Opinion
FSTCV186035174S
08-22-2019
Lloyd BARAS et al. v. Francine BARAS et al.
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION
Defendants Francine Baras, (individually), Francine Baras, Trustee of the Robert Baras Revocable Trust, Francine Baras, Executrix of the estate of Robert Baras (the "Defendants"), have filed a motion to strike all eight counts of the plaintiff’s Third Revised Amended Complaint. The counts of the complaint which the defendants seek to strike are: Count One (Lack of Capacity), Count Two (Undue Influence), Count Three (Tortious Interference with Inheritance), Count Four (Breach of Fiduciary Duty as Trustee), Count Five (Breach of Fiduciary Duty as Executrix), Count Six (Conversion), Count Seven, (Civil Theft), and Count Eight (Unjust Enrichment). The court heard arguments of the parties at short calendar on April 29, 2019. The basic position of the defendants as more fully set forth in their memorandum of law is that each of the above counts of the Third Revised Amended Complaint fails to state a claim upon which relief can be granted.
II. PROCEDURAL AND FACTUAL HISTORY
The plaintiff has adopted the following procedural and factual summary set forth in the defendant’s memorandum of law.
Plaintiffs Lloyd Baras and Lise Baras Sharon (the "Plaintiffs") commenced the instant action by means of Writ, Summons and Complaint dated February 8, 2018 bearing a March 13, 2018 return date. By way of further background, plaintiffs also commenced a separate cause of action currently pending before the Superior Court for the judicial district of Stamford/Norwalk at Stamford bearing Docket No: FST-CV17-6032644-S with a Return Date of August 8, 2017 (the "Probate Appeal"). On or about June 12, 2018 the Probate Appeal action was consolidated with the above captioned matter.
In their Probate Appeal, Plaintiffs claim that the Probate Court for the District of Westport erred in accepting the second will of the decedent, Robert Baras, and further erred by refusing to consider the decedents’ first will for probate purposes. Specifically, Plaintiffs allege in the Probate Appeal that Mr. Baras’ second will, which effectively disinherited the Plaintiffs, should be deemed "void" insofar as it was either the product of Mrs. Baras’ undue influence or, alternatively, that Mr. Baras lacked the requisite mental capacity to execute the second will at the time of its execution.
The plaintiffs filed their Amended Complaint on or about September 20, 2018. The defendants have filed three requests to revise plaintiffs’ complaint to which the plaintiffs have responded. On February 27, 2019, plaintiffs filed a Third Revised Amended Complaint, (the "Complaint"), on consent, which is the complaint which is subject to the instant Motion to Strike.
In Count One of their Complaint (Lack of Capacity), plaintiffs allege that they are the son and daughter, and heirs at law, of Robert Leroy Baras ("Mr. Baras" or "the Decedent"). Plaintiffs further allege that the Defendant, Francine Baras ("Mrs. Baras"), is Mr. Baras’ widow. On or about June 25, 2002, Mr. Baras is alleged to have executed a will, naming his wife, Francine Baras, as Executrix of his Estate in the event of his death (the "First Will"). Mr. Baras passed away on February 7, 2017.
The plaintiffs submitted a petition to probate the First Will to the Connecticut Probate Court for the District of Westport on or about June 27, 2017. On or about July 11, 2016, Francine Baras submitted a second will dated February 20, 2014 as Mr. Baras’ final will (the "Second Will"). In addition to the Second Will, Francine Baras submitted to the Probate Court a trust document dated February 20, 2014, alleging it to be an amendment to the Robert Baras Revocable Trust (the "Trust Amendment"). Plaintiffs allege that, upon information and belief, the Trust Amendment sought to amend the Robert Baras Revocable Trust, which he had created on June 6, 2013 (the "Trust").
Pursuant to the Trust Amendment, "Mrs. [Francine] Baras was a co-trustee of the Robert Baras Revocable Trust, along with Mr. Baras." Plaintiffs further allege the existence of Mr. Baras’ living trust which he purportedly executed in or about November 16, 2006 (the "Living Trust"), and claim that Mrs. Baras was a co-trustee of the Living Trust along with Mr. Baras. The Living Trust does not appear to be relevant to Plaintiffs’ claims herein. In other words, there is no claim by the plaintiffs that any of the defendants undertook actionable conduct relative to the Living Trust.
The plaintiffs dispute the validity of Mr. Baras’ Second Will and Trust Amendment. In paragraph 16 of their complaint the plaintiffs allege that prior to 2014, the decedent had created an estate plan that, upon his death, would have distributed his assets among his widow, the defendant Francine Baras, and his children. The plaintiffs further allege that in 2014, at a time when the decedent’s physical and mental condition had deteriorated such that he lacked the mental capacity to understand the nature of his acts, Francine Baras created the Second Will and the Trust Amendment and caused her mentally incompetent husband to sign the Second Will and Trust Amendment. The plaintiffs therefore claim that when Mr. Baras signed the Second Will and Trust Amendment he was not competent to understand the nature of his actions. They also allege that the Second Will and Trust Amendment were prepared at the behest of Francine Baras, and Mr. Baras would not have signed the Second Will or the Trust Amendment but for the undue influence of his wife Francine Baras.
The plaintiffs claim that they were not informed of the Second Will or Trust Amendment until said documents were filed in the Westport Probate Court on or about July 11, 2016. As a consequence of Francine Baras’ actions in revising Mr. Baras’ estate plan, the plaintiffs were effectively disinherited from almost all of the decedent’s assets. As a further consequence of Mrs. Baras’ actions in revising Mr. Baras’ estate plan, Mrs. Baras gained sole control over Mr. Baras’ assets.
