Opinion
No. CV 04 0085892 S
February 17, 2006
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
These consolidated actions were tried to the court without a jury. The plaintiffs in both actions are Michael Raynor, Thomas Raynor and John Raynor. The plaintiffs are sons of Shirley Raynor who died on October 26, 2003. In the first action (CV 04 0085892), the defendants are Christopher Carveth, executor of the estate of Shirley Raynor and Ann Henry. In that case, the plaintiffs, as heirs of Shirley Raynor's estate, appeal from the Probate Court decision admitting to probate Shirley Raynor's will, executed on March 14, 2002. In the "Amended Reasons For Appeal From Probate," the plaintiffs allege that Shirley Raynor lacked testamentary capacity and was under the undue influence of their sister, Ann Henry. The plaintiffs also raise two procedural arguments regarding the probate proceedings, which were essentially rendered moot by the trial de novo before this court.
The specific claims alleged in the "Amended Reasons For Appeal From Probate," dated April 20, 2005, read as follows:
3. At the time the testator executed the subject will, she lacked testamentary capacity.
4. The testator executed the subject will while under the undue influence of Ann R. Henry, the primary beneficiary of the will.
5. The testator executed the subject will while under the undue influence of Ann R. Henry, who at the time the will was executed, had a fiduciary relationship with the testator, and was the primary beneficiary of the will.
In their procedural claims, the plaintiffs argued that the Probate Court erred by failing to grant their request for a continuance of the probate proceedings in order for them to acquire and review medical records of the testator and the files of a criminal proceeding pending against Ann Henry. As part of the proceedings before this court, the plaintiffs received the opportunity to review these documents.
In the second action (CV 04 0084922), the defendant is Christopher Carveth, executor of the estate of Shirley Raynor. In that case, the plaintiffs indicate that they held interests in property located at 50 Fairview Street, Milford, Connecticut (the property). According to the complaint, before her death, Shirley Raynor represented to them that if they transferred their interests in the property to her, she would devise the property back to them upon her death. The plaintiffs allege that they relied on this representation, transferred the property to her and provided financial support to her to help her to pay the expenses of the property. The plaintiffs further allege that Henry, through deception and manipulation, precluded the plaintiffs from communicating with Shirley Raynor, and that Shirley executed a will disinheriting them and bequeathing her entire estate to Henry. This will was admitted to probate and the defendant, Christopher Carveth, was named the executor. The plaintiffs claim that the estate has been "unjustly enriched" and that the estate "wrongfully and inequitably holds fee simple title to the property." They seek legal ownership of the property and money damages.
DISCUSSION Probate Appeal A Testamentary Capacity
"When the Superior Court entertains an appeal from a Probate Court, it takes the place of and sits as a court of probate . . . In ruling on a probate appeal, the Superior Court is not exercising the powers of a constitutional court of general jurisdiction but is exercising the powers of Probate Court. Although the Superior Court tries the issues before it de novo, it does so exercising the special and limited jurisdiction conferred on it by the probate appeal statute." (Citations omitted.) Bishop v. Bordonaro, 20 Conn.App. 58, 64, 563 A.2d 1049 (1989).
The burden of proof in disputes over testamentary capacity is on the party claiming under the will, even when, as is the case here, another party affirmatively pleads lack of testamentary capacity. The plaintiffs do not contest due and proper execution of the will, and the evidence indicates that the statutory requirements of execution have been satisfied. Consequently, the general rule is that "if nothing in the circumstances at the time of its execution tended to show the contrary, the proponents might rely upon the prima facie presumption that the testatrix was of sound mind. The presumption of sanity would be sufficient until evidence tending to show the contrary was introduced by the contestants. The proponents would, after the introduction of such evidence, be required to rebut this by preponderating evidence, and the presumption of sanity would have no probative force." Wheeler v. Rockett, 91 Conn. 388, 392, 100 A. 13 (1917). The primary test for testamentary capacity is whether the testator had the "mind and memory sound enough to know and understand the business upon which [she] was engaged at the time of execution." Stanton v. Grigley, 177 Conn. 588, 564, 418 A.2d 923 (1979).
The court finds that the evidence, especially the taped recording made during the will's execution, establishes that the defendants have met their burden of proof as to the testator's capacity. The evidence indicates that severe animosity and mistrust developed between the plaintiffs and their sister, Henry, about their mother's care and treatment. The conflict reached a point where the plaintiff here, Michael Raynor, filed an application for him to be appointed a conservator of the testator's estate and person. At issue in the conservator proceedings was the claim that Henry's influence over Shirley Raynor was causing Shirley Raynor to have severe emotional problems and conflicts. Shirley Raynor contested the conservator application and ultimately prevailed in her objection to it. During the pendency of the conservator proceedings, she decided to change her will and contacted Carveth for this purpose. Because of the contentiousness in the family and the existence of the conservator proceedings, Carveth had the execution of the will tape recorded.
