these motions, this court must view the evidence in the light most favorable to the nonmoving party. Id. "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"Once the moving party has met its burden, however, the opposing part[ies] must present evidence that demonstrates the existence of some disputed factual issue." Romprey v. Safeco Ins. Co. of America, supra, 301 Conn. 320. It is not enough for the opposing parties to assert the existence of a disputed issue of fact. Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). The opposing parties must demonstrate that they have sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of their causes of action. Stuart v. Freiberg, 316 Conn. 809, 822-23, 116 A.3d 1195 (2015).
"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 probate court, the Superior Court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." (Citations omitted; internal quotation marks omitted.) Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988).
Construction of a will is a question of law for the court. Corcoran v. Dept. of Social Services, 271 Conn. 679, 698, 859 A.2d 533 (2004). The primary objective in construing a will is to ascertain and effectuate the testator’s intent. Dei Cas v. Mayfield, 199 Conn. 569, 572, 508 A.2d 435 (1986). "In searching for that intent, we look first to the precise wording employed by the testatrix in her will ... for the meaning of the words as used by the testatrix is the equivalent of her legal intention the intention that the law recognizes as dispositive .... The question is not what [s]he meant to say, but what is meant by what [s]he did say." (Citations omitted; internal quotation marks omitted.) Canaan National Bank v. Peters, 217 Conn. 330, 335-36, 586 A.2d 562 (1991). "A court may not stray beyond the four corners of the will where the terms of the will are clear and unambiguous." (Internal quotation marks omitted.) Id., 337.
Beneficiaries are responsible for the liabilities of an estate in the following order set by General Statutes § 45a-369(a): "(1) Distributees, (2) residuary beneficiaries, (3) beneficiaries of general dispositions, (4) beneficiaries of specific dispositions of personal property, (5) beneficiaries of specific dispositions of real property, and (6) transfer on death beneficiaries." Although this statute is entitled "Order of liability; preferences," and it appears in the Chapter 802b part dedicated to claims against decedents’ estates, the parties appear to agree that the reverse of this order applies here to determine which class has priority to recover under this will.
None of the parties has cited any authority, nor has research revealed any authority, for the proposition that Section 45a-369 controls the analysis here.
Our Supreme Court has recognized that when, as here, there are insufficient funds in an estate, there is a priority for payments, and that those who are to be paid from the residue are to be paid last. "Ordinarily the residue of an estate is that portion which remains after the payment of debts, charges and particular legacies." First National Bank & Trust Co. v. Baker, 124 Conn. 577, 587, 1 A.2d 283 (1938). In Baker, the Supreme Court affirmed the trial court’s conclusion that the funds available should be used to make up deficiencies in particular legacies, in preference to a gift to a memorial fund that was to be paid from the residue. Id. The court held that "[t]he rule of law which would prefer the particular gifts to provisions for the disposition of the residue applies in the absence of a contrary intent appearing in the will." Id., 589. The court held that, although the testatrix could have varied this rule by providing that the principal of a trust would be used to pay residuary legatees and not be applied to make up the deficiencies, there was no such intent expressed in the language of the will. Id.; see also Griswold v. First National Bank of Wallingford, 134 Conn. 410, 414-15, 58 A.2d 256 (1948) (holding language that the testator’s wife and sons "shall be given precedence over any and all of the other legacies" and that they "shall not abate pro rata" should be construed to provide equally for the sons in preference to all other legacies when there were insufficient funds).
The parties also appear to agree that the bequests in Article IV are specific dispositions of personal property. They disagree, however, as to how to characterize the additional payments of Article V. The plaintiffs contend that those additional payments are specific dispositions of personal property, but the defendants contend that those additional payments are to be paid from the residue.
II. THE PLAINTIFFS ARE NOT ENTITLED TO SUMMARY JUDGMENT
The plaintiffs argue that the language of the will is unambiguous. Pointing to the specific language of the contested section of Article V, they emphasize that the annuity beneficiaries receive "a guaranteed minimum net bequest" and that they should be paid a "combination of annuity payments and specific bequests under this portion of my Will ..." They also argue that the Article V beneficiaries are the only named individuals in the will and that the testatrix took the trouble in Article V to provide for other family members if the plaintiffs predeceased her. The plaintiffs do not interpret the meaning of the phrase "from my residuary estate." Instead, they argue that because Article VI defines "residuary" as "all the rest" of the property and follows Article V, the additional payments are not part of "all the rest" and should not be paid from that residuary. They also argue that the statement in Article V that the annuity payments are to be "tax free" means that the testatrix did not want both the Article V payments and the Article VII tax payments to come out of the residuary.