As discussed infra, the defendants argue that plaintiffs’ allegations that Mr. Baras both lacked the requisite mental capacity to execute the Second Will and Trust Amendment and was unduly influenced into executing the same are separate and distinct legal theories which are mutually exclusive because they are legally inconsistent.
The plaintiffs further allege that on or about June 6, 2017, the Westport Probate Court issued an Order accepting the Second Will into probate and appointed Mrs. Francine Baras as Executrix of Mr. Baras’ Estate. Plaintiffs thereafter commenced the probate appeal action challenging the decision of the probate court, which action has since been consolidated with this matter. As such, Count One of the complaint purports to assert a claim against Francine Baras that the Second Will and Trust Amendment are invalid due to lack of capacity.
In Count Two of their complaint the plaintiffs allege that the Second Will and the Trust Amendment were the product of undue influence and, as a result, those testamentary instruments are invalid. Notably, in addition to incorporating all prior allegations regarding lack of capacity into their undue influence Count, Plaintiffs expressly allege that, by exploiting her relationship of trust and confidence with Mr. Baras, the defendant caused him to execute the Second Will and Trust Amendment at a time that he lacked the capacity to understand the nature of his actions, effectively disinheriting the plaintiffs.
Count Three of the Complaint asserts that Mrs. Francine Baras tortiously interfered with the plaintiffs’ expected inheritance. In addition to all prior allegations which were incorporated into Count Three, the plaintiffs allege that they had a valid expectation of an inheritance from their father under the First Will, and that Mrs. Baras had actual knowledge of such an expectancy. The plaintiffs expressly allege that Mrs. Baras caused Mr. Baras to rewrite his will and trust at the time that he lacked the capacity to understand the nature of his acts, that Mrs. Baras "acted tortiously in causing Mr. Baras to rewrite his will and trust by exerting undue influence over him." As a result of Mrs. Francine Baras’ "tortious" conduct, the plaintiffs claim they have suffered actual damages and financial harm.
Count Four of the Complaint asserts that Mrs. Baras breached the fiduciary duties she purportedly owed to the plaintiffs in her capacity as Trustee of the Robert Baras Revocable Trust in causing Mr. Baras to rewrite his First Will and Trust. The plaintiffs claim that they sustained damages and financial harm as a direct and proximate result of said breach.
In Count Five of their Complaint, the plaintiffs similarly allege that Francine Baras breached the fiduciary duties she purportedly owed the plaintiffs in her capacity as Executrix of the Estate of Robert Baras, "by administering the Second Will, which she knew to be contrary to the true estate plan created by Mr. Baras under the First Will."
In Count Six of their Complaint wherein they claim damages for conversion, the plaintiffs allege, "[a]s beneficiaries of the Estate and Trust, the plaintiffs have an interest in the assets of the Estate and Trust." The plaintiffs have claimed that Francine Baras deprived the Plaintiffs of their anticipated inheritance which is a property right and that the defendant deprived them of this property for an indefinite period of time, without authorization, resulting in damages and financial harm.
The plaintiffs allege in Count Seven of their Complaint which alleges a claim against Mrs. Francine Baras for civil theft that, in addition. to all allegations previously set forth in Count Six, Mrs. Baras intentionally assumed unauthorized and exclusive control of the assets which were rightfully the plaintiffs,’ that this purported conduct was intentional, that she has refused to surrender and deliver plaintiff’s assets, to them and that, therefore, her conduct constitutes civil theft.
Finally, the plaintiffs allege in Count Eight that, as a result of her conduct as alleged, Mrs. Baras has benefited from her exertion of undue influence over Mr. Baras which resulted in altering the estate plan of Mr. Baras. They further allege that Mrs. Baras has been unjustly enriched as a result of her inconscionable retention of the assets of the estate and/or the trust to her benefit and to the detriment of the plaintiffs.
III. APPLICABLE LAW AND ANALYSIS
A. Motion to Strike
"A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted." Conn. P.B. § 10-39; Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003); Novametrix Med. Sys. v. BOC Group, Inc., 224 Conn. 210, 214 (1992). In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).
Although the court must construe the allegations of the complaint in the manner most favorable to sustain its legal sufficiency, to maintain its claim, the plaintiff must plead "with particularity to allow evaluation of the legal theory upon which the claim is based." S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tifinghast, Lahan & King, PC, 32 Conn.App. 786, 797, cert. denied, 228 Conn. 903 (1993). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Novametrix, 224 Conn. at 215.
B. Count One- Lack of Capacity
The defendants maintain that Count One of the plaintiffs’ Complaint, alleging that Mr. Baras lacked the requisite mental capacity to execute the Second Will and Trust Amendment, should be stricken on the ground that if Mr. Baras lacked the capacity to create the Second Will and Trust Amendment, as is alleged, then Mrs. Francine Baras could not have caused plaintiffs the harm they complain of as a matter of law. Arguing in the alternative, the defendants claim that the plaintiffs fail to properly allege that Mr. Baras lacked the requisite mental capacity at the moment he executed the Second Will and Trust Amendment. As the basis for the defendants’ claim that Mrs. Baras could not have been the cause of any harm to the plaintiffs as a matter of law, the defendants maintain that, if Mr. Baras lacked the requisite mental capacity to create the Second Will and Trust Amendment, as is alleged under Count One, then his wife Francine Baras could not be the cause of any of plaintiffs’ claimed damages. In support of their argument the defendants cite Fantin v. Fantin, No. FSTCV 166027439S, 2017 WL 4872858, at *17 (Conn.Super.Ct. Sept. 6, 2017).