The application for the appointment of a conservator was filed in January 2002 and amended in February 2002. The Probate Court's decision denying the application was issued in August 2002. The reason for a conservator was explained in the application as follows: "The Respondent has exhibited progressive memory loss and confusion over the past few years. The Respondent also exhibits periods of severe emotional conflict with regard to decisions made for her by her daughter, Ann Raynor Henry." (Exhibit C.)
Based on the evidence, it is clear that Shirley Raynor was upset by the conservator proceedings, which she believed were instituted or supported by her sons. As a result, she instructed Carveth to omit them from her will and to leave her estate to her daughter, Henry. When asked if her daughter had pressured her in any way regarding these instructions, she replied, "absolutely not." She indicated that she was not taking any medications that would affect her faculties and expressly stated: "Oh, I understand everything that I'm doing." There is nothing in the recording of the will's execution, or in any of the specific circumstances surrounding the execution, indicating that Shirley Raynor failed to appreciate or understand her decision or her actions in executing the will.
For example, during the execution of the will, Shirley Raynor answered questions on this issue as follows:
Q. Did you discuss with me whether you wished to make any provisions for your other children?
A. Yes I did, and I said that she has been the one who is always there for me, and uh, right now the boys are, are giving me a lot of stress and, uh it's up there. They're trying to get everything so they can run everything and I don't want that. I want her to do that.
Q. And what did you ask me to do regarding what we call "dispositive provisions" or things to go to your sons?
A. I, at this point, they have caused such turmoil in my life, I'd rather they be omitted. I know they'll fight it, but I don't think I owe them anything.
To support their claim that Shirley Raynor lacked testamentary capacity, the plaintiffs point to certain comments made during the will's execution. The plaintiffs claim that Carveth never asked Shirley Raynor what was her date of birth. However, the transcript of the recording; (exhibit A); indicates that this was among the first questions he asked her. She correctly replied "July 5th, 1920." The plaintiffs also point to the fact that Carveth informed Shirley Raynor what the date was, rather than asking her if she knew the date. Neither these references, nor any of the other incidents relied on by the plaintiff call into question Shirley Raynor's testamentary capacity.
The plaintiffs also rely on written comments or observations of Shirley Raynor made by her doctors. Although the court admitted these doctors' notes over objection, the court reviews the credibility and weight of their observations based on the consideration that none of the doctors in question were psychologists or were asked to provide an opinion as to Shirley Raynor's mental capacity. The plaintiffs did not call any medical provider or expert to testify at the trial. In August 2001, Clifford Kramer, a cardiologist, indicated that Shirley Raynor was "doing well," but would experience "intermittent chest pain" with "emotional upset." (Exhibit 7b.) In October 2001, Gordon Hutchinson, a rheumatologist, indicated that Shirley Raynor displayed "mild early dementia," and "transient confusion," but she presented herself well, her "judgment was intact," and she was able to perform arithmetic tests. (Exhibit 7.)
The plaintiffs also emphasize a July 2002 neurological examination done by Kenneth Siegel, a neurologist, that was not marked as a full exhibit.
This medical evidence relied on by the plaintiff only indicates that Shirley Raynor experienced mild dementia and memory loss typical of an 82-year-old woman. There is no evidence that when she executed the will she suffered from any severe dementia or loss of mental capacity indicating that she did not have sufficient mind and memory "to know and understand the business upon which [she] was engaged at the time of execution." Stanton v. Grigley, supra, 177 Conn. 564.
Thus, the court concludes that the defendants have met their burden of proof as to Shirley Raynor's testamentary capacity.
B Undue Influence
The general rule is that the plaintiffs, as the contesting parties, have the burden of proof on their allegation of undue influence. However, the plaintiffs claim that because Henry, as the beneficiary under the will, had a close relationship with Shirley Raynor, the burden of proof should shift to her to disprove the exertion of undue influence. On this issue, our Supreme Court has explained, "There is a marked distinction between the situation where the beneficiary is a stranger and the situation where [she] is a child of the testator or grantor . . . When, as here, a child is the beneficiary, the burden of proving the absence of undue influence does not shift to the child, even though it appears that a confidential relationship existed." (Citations omitted; internal quotation marks omitted.) Berkowitz v. Berkowitz, 147 Conn. 474, 477-78, 162 A.2d 709 (1960). In this particular case, whether the burden shifts or not, the evidence establishes clearly and convincingly that Shirley Raynor voluntarily and knowingly executed the will according to her wishes.