Defendant Salvation Army responds that "[t]hese provisions, however, manifest nothing more than an intention that if the residuary estate is sufficient to allow for the distributions, they should be paid at a guaranteed minimum amount and should not be reduced by the payment of taxes." Objection, 3 (no. 130.00). It challenges the notion that Article V cannot be paid out of the residuary merely because Article V precedes the residuary clause of Article VI. Id., 4. It also points out that Article VII directs that taxes be paid "from my residuary estate," the same language used in Article V, and argues that the plaintiffs are inconsistent by arguing that this same language is effective in Article VII but not in Article V. Id., 3-4. The Attorney General responds that the plaintiffs have cherry picked the language of Article V without reciting the whole provision. Attorney General’s Response, 2 (no. 131.00). He further argues that the interpretation of the will as a whole demonstrates that the testatrix’s primary intent was to benefit public and charitable purposes. Id., 3.
The plaintiffs also argue that the defendants’ reliance on the language "from my residuary estate" to "override" language about special bequests in Article V is contrary to the law of will construction. The court disagrees. First, the court does not read the defendants’ arguments as contending that payment from the residuary "override" payments of special bequests. Second, the law of will construction, as set forth above, is focused on discerning the testatrix’s intent from the language of the will. See Canaan National Bank v. Peters, supra, 217 Conn. 335-37. The plaintiffs quote instead from several cases discussing residuary clauses. None of them are factually on point. In the first case cited, State Bank & Trust Co. v. Nolan, 103 Conn. 308, 130 A. 483 (1925), the Supreme Court rejected an argument that because the residuary was bequeathed equally to the four children, one of the children had an absolute right to one-quarter of the estate. The next case cited, Rhode Island Hospital Trust v. Votolato, 102 R.I. 467, 231 A.2d 491 (1967), makes the same point our own Supreme Court made in First National Bank & Trust Co. v. Baker, supra, 124 Conn. 587; namely that payments from the residuary come last, after payment of all other gifts. The remaining cases cited by the plaintiffs on p. 8 of their memorandum construe different wills to determine which provision was the actual residuary clause. See, e.g., Warren v. Duval, 124 Conn. 448, 200 A. 804 (1938). No one is disputing that Article VI is the residuary clause. That does not preclude the possibility that other articles of the will may refer to payment under the provisions of that residuary clause. See, e.g., First National Bank & Trust Co. v. Baker, supra, 124 Conn. 587 ("the trustee is directed to pay or distribute the fund ‘under the terms of the residuary clause of my said will, ’ and in the other he is directed to pay and distribute it ‘in accordance with the residuary clause of my said will’ ").
Finally, the plaintiffs contend that the word "residuary" is "one, potentially misused, word" in Article V. It appears that the plaintiffs want this court to ignore that word to grant their motion for summary judgment. The plaintiffs then quote selectively from the Supreme Court’s decision in Colonial Bank and Trust Co. v. Stevens, 164 Conn. 31, 316 A.2d 768 (1972). In that case, the executor and trustee sought the advice of the Superior Court for the opposite problem from what the court faces here- an excess of annual income from a trust funded by the residuary estate. Id., 35. The Supreme Court concluded, from the language in front of it, that the testator intended that the annual payments should be in the amounts specified and that the excess should simply remain in the corpus of the trust to be reinvested. Id., 37-39. The court did not reach that result by ignoring language, as the plaintiffs appear to ask the court to do here.
Having considered the parties’ arguments, the court holds that the plaintiffs have not established that they are entitled to judgment as a matter of law. The court agrees with them that, in the event of a shortfall in the annuity, Ms. Cotton intended to provide "additional" payments to them so that they would each receive 22 percent of $450, 000.00. However, the court cannot disregard the plain direction that these "additional" payments are to be paid "from my residuary estate." Cf. O’Connor v. Waterbury, 286 Conn. 732, 743, 945 A.2d 936 (2008) ("in construing contracts, we give effect to all the language included therein, as the law of contract interpretation ... militates against interpreting a contract in a way that renders a provision superfluous"). The plaintiffs have not established that Article V unambiguously deems the additional payments special bequests to be paid out of the same source and in the same manner as the special bequests in Article IV.