The Fantin decision upon which the defendants rely was not a decision on a motion to strike. Rather, in Fantin, the court issued a lengthy decision following a seven-day trial on the merits of complaint. Although the court’s decision in that case provides guidance to the court’s analysis herein, it is nonetheless procedurally distinguishable. In support of their argument, the defendants provide the following quote from Fantin, "If the court were to find that either of [the testators] lacked capacity to execute the third amendment to his or her revocable trust, the issue of undue influence would be essentially moot." Using this quote, the defendants argue that if Mr. Baras lacked capacity to execute the Second Will and Trust Amendment, as alleged in Count One, any claim for damages against Francine Baras for undue influence would be moot. While this is an accurate statement of the law with respect to the requirement that the court cannot consistently render a decision finding both lack of capacity and undue influence, it applies to the adjudication of a plaintiff’s claim on the merits in a case not to plaintiff’s right to plead alternate theories of liability. Simply stated, a claim of undue influence presupposes that the person subjected to the undue influence is otherwise competent, but that his or her will is overborne by undue influence exerted upon them by another person.
Defendants’ reliance on Fantin v. Fantin, supra, is therefore, misplaced and the above quote is taken out of context. Review of the court’s decision reflects that the plaintiff in Fantin alleged in the first count of the complaint that the third amendments to the revocable trusts were invalid due to undue influence exerted by the defendant Nancy Fantin. The second count alleged that the third amendments to the revocable trusts were invalid due to lack of capacity. The case proceeded to trial and the court carefully considered both claims in light of all of the credible evidence. The defendants have not otherwise cited any authority for their argument that a plaintiff may not plead alternate theories of liability against a defendant. In fact, that is commonly done as reflected in the cases which defendants cite in support of their motion to strike.
The defendants have also moved to strike the first and second counts of the complaint for failure to state facts sufficient to support the claims of both lack of capacity and undue influence. In their complaint the plaintiffs allege that "the Defendant caused Mr. Baras to execute the Trust Amendment and the Second Will despite that he lacked the capacity to do so" and that they have "suffered monetary damages and financial harm as a result of the Trust Amendment and the Second Will." The defendants’ argument that any harm complained of against Mrs. Baras in Count One was not a result of Mrs. Baras’ conduct, but, rather, the result of Mr. Baras’ alleged lack of capacity overlooks the defendant’s role in the execution by Mr. Baras of the Second Will and Amended Trust Agreement. As alleged by the plaintiffs in paragraph 25, "The Plaintiffs assert that the Defendant caused Mr. Baras to execute the Trust Agreement and the Second Will despite that he lacked the capacity to do so." Integral to this allegation is the plaintiffs’ claim, regarding the role of Francine Baras, i.e., that the defendant Francine Baras was responsible for the execution by Mr. Baras of the Second Will and Trust Agreement while he lacked the capacity to do so.
Arguing in the alternative, the defendants claim that the plaintiffs have failed to properly allege that Mr. Baras lacked testamentary capacity at the time he executed the Second Will and Trust Amendment. The defendants maintain that the plaintiffs’ assertion that Mr. Baras did not possess the understanding sufficient to comprehend the nature, extent and consequences of his actions at the time he executed the Second Will and Trust Amendment are mere conclusions of law unsupported by any factual allegation.
The law governing testamentary capacity is well settled in Connecticut. "The test of the donor’s mental capacity is whether, at the time of the transaction, the donor had the ability to understand the nature and effect of his or her act. Old age and the impairments of the mind that normally accompany advanced years do not necessarily indicate that a donor is mentally incapacitated." Mullen v. McAteer, Superior Court, judicial district of Litchfield, Docket No. CV 06 5001046 (August 17, 2009, Gallagher, J.). (Internal citations and quotations omitted.) "Furthermore, a general allegation of insufficient mental ability, without more, is not legally sufficient to substantiate a claim for lack of capacity. and survive a motion to strike." Debus v. Comp, No. MMXCV 106002356S, 2011 WL 1288602, at *2 (Conn.Super.Ct. Mar. 9, 2011). (Citations omitted.) Defendants have also cited the case of Consiglio v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 05 4010111 (November 7, 2006, Zoarski, J.) wherein the court struck the plaintiffs’ claim for lack of capacity because the plaintiff alleged that the decedent did not possess understanding sufficient to comprehend the nature, extent and consequences of the executions but failed to allege facts to support this claim. Without the requisite factual allegations, the court in that case found that the plaintiff had merely alleged legal conclusions and struck the subject count alleging lack of capacity. In this case, the plaintiffs do not rely solely on allegations of the decedent’s age or the normal impairments of the aging process. Rather, they have alleged that the decedent experienced diminished capacity due to his deteriorating mental and physical condition, thus distinguishing it from the finding of the court in Consiglio, supra .
It is true that, in ruling on the instant Motion to Strike, this court must look to the complaint for specific factual allegations which, if proven, would show that the decedent, at the moment which he signed the Second Will and Trust Amendment, did not understand the nature of the transaction before him. In this case, plaintiffs rely on their allegation that the Second Will and Trust Amendment were executed at a time in 2014 when Mr. Baras’ physical and mental condition had deteriorated such that he lacked the mental capacity to understand the nature of his acts and that, therefore, he lacked the requisite mental capacity to execute the Second Will and Amended Trust Agreement which Francine Baras had created. Plaintiffs allege: i) the Second Will and Trust Amendment were executed "at a time when Mr. Baras’ physical and mental condition had deteriorated such that he lacked the mental capacity to understand the nature of his acts"; ii) they were "signed at a time when Mr. Baras was not competent to understand the nature of his actions"; iii) "Mr. Baras would not have signed the Second Will or the Trust Amendment but for the undue influence of Mrs. Baras"; and iv) "[u]pon information and belief, Mr. Baras did not possess the mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution" of the Second Will and Trust Amendment.