"Undue influence sufficient to invalidate a will is `[t]he degree of influence necessary to be exerted over the mind of the testator to render it improper, [and] must from some cause or by some means be such as to induce [her] to act contrary to [her] wishes, and to make a different will and disposition of [her] estate from what [she] would have done if left entirely to [her] own discretion and judgment. That [her] free agency and independence must have been overcome, and that [she] must, by some dominion or control exercised over [her] mind, have been constrained to do what was against [her] will, and what [she] 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 . . . Subsequently [our Supreme Court] reiterated the above principle and amplified it as applied to a case where there was no direct evidence of undue influence, in these words: It is conceded that no direct evidence of undue influence was adduced, and none was necessary, provided the foundation was laid for a reasonable inference that the will was not such as the testator would have made, if left entirely to [her] own discretion, and that [her] free agency and independence had been overcome, so that [she] was constrained to do what [she] was unable to refuse and too weak to resist . . . On the other hand, the rule which dispenses with the necessity of direct proof of undue influence, does not relieve the contestant from the burden of laying a safe foundation of material facts proven, and inferences which fairly and convincingly lead to that conclusion.'" Larocque v. O'Connor, 90 Conn.App. 156, 165-66, 876 A.2d 1229 (2005), quoting, Lee v. Horigan, 140 Conn. 232, 237-38, 98 A.2d 909 (1953).
In this case, the evidence, including the circumstances and substance of Shirley Raynors' communications with Carveth, the plan of disposition, and her own words as recorded as part of the will's execution, establishes that the terms of the will express her intent and that she was not unduly influenced by Henry. Prior to Shirley Raynor's arrival to his office, Carveth telephoned her to discuss her instructions. He requested and confirmed that she was alone and that Henry was not present during the conversation. Henry was not in the room where the will was executed. Shirley Raynor had ample opportunity to inform Carveth, whom she contacted to change her will, about any hesitancy or pressure she felt about the execution of the will. She not only did not express any such reservations, she affirmatively stated that she understood what she was doing and explained why she was doing it. In her own words, she explained that she was upset that her sons were pursuing the conservatorship proceedings and she indicated that this effort represented a control over her affairs that she did not want. Her forceful opposition to the conservatorship itself evidences her independence and desire to make her own decisions. The evidence indicates that Henry was demanding and difficult, that the animosity between her and her brothers had become extreme and that Shirley Raynor was placed in the middle of this sad and unfortunate conflict. However, the evidence clearly shows that Shirley Raynor knowingly and voluntarily changed the will in the manner she wanted without undue influence or control.
C Constructive Trust
"The elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property. A constructive trust is created by the operation of law when these elements are present." Gulack v. Gulack, 30 Conn.App. 305, 310, 620 A.2d 181 (1993).
"The imposition of a constructive trust by equity is a remedial device to prevent unjust enrichment . . . thus a constructive trust arises when a person who holds title to a property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." (Internal quotation marks omitted.) Bantin v. Shoreline Plumbing Heating Supply Corp., 30 Conn.App. 637, 639, 621 A.2d 769 (1993). "Before a trust can be created, however, there must be a duty owed, or a fiduciary or otherwise special relationship between the parties." Filosi v. Hawkins, 1 Conn.App. 634, 639, 474 A.2d 1261 (1984). "In order for a constructive trust to be imposed, the plaintiff must allege fraud, misrepresentation, imposition, circumvention, artifice or concealment or abuse of confidential relations." Wing v. White, 14 Conn.App. 642, 644, 542 A.2d 748 (1988).
In disposing of the plaintiffs' claim for a constructive trust, the court is charged with evaluating the weight and credibility of the conflicting testimony. After a review of the evidence and the parties' positions, the court finds that the plaintiffs have failed to meet their burden of proof to establish a constructive trust. According to the plaintiffs, they received fractional share interests in the property in question through the intestacy proceedings of their late father. Michael Raynor testified that he, along with his other siblings, transferred their fractional shares of the property to Shirley Raynor so that she was the full title owner. Michael Raynor further testified that these transfers were based on an oral promise by his mother to devise the property back to them upon her death. He offered no specifics or corroboration for this agreement. The existence of this arrangement was contradicted by Henry and by Shirley Raynor's own statements and actions in executing the will. The weight of the evidence more clearly supports the view that the property was transferred to Shirley Raynor by the family members in order to help accommodate her and to provide for her needs. There may have been a desire or hope that Shirley Raynor would transfer the property back to them, but this record fails to show any representation or promise by Shirley Raynor to make any such transfer sufficient to establish a constructive trust.
CONCLUSION
Therefore, for the foregoing reasons, judgment enters in favor of the defendants and against the plaintiffs in these consolidated actions.
So ordered.