The court does not reach this conclusion based only on the language "from my residuary estate, an additional sum of money shall be paid ..." "The meaning of the words used by the testatrix in ... her will is not to be deduced by extracting and examining the words in artificial isolation ... The words must be interpreted in light of their context within [her will], and with reference to the will in its entirety ... Not only must all parts of the will be considered, but each and all its provisions should, so far as possible, be harmonized and given effect." (Citations omitted.) Canaan National Bank v. Peters, supra, 217 Conn. 336. As for Article V in its entirety, it is clear from the language that the testatrix intended for the plaintiffs to each receive $99, 000.00. She made the sources of payment clear. The plaintiffs were to each receive a share of the annuity, and in the event of a decrease in the value of the annuity, they were to receive additional payments from the residuary estate. These provisions may be harmonized with the remainder of the will and given effect. Article VII also directs that debts, expenses and taxes are to be paid "from my residuary estate." "Presumptively, words have the same meaning when repeated in a will, unless the context indicates a contrary intent." Smith v. Groton, 147 Conn. 272, 275, 160 A.2d 262 (1960). Moreover, Article VI defines the "residuary estate" as "all the rest, reside [sic] and remainder of my property, of whatever constituted and wherever located, and whether acquired before or after the execution of this Will, and including all property that I have attempted to dispose of above, the disposition of which has lapsed or otherwise failed." It is logical that this would be a source of payment for both the additional payments in Article V and the debts, expenses and taxes in Article VII. Finally, it appears that the testatrix contemplated that there would be sufficient funds available in that residuary estate for the Article V additional payments because Article VI also provides that after disposing of property in the preceding articles (including the additional payments in Article V), the residuary should be bequeathed in equal shares to the charitable organizations and individuals listed in Article IV, Paragraph H.
Article IV is distinct from Article V. Article IV is entitled "specific bequests." Each paragraph begins with the language "I give and bequeath." Unlike Article V, there is no identified source of payment for any of the bequests. Indeed, there is no mention of the residuary clause in Article IV. The court cannot find that the language of the will unambiguously provides that the Article V additional payments are specific bequests that should be paid proportionately with the Article IV special bequests. Therefore, the plaintiffs’ summary judgment motion is denied.
III. THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT
Defendants Attorney General and Salvation Army specifically argue that the language "I therefore direct that, from my residuary estate, an additional sum of money be paid to each of the Kelleys and Mary Lee Prussel ..." is unambiguous and should be interpreted as a matter of law to mean that any payments to the plaintiffs are to be derived from the residuary estate. They further argue that because of the shortfall, there is no residuary estate here and therefore the plaintiffs cannot recover under this provision of Article V.
In opposition to the defendants’ motions for summary judgment, the plaintiffs argue that extrinsic evidence should be admitted to show that the plaintiffs’ interpretation of Article V is correct. Memorandum in Opposition (no. 129.00). The plaintiffs offer two rationales for the introduction of extrinsic evidence- the existence of an ambiguity or a scrivener’s error. Id.
A. THERE IS NO AMBIGUITY
As a general rule, the court must limit its construction to the four corners of the will. See, e.g., Canaan National Bank v. Peters, supra, 217 Conn. 337. One exception to this general rule is if the language is ambiguous. "[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms." Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 38, 84 A.3d 1167 (2014).
The plaintiffs never refer to the language of the will to support their argument that there is an ambiguity in the language. Instead, they argue that Defendant Salvation Army’s argument demonstrates a patent ambiguity. They claim that because Salvation Army argued that "Article VI clearly and unambiguously disposes of the residuary estate," Article V must contain specific bequests and the term "residuary estate" in Article V must be in error or at least ambiguous. The court disagrees. First, any ambiguity must arise from the actual language, not some litigant’s statement about the language. Second, there is nothing ambiguous on its face about the statement "I therefore direct that, from my residuary estate, an additional sum of money be paid to each of the Kelleys and Mary Lee Prussel ..." Moreover, the mere fact that there is a separate article that describes what makes up the residuary and explains how to dispose of it after payment of everything else does not create an ambiguity in Article V. Therefore, summary judgment may not be defeated on this basis.