As noted above, in this case the plaintiffs have alleged that the decedent experienced diminished capacity due to his deteriorating mental and physical condition, thus distinguishing it from the findings of the courts in the Consiglio, Debus and Mullen cases, supra . The nature and extent of Mr. Baras’ physical and mental deterioration and whether Mr. Baras was competent to understand the nature of his acts at the time he executed the subject documents are questions of fact to be determined based on the evidence at trial. The complaint in Fantin, supra, was similar to the complaint in this case. That case proceeded to trial which occurred over seven days. There, the court reached the decision that the decedent had the mental capacity required to execute the subject documents based on testimony by several witnesses, including a psychiatrist, two attorneys and a non-party individual who dealt with the decedent in real estate matters during the relevant time period. To be sure, it would be preferable for the plaintiffs herein to have included more detailed allegations in support of their claim. The plaintiffs will be required to establish at trial that when Mr. Baras signed the Second Will and/or Trust Amendment, he was incapable of understanding the nature and effect of changing his beneficiaries. However, at this point, viewing the complaint in the light most favorable to the nonmovant, the court finds that the allegations regarding the decedent’s lack of capacity are adequate to maintain a lack of capacity claim as a matter of law.
C. Count Two- Undue Influence
The defendants next argue that Count Two of the Plaintiffs’ Complaint, alleging that Mrs. Baras unduly influenced Mr. Baras into executing the Second Will and Trust Amendment, should be stricken for two reasons. First, they assert that if Mr. Baras lacked the capacity to create the Second Will and Trust Amendment, as is alleged, then he could not be subject to undue influence as a matter of law. Arguing in the alternative, Plaintiffs fail to properly allege that Mrs. Baras unduly influenced Mr. Baras into executing the Second Will and Trust Amendment.
The Connecticut Appellate Court has defined undue influence as "the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control." (Internal quotation marks omitted.) Gengaro v. New Haven, 118 Conn.App. 642, 649 (2009).
There are four elements to an undue influence claim: "(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 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 predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth ... active solicitations and persuasions by the other party, and the relationship of the parties." (Citations omitted; internal quotation marks omitted.) Pickman v. Pickman, 6 Conn.App. 271, 275-76 (1986); Dinan v. Marchand, 279 Conn. 558 n.1., 560 (2006).
In this case, the plaintiffs have alleged that the Second Will and Trust Amendment were prepared at the behest of Francine Baras without the knowledge of the plaintiffs and that she caused her mentally incompetent husband to sign these documents. The resulting revised estate plan effectively disinherited the plaintiffs from their father’s estate. They allege that at the time he executed the Second Will and Trust Amendment, Mr. Baras was not competent to understand the nature of his actions and that the execution of the documents was the product of undue influence on Mr. Baras by Francine Baras. The defendants argue that the plaintiffs’ allegation in Count two that the decedent lacked capacity at the time he was unduly influenced does not sufficiently allege a claim for undue influence as a matter of law. Plaintiffs expressly allege that the Decedent lacked capacity at the time he was unduly influenced by Mrs. Baras.
The defendants cite Poremba v. Yale New Haven Hosp., No. CV 030177177S, 2006 WL 852311, at *2 (Conn.Super.Ct. Mar. 13, 2006) ("the court finds that a motion to strike is properly granted because the second and third counts raise internally inconsistent theories of liability which make the counts legally insufficient to state a single cause of action") for their argument that the plaintiffs cannot maintain a claim that Mr. Baras lacked mental capacity and that he was the subject of undue influence in the same action because these legal theories are internally inconsistent. However, Poremba, which involved the validity of a medical procedure consent form allegedly executed by the plaintiff patient, is distinguishable on its facts from this case. Similarly, Doolittle v. Upson, 138 Conn. 642, 644-45 (1952) in which the Connecticut Supreme Court held that a claim of undue influence presupposes that the person subjected to the undue influence is otherwise competent, but that his or her will is overborne by undue influence exerted upon them by another person, is distinguishable on its facts as well. Bassford v. Bassford, 180 Conn.App. 331, fn. 4, 183 A.3d 680, 691 (2018), also cited by the defendants demonstrates the fact intense nature of the determination of mental capacity and undue influence in such cases. By way of example, the trial court in Bassford examined extensive factual evidence, including medical, psychiatric records and lay and expert testimony; in reaching its decision dismissing the appeal after a full trial on the merits. The cited footnote, "Logically, [plaintiffs] cannot have the evidence to support two such inconsistent notions, correct for purposes of demonstrating undue influence and that his ‘true desires’ were not to benefit his wife, and on the other hand, that such delirium and reduced functioning is evidence of his lack of testamentary capacity and capacity to revoke his trust." was a commentary by the court on that evidence following a trial. It does not support the defendants’ argument. that the plaintiffs cannot maintain their claim of undue influence because the allegations of the complaint are internally inconsistent. Facts which may establish that a decedent demonstrated mental infirmity may also support the argument that he is susceptible to undue influence in a particular case. It is possible that an individual such as Mr. Baras may experience deteriorating mental and physical conditions which while not rendering him incompetent, may make him susceptible to undue influence. Plaintiffs made both claims in Fantin v. Fantin, No. FSTCV 166027439S, 2017 WL 4872858, at *17 (Conn.Super.Ct. Sept. 6, 2017) and the court analyzed each according. to the evidence. After hearing all of the evidence in Fantin v. Fantin, the court stated, "If the court were to find that either of [the testators] lacked capacity to execute the third amendment to his or her revocable trust, the issue of undue influence would be essentially moot." The above statement by the court must be understood in the context of a full examination of the evidence at a trial wherein the court concluded that it could not render judgment on both counts, not as support for the defendant’s argument that the claims of undue influence and lack of capacity cannot be pled in the same complaint. The court concludes that defendant’s claims in the motion to strike are premature at this stage of the case.
Arguing in the alternative, the defendants state that Count Two should be stricken on the basis that the plaintiffs have failed to allege the elements necessary to maintain a cause of action alleging undue influence. The plaintiffs have alleged that the decedent was an individual suffering from diminished mental and physical capacity which rendered him susceptible to undue influence, especially by a person in the position of his wife, Francine Baras, that the Second Will and Trust Amendment were prepared at her behest and that she exploited her position of trust and confidence to cause Mr. Baras to rewrite his estate plan when he would not have otherwise done so. Mr. Baras may well have had diminished capacity to understand the nature of his actions at the time he was purportedly unduly influenced.
The evidence presented at the trial on the merits will provide the court with the opportunity to determine, "what subjected the decedent to influence; was it her age and/or physical and/or mental condition?" See Markowitz v. Villa, No. CV 166060963S, 2017 WL 960769, at *4 (Conn.Super.Ct. Jan. 26, 2017) . Unlike the defendant’s husband and son who handled the decedent’s finances in Markowitz v. Villa, supra, the defendant here is the spouse of the decedent, a relationship which by its very intimacy, although not dispositive, is sufficient as alleged in this complaint to support an allegation that the defendant caused Mr. Baras to execute the Second Will and Trust Amendment "by exploiting her position of trust and confidence," thereby exerting undue influence oved him under the circumstances.
Finally, by the allegation that the defendant caused the decedent to sign the Second Will and Trust Amendment which changed his previous estate plan such that his children were disinherited, the plaintiffs have alleged facts which would satisfy the element requiring a result that indicates undue influence. The decisions by various other courts following a trial where the plaintiff has the evidentiary burden, do not warrant a different result than the court reaches here on the motion to strike. The court therefore concludes that the plaintiffs have adequately pleaded a cause of action sounding in undue influence in Count Two of the Complaint. Based on the above summary of the factual allegations and an analysis of relevant case law, the court concludes that the plaintiffs have sufficiently alleged that the defendant had an opportunity to exert influence over the decedent sufficient to state a claim against the defendants for undue influence and to withstand a motion to strike.
D. Count Three- Tortious Interference with Inheritance
Count Three of Plaintiffs’ Complaint should be stricken for two reasons. Initially, Count Three should be stricken on the basis that Connecticut Appellate Courts have not expressly recognized, thoroughly analyzed, or defined the remedy for a cause of action sounding in tortious interference with an expected inheritance. Arguing in the alternative, Count Three should be stricken on the basis that the Plaintiffs fail to properly allege a cause of action for Tortious Interference with Inheritance. Specifically, Plaintiffs fail to properly allege that the Defendants’ purported interference was "tortious." For the reasons set forth herein, Count Three should be stricken.
The defendants argue that Count Three should be stricken on the basis that the tort of intentional interference with an expected inheritance is not a viable cause of action in Connecticut. "A motion to strike is the proper procedural vehicle ... to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Golden v. Hamer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5008396 (August 25, 2009, Pavia, J.).
Noting that there is a split among Superior Court decisions as to whether the tort of interference with an expected inheritance is a valid cause of action in Connecticut, the defendants urge the court to adopt the position taken by a minority of the courts which have examined this issue and decline to recognize the validity of the tort. The primary rationale as expressed by the courts which have declined to recognize the tort of interference with expectancy of an inheritance is the lack of appellate authority.
This fundamental rationale as argued by the defendants as set forth in the cases for finding that a cause of action for tortious interference with an expected inheritance does not exist in Connecticut is that our appellate courts have not expressly recognized, thoroughly analyzed or defined the remedy for this cause of action. The defendants also argue that the courts have been inconsistent in determination of the necessary elements for this cause of action and that those courts which have recognized the viability of this cause of action are factually distinguishable. In support of their argument they cite Eder v. Eder, Superior Court, judicial district of New Haven. Docket No. NNHCV136036446 (June 10, 2014, Nazzaro, J.) ; Moore v. Brower, Superior Court, judicial district of Waterbury, Docket No. X10-CV-054010227-S (June 14, 2006, Munro, J.) , and Meyer v. Peck, supra, 46 Conn.L.Rptr. at 817; DiMaria v. Silvester, supra, 89 F.Supp.2d at 196 n.2.
In the alternative, the defendants argue that the plaintiffs have failed to properly allege a cause of action sounding in tortious interference with an expected inheritance. They maintain that to the extent this court elects to recognize the tort of interfering with an expected inheritance; Count Three should nonetheless be stricken on the alternative basis that it fails to properly allege a cause-of action for such a claim because the plaintiffs fail to properly allege that the Defendants’ purported conduct was "tortious."
The majority of superior court judges who have addressed the validity of the tort of interference with expectancy of inheritance have recognized it as a valid cause of action. Decisions finding that tortious interference with an expected inheritance is a valid cause of action have noted that the elements for such a cause of action are: "(1) the existence of an expected inheritance; (2) the defendant’s knowledge of the expectancy; (3) tortious conduct by the defendant; and (4) actual damages to the plaintiff resulting from the defendant’s conduct." Hart v. Hart, Superior Court, judicial district of Windham, Docket No. CV-14-6007918-S (August 28, 2014, Boland, J.) (58 Conn.L.Rptr. 900, 903).