There are two types of ambiguity- patent and latent. A patent ambiguity exists where the language itself is ambiguous. "A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally." Heyman Associates No 1 v Insurance Company of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995). The plaintiffs do not appear to argue that there is a latent ambiguity here.
B. THE PLAINTIFFS FAIL TO RAISE A GENUINE ISSUE AS TO A SCRIVENER’S ERROR
The plaintiffs also argue that there was a scrivener’s error and that this court should admit extrinsic evidence of that error. Salvation Army argues that the plaintiffs improperly are raising the issue of a scrivener’s error for the first time in their opposition to summary judgment. The court is not prepared to rule that it is improper for the plaintiffs to assert the existence of a scrivener’s error. According to the probate court’s memorandum of decision, the plaintiffs raised the possibility of a scrivener’s error in support of their attempt to introduce parol evidence in that court. Memorandum of Decision, 2. Although the plaintiffs’ complaint in this court does not explicitly refer to a scrivener’s error, it does cite as error the probate court’s "refus[al] to hear parol evidence that was offered by the Estate to indicate, clarify and explain the wishes and intentions of the decedent, the testatrix Dorothy S. Cotton." Complaint, ¶9. Based on this record, the court will not bar the plaintiffs from asserting this argument.
The plaintiffs rely on the Supreme Court’s decision in Erickson v. Erickson, 246 Conn. 359, 716 A.2d 92 (1998) for the proposition that they may introduce evidence of a scrivener’s error to show that the testatrix was mistaken when she executed the will. In Erickson, the Supreme Court reversed a trial court that had refused to admit extrinsic evidence that purportedly would have shown that the testator did not intend that his will would be revoked automatically by statute when he remarried two days after he signed the will. Id., 370. The Supreme Court held that "under the circumstances of this case, the trial court improperly excluded evidence of a mistake by the scrivener that, if believed, would permit a finding that the will provided for the contingency of marriage." Id. In reaching that conclusion, the Supreme Court overruled its previous decision in Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 448 A.2d 190 (1982), which had barred the admission of extrinsic evidence of a scrivener’s error that, if permitted, would have prevented the admission of a codicil to probate. The Erickson court adopted the reasoning of the Connecticut Junior Republic dissent, which primarily reasoned that if extrinsic evidence could be introduced to prove fraud, duress or undue influence, it also should be introduced to prove mistake. Erickson, supra, 246 Conn. 373. The Supreme Court established the following standard: a proponent of extrinsic evidence would have to establish, by clear and convincing evidence, that there was a scrivener’s error and that the testator was induced to execute a will contrary to his intent. Id., 372.
Notably, on remand, the trial court admitted the evidence of the scrivener’s error, but held that the proponent had not met her burden of proof. Superior Court, judicial district of New Haven, Docket No. CV-387780 (November 4, 1999, Meadow, J.).
The Erickson opinion repeatedly referred to the circumstances of the case before it, which are distinguishable from the present case. For example, the will in Erickson had no language in it providing for a subsequent marriage. By contrast, in this case, there is very specific language already in the will that the plaintiffs seek to replace. Furthermore, the issue before the court was not construction of a will; it was whether the will should be admitted to probate. As noted above, the reasoning in Erickson was based on the dissent in Connecticut Junior Republic. Although the Connecticut Junior Republic majority noted extrinsic evidence of scrivener’s errors should be excluded in both will contests and will construction cases; 188 Conn. 6-7; the dissent called for a "narrow" exception: "I would today do no more than permit the opponent of a will to introduce extrinsic evidence of the error of a scrivener, and would require proof of such an extrinsic error to be established by clear and convincing evidence." Id., 26-27. Erickson also was a will contest case, and it made no mention of whether the exception it adopted also applied to will construction cases. 246 Conn. 359. Indeed, the Supreme Court chose the clear and convincing evidence standard of proof because it was "the same elevated burden of proof [for a] proponent of [a] will in a case such as this." Id., 375. The parties have not pointed out, nor has research revealed, any appellate authority since Erickson was decided that holds that extrinsic evidence of a scrivener’s error may be introduced in a will construction case.
One Superior Court decision followed Erickson in a will construction case. Kopf v. Estate of Frances Kopf, Superior Court, judicial district of Litchfield, Docket No. CV-06-4004672 (April 8, 2009, Gallagher, J.) That court was convinced that the drafter made a mistake and inserted "issue" instead of "children" in one place in the will. Notably, the court also was persuaded by the use of the term "per capita" rather than "per stirpes" in the clause at issue.