The recent case of Wild v. Cocivera, 2016 WL 3912348*5 (Conn.Super.; 6/16/2016, Noble, J.) analyzed the split of authority applying the provisions of the Restatement (Second) of Torts which recognizes the viability of the tort of interference with expectation of an inheritance. As stated therein, "[s]ection 774B of the Restatement Second of Torts, an authority often relied on by our appellate courts in outlining the contours of tort law in our state, provides for a claim of tortious interference with an inheritance under circumstances similar to those of the more established cause of action of tortious interference with contract or business expectancy. Section 774B, which is entitled Interference with Other Forms of Advantageous Economic Relations provides: ‘One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.’ 4 Restatement (Second), Torts § 774B, p. 58 (1979)." DePasquale v. Hennessy, Superior Court, judicial district of Hartford, Docket No. CV-10-6007470-S (August 27, 2010) (50 Conn.L.Rptr. 605). "Thus, in an action for interference with expectancy of inheritance, the plaintiff is required to allege that the defendant prevented the plaintiff from receiving an inheritance by fraud, duress, or other tortious means." Dugan v. Estate of Mariani, No. CV 136019901S, 2014 WL 5472177, at *3 (Conn.Super.Ct. Sept. 30, 2014) .
In Count Three the plaintiffs have alleged that Mrs. Baras had actual knowledge of the plaintiffs’ expectation of an inheritance by virtue of the First Will executed in 2002, tortious conduct by Mrs. Baras, i.e., that she caused the decedent’s will and trust to be rewritten at the time, disinheriting the plaintiffs at a time when he had experienced deterioration of his physical and mental health, and that they were damaged thereby.
The plaintiff maintains that these allegations are sufficient to satisfy the requirement of adequately pleading tortious conduct. The allegation of tortious conduct which was absent in the case of Markowitz v. Villa, No. CV 166060963S, 2017 WL 960769, at *20 (Conn.Super.Ct. Jan. 26, 2017), is alleged in paragraph 16 of the plaintiff’s complaint where it is alleged that prior to 2014, the decedent had created an estate plan that distributed his assets between his children and his widow, that Mrs. Baras caused the Second Will and Trust Amendment, which effectively disinherited the plaintiffs to be prepared and exerted influence over Mr. Baras to sign the revised estate documents and that the plaintiffs were damaged as a result. The fact that the plaintiffs unknowingly submitted the First Will to the probate court only to discover the existence of the Second Will and Trust Amendment when the defendant submitted them to the probate court two weeks later further supports their claim of tortious interference with their expected inheritance.
The allegations of tortious conduct by the defendant set forth in the plaintiffs’ Third Amended Complaint distinguish this case from those cited by the defendants where the necessary allegations were found to be absent. The court therefore concludes that. the allegations that the revised documents were prepared at the behest of Mrs. Baras in addition to her role in assuring their execution are sufficient to allege tortious conduct by the defendant and to plead a claim of tortious interference with expectancy of an inheritance.
E. Count Four-Breach of Fiduciary Duty as Trustee
It is a matter of fact that Mrs. Baras had the duties and responsibilities of a trustee in her role as trustee of the Robert Baras Revocable Trust which was created on June 6, 2013 and the Living Trust. Mrs. Baras is a co-trustee on both trust documents. The subject Trust Amendment in this action is an amendment to the Robert Baras Revocable Trust. Together the Second Will and Trust Amendment represented the revised estate plan of Mr. Baras. The plaintiff has alleged, "Through her actions in causing Mr. Baras to rewrite his will and trust, the Defendant advanced her own interests to the detriment of the Plaintiffs." The plaintiff further alleges, "As a further consequence of her actions in revising Mr. Baras’ estate plan, Mrs. Baras gained sole control over Mr. Baras’ assets." Finally, the plaintiffs claim to have suffered damages as a result of the defendant’s actions. The plaintiff has adequately pleaded a claim against Mrs. Baras for breach of her duties. Whether the defendant breached her duties as trustee and the extent to which the plaintiffs have suffered damages as a result remains a matter of proof at trial. The court concludes that the plaintiffs have adequately pleaded a claim against the defendant for breach of fiduciary duty as trustee.
F. Count Five-Breach of Fiduciary Duty as Executrix
The defendants argue that Count Five of plaintiffs’ complaint fails to properly allege a cause of action against Mrs. Baras for Breach of Fiduciary Duty in her capacity as Executrix of the Estate of Robert Baras because the plaintiffs fail to adequately allege the existence of a fiduciary relationship at any time relevant to their claims.
Our Supreme Court has "refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982). The appellate court has held, "a prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship ..." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "[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." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006).
The plaintiffs have alleged that Francine Baras had an independent fiduciary relationship with the plaintiffs upon her appointment to the position of Executrix which also related back to actions which she took prior to Mr. Baras’ death. Plaintiffs claim that Mrs. Baras breached the fiduciary duties she owes the plaintiffs in her capacity as Executrix of the Estate "by administering the Second Will, which she knew to be contrary to the true estate plan created by Mr. Baras under the First Will. The defendants argue that the plaintiffs do not allege, nor can they allege, that they are beneficiaries under the Second Will, a condition necessary for the imposition of a fiduciary relationship between the plaintiffs and the defendant. See Stuart v. Freiberg, 316 Conn. 809, 846, 116 A.3d 1195, 1217 (2015) ("Such fiduciary, in the administration of an estate, owes a duty to beneficiaries to act in a manner which protects the beneficiaries’ interests").
The defendants argue that even assuming they had such an interest under the Second Will and Trust Amendment, any wrongful conduct as alleged took place before Mr. Baras’ death, at a point in time prior to the creation and existence of any fiduciary relationship between Mrs. Baras, as Executrix, and the plaintiffs based on the allegation that, "The Defendant’s fiduciary duty to the Plaintiffs as Executrix commenced at the time she was appointed Executrix by the Probate Court on June 6, 2017." In this case, although the consequences of the defendant’s alleged wrongful actions were only discovered after Mr. Baras died, the actions for which the plaintiffs seek to hold Mrs. Baras accountable all occurred before his death at a time when the defendant did not owe the plaintiffs a duty as executrix.
However, the defendants’ argument is circular in nature. It begs the question of whether an individual can avoid responsibility as executrix to former beneficiaries where she has been directly responsible for eliminating them from the will either by causing the testator to execute testamentary documents when he lacked capacity or by exerting undue influence over their execution. The defendant is both executrix of the Second Will and its primary beneficiary. The plaintiffs have alleged facts which have raised questions regarding the defendant Mrs. Baras’ role allegedly influencing the revision of the decedent’s estate plan and her role as Executrix of his estate which are sufficient to state a cognizable against Francine Baras in her capacity as Executrix of the estate of Robert Baras.
G. Count Six-Conversion
The Defendants next move to strike Count Six of the Complaint on the basis that plaintiffs fail to sufficiently allege that the defendant unlawfully assumed and exercised ownership over their property because the plaintiffs allege in their complaint that they merely possessed an expectancy of an inheritance with which the Defendants’ purportedly interfered by means of undue influence.
"The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights ... Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
Although our courts recognize that money can clearly be subject to conversion, "[A]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money ... It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use." Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 772. Thus, "[e]xpectancy is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist. The moment of the decedent’s death determines the right of inheritance or testamentary succession." (Citations omitted.) Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548, 550 (1978).
There is no controlling authority on the right to make a claim for conversion regarding an inheritance. Connecticut courts have held that an expectation of an inheritance cannot form the basis of a conversion claim as a matter of law. In Markowitz v. Villa, Superior Court, judicial district of New Haven, Docket No. CV166060963S (January 26, 2017, Wilson, J.) , the court granted the defendants’ Motion to Strike the plaintiffs’ conversion claim and held, ‘[t]hus, even if the plaintiffs had sufficiently alleged an expectancy of inheritance, they would only possess an expectation of receiving property at the time the decedent made changes to her bank accounts. The plaintiffs did not have any ‘legal ownership or right to possession in ... the specifically identifiable moneys’ in those accounts at the time of the decedent’s death"). "An action for conversion of funds may not be maintained to satisfy a mere obligation to pay money ... It must be shown that the money claimed, or its equivalent, belonged at all times to the Plaintiff and that the Defendant converted it to his own use." Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 772, 905 A.2d 623 (2006). See also, Traversa v. Nielson, Superior Court, judicial district of Middlesex at Middletown, Docket No. MMXCV 156014026S (April 5, 2016, Domnarski, J.) ("Since the plaintiff had no legal right to the monies at the time of Ms. Traversa’s death, the ... count alleging conversion must be stricken").
The court in Moore v. Brewer, supra, reached a different result when deciding whether to grant a motion to strike a claim based on the reasoning that the plaintiff held more than a mere expectancy in the subject property. "Specifically, because the alleged acts of conversion occurred after the decedent passed away, the plaintiff’s expectancy of an inheritance ripened into a vested property right for the purpose of his conversion claim." See Krause v. Krause, supra . The defendants argue that, similar to the plaintiff in Markowitz, the plaintiffs herein possessed, at best, an expectation of receiving property upon Mr. Baras’ death. The distinction which the plaintiffs argue is their allegation that their beneficiary interest in the estate and trust is sufficient to establish that the assets of the estate and trust belonged, in part, to them. The court has considered this claim and concludes that it does not qualify as a matter of law to maintain a claim for conversion against the defendants under the facts as alleged by the plaintiffs in this case. The crux of the plaintiff’s claim in Moore v. Brewer, supra, was that the defendant, as executrix of Mr. Moore’s will, claimed unfettered discretion under the will to distribute his property in a manner that excluded the plaintiff who was an heir at law. "While the defendant’s proffered construction of the will may ... ultimately prevail, for the purposes of a motion to strike, the court concludes the plaintiff has sufficiently alleged an ownership interest in the property bequeathed pursuant to Article I of the will. A factual and/or legal inquiry into the intent of the decedent ... would be inappropriate at this legal juncture." The Moore court further reasoned that the plaintiff held more than a mere expectancy in the subject property "because the alleged acts of conversion occurred after the decedent passed away, the plaintiff’s expectancy of an inheritance ripened into a vested property right for the purpose of the conversion claim." Finally, the court in Moore v. Brower rejected the defendant’s argument that in order to maintain a claim for conversion a plaintiff must identify specific property to which he is entitled. Comparing the Markowitz and Moore cases, the different results are based on the Markowitz court’s conclusion that an expected inheritance is the bare hope of succession to the property of another ... Such hope is inchoate." Although the Markowitz court acknowledges, "The moment of the decedent’s death determines the right of inheritance or testamentary succession," consistent with the statement by the Moore court that as of the decedent’s death, "the plaintiff’s expectancy ripened into a vested property right for the purpose of his conversion claim," it reached a contrary conclusion on the motion to strike the conversion claim. Having carefully reviewed the analysis of both courts, this court is persuaded by that of Moore v. Brower. The motion to strike Count Six of the complaint is denied.
H. Count Seven- Civil Theft
The defendants argue that for the same reasons as set forth in Section G, supra, the plaintiffs’ claim under Count Seven should be stricken on the basis that the plaintiffs possessed, at best, an expectancy of an inheritance at the time of Mr. Baras’ death, which cannot form the basis of a civil theft claim as a matter of law.
Although the right to the expectancy of an inheritance is cognizable as a right entitled to the protection of law, the expectancy of an inheritance does not alone confer legal rights applicable to claims relating to physical property. The defendant aptly noted that the expectancy of an inheritance does not confer property ownership and therefore, the plaintiffs did not have any legal ownership or right to possession of Mr. Baras’ assets at the time of his death as a matter of law. Thus, the court concludes that the plaintiffs fail to sufficiently allege a statutory theft claim because prior to the decedent’s death they possessed, at best, an expectancy of receiving money. The mere expectancy of receiving money is insufficient as a matter of law to maintain a claim for civil theft under the facts as pleaded in the complaint. The defendants’ Motion to Strike Count Seven is granted.