Our Supreme Court only has discussed Erickson one time in the twenty years since it was decided. Corcoran v. Department of Social Services, 271 Conn. 679, 859 A.2d 533, 548 (2004). In that case, it appears that the proponent of the extrinsic evidence was claiming that there was an ambiguity, not a scrivener’s error. Moreover, the trial court in that case found that the proposed evidence was "not that the attorney had given the client inaccurate advice, but an amplification by the attorney of what the plaintiff’s father intended when the will was drafted." Corcoran v. Department of Social Services, Superior Court, judicial district of New Britain, Docket No. CV-01-0511317 (August 14, 2002, Cohn, J.) . The trial court held that it was proper for the hearing officer to exclude the evidence, and the Supreme Court affirmed. Corcoran v. Department of Social Services, supra, 271 Conn. 705-05.
In the present case, both defendants argue that the plaintiffs’ claim of a scrivener’s error is an improper attempt to use extrinsic evidence to establish the testatrix’s intent. Our Supreme Court in Erickson acknowledged the general rule that "extrinsic evidence is not admissible to prove an intention not expressed in the will itself or to prove a devise or bequest not contained in the will ..." 246 Conn. 372. However, it also "acknowledge[d] that permitting extrinsic evidence of a scrivener’s error will lead to the introduction of extrinsic evidence of intent, which, as we noted previously, is not permitted." Id., 374 n.11. Indeed, "the effect on the testator’s intent" is one of the two facts that must be proved by clear and convincing evidence. Id., 372. Accordingly, in the present case, if the evidence proposed by the plaintiffs fits within the exception recognized by Erickson, the fact that it discusses the testatrix’s intent is not sufficient to preclude it.
The court has reviewed the Affidavit of Mark C. Valentine and the probate court brief attached to it. Exhibit A to no. 129.00. As the court is ruling on summary judgment, it is not the court’s role to rule on the admission of evidence. However, the court must decide whether the affidavit meets the substantive standards of Erickson and the procedural standards of our summary judgment jurisprudence.
Even if this court was prepared to extend Erickson to will construction cases, this court finds that the affidavit and the attached brief do not raise a genuine issue of material fact. It is not enough for the plaintiffs to assert the existence of a genuine issue of fact. See Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 554-55. The plaintiffs must demonstrate that they have sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of their cause of action. See Stuart v. Freiberg, supra, 316 Conn. 822-23. "A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence ... Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Citations omitted; internal quotation marks omitted.) United Oil Co., Inc. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596, 604 (1969).
Erickson requires clear and convincing evidence of "two facts, namely, the scrivener’s error and its effect on the testator’s intent." 246 Conn. 372. The affidavit and the brief, which is not even evidence, each make only a conclusory statement that there may have been a scrivener’s error. There is no evidence as to what that scrivener’s error was or how it came about. They also state that it was the testatrix’s intent to provide "specific bequests" to the plaintiffs "to be paid from the estate, with equal or greater priority to the Article IV bequests." This again is conclusory with no statement of the basis for the conclusion. More to the point, there is no evidence submitted as to the second fact that must be proved under Erickson - the effect of the scrivener’s error on the testatrix’s intent. This is not "substantial evidence outside of the pleadings" that would warrant a finding by this court that the plaintiffs have raised a genuine issue of material fact. See United Oil Co., Inc. v. Urban Redevelopment Commission, supra, 158 Conn. 378-79. Therefore, this court will not deny the defendants’ motions for summary judgment on the grounds of a scrivener’s error.
The defendants have established that there is no genuine issue of material fact and that they are entitled to summary judgment. The court agrees with their interpretation that the additional payments were to be paid from the residuary estate. The language of Article V demonstrates that the testatrix was aware that the annuity could diminish in value by the date of her death, and that she had set up the mechanism of the additional payments to address any shortfall. As set forth above, the interpretation that the additional payments were to be made from the residuary estate is consistent with the remaining articles of the will. Accordingly, the defendants’ motions for summary judgment are granted.
CONCLUSION
For the foregoing reasons, this court denies the plaintiffs’ motion for summary judgment (no. 125.00) and grants the defendants’ motions for summary judgment (nos. 123.00 and 126.00).