I. Count Eight- Unjust Enrichment
The defendants argue that the plaintiffs have failed to properly allege a cause of action for unjust enrichment against the defendants in Count Eight of their Complaint because they have failed to allege the existence of a contract between themselves and the defendant. For this reason they claim that Count Eight must be stricken. It is true that under the law of this state, in order to prevail on an unjust enrichment claim, a plaintiff must plead and prove three things: "(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiff’s detriment." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283 (1994).
The defendants maintain that Count Eight must be stricken on the basis that the plaintiffs fail to allege the fundamental element to successfully plead a cause of action for unjust enrichment, that they were entitled to payment of any kind from Mrs. Baras. See Gist & Herlin Press, Inc. v. Poland, No. HHBX 03CV054006522S, 2005 WL 2857666, at *3 (Conn.Super.Ct. Oct. 14, 2005) ("the basic elements of unjust enrichment must be pleaded, including that the defendants unjustly did not pay the plaintiffs the benefits received. That is not alleged. The motion to strike the Sixth Count is granted"); Charter Oak Fed. Credit Union v. Paige, No. CV- 07-5003656, 2009 WL 3416482, at *5 (Conn.Super.Ct. Sept. 23, 2009) ("Because the defendants have failed to allege any facts demonstrating that the plaintiff received any benefit that it failed to pay for, the court grants the motion to strike as to count three").
The doctrine of unjust enrichment exists generally to avoid an inequitable result when a party has conferred a benefit on another, but an action in contract cannot be maintained. See Hartford Whalers Club v. The Uniroyal Tire Co., 231 Conn. 276, 282, 649 A.2d 518. The case of Moore v. Brower, Superior Court, judicial district of Waterbury, Docket No., X10-UWY054010227 (June 14, 2006, Munro, J.) , is relevant to the court’s analysis of the plaintiffs’ unjust enrichment claim. In that case, the plaintiffs challenged the last will and testament of the decedent. The plaintiffs’ complaint alleged that the defendants unduly influenced the decedent to execute a will that dispersed "virtually all of his assets" to the defendants; that the decedent, who was infirm as a result of illness and age, lacked testamentary capacity to execute a will; and that the decedent, for similar reasons, lacked the capacity to create a trust.
The court granted the defendants’ motion to strike the unjust enrichment count based on the following analysis of the doctrine of unjust enrichment as applied to the facts of the case which, like the present case, involved claims against the executrix of an estate:
The doctrine of unjust enrichment exists generally to avoid an inequitable result when a party has conferred a benefit upon another, but an action on contract cannot be maintained ... Unjust enrichment, then, is a species of quasi-contract. The doctrinal difficulties attendant to applying this cause of action to the present facts- where there is no relationship between the parties under which it can be said that the plaintiff somehow conferred a benefit upon the defendants- are acute. This is not an action where, notwithstanding a failure in the elements of contract formation or an excuse in performance, it would be inequitable for the defendants to retain some benefit conferred by the plaintiff. This is, at core, an action to contest a will. The court recognizes that unjust enrichment is a flexible, equitable doctrine ... and that a contract, whether express or implied, is not a prerequisite to the maintenance of an action for unjust enrichment. It would, however, stretch the doctrine to its breaking point to apply it to the facts as alleged in the complaint. (Internal citations omitted.)
Notably, the Moore court went on to explain:
The point is perhaps best illustrated by the fact that the plaintiff’s unjust enrichment claim in the present case is dependent for its ultimate validity upon the success of the plaintiff’s remaining causes of action challenging the decedent’s will. If the plaintiff succeeds on the other counts, the unjust enrichment claim will be duplicative. However, if those claims ultimately fail, then the unjust enrichment claim will fail as well. This is in stark contrast to the typical case where unjust enrichment is utilized as an equitable doctrine to avoid injustice if the plaintiff’s claims at law fail.
Similarly, in Markowitz v. Villa, No. CV 166060963S, 2017 WL 960769, at *5 (Conn.Super.Ct. Jan. 26, 2017) the court concluded that "[T]he plaintiffs have not alleged, nor can they allege, that they somehow conferred a benefit upon the defendant. The plaintiffs here have alleged that they received a disproportionate share of an inheritance, due to the actions of the decedent in making changes to her savings accounts prior to the execution of her will ... Accordingly, the defendant’s motion to strike count two is granted").
Similar to the plaintiffs in Moore and Markowitz, the plaintiffs herein have alleged that as a result of the defendant Mrs. Baras’ actions effecting the execution of the Second Will and Trust Amendment, they were effectively disinherited from almost all of the decedent’s assets. They have not alleged, nor can they allege, that they somehow conferred a benefit upon the defendant. Rather, plaintiffs allege in their complaint that Mrs. Baras purportedly benefitted herself by her undue influence over Mr. Baras, and that as a result "the Defendant has been unjustly enriched in her unconscionable retention of the assets of the Estate and/or the Trust to her benefit and to the detriment of the Plaintiffs." These allegations are sufficient to allege that Mrs. Baras by her actions allegedly obtained a larger share of Mr. Baras’ estate to the detriment of the plaintiffs and contrary to his intentions. However, they fail to state a claim for unjust enrichment against the defendant as that right is recognized by our courts. The court concludes therefore that plaintiffs’ allegations in Count Eight are insufficient to maintain a cause of action for unjust enrichment in this case as a matter of law. The motion to strike Count Eight of the Complaint is granted.
IV. CONCLUSION
For the foregoing reasons, this court denies the motion to strike Counts One through Count Six of the Plaintiffs’ Complaint. The court grants the motion to strike Counts Seven and Eight.