Opinion
No. CV03-0181530S
November 29, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is an appeal from the Probate Court's denial of the plaintiff's application for appointment as executor of his mother's estate. Before the Court is the plaintiff's motion for summary judgment sustaining his appeal.
FACTS
Ruth Martin died testate on November 23, 2002. Her will names her husband, Oliver Martin, as her executor and her son, the plaintiff, John Martin, as the alternate executor. Oliver Martin predeceased Ruth Martin on July 11, 1999. The plaintiff filed an application for his appointment as executor of his mother's estate on March 7, 2003. The plaintiff's application was denied by Judge Brunnock of the Waterbury Probate Court on October 8, 2003, and Kevin Daly, Jr., was appointed permanent administrator of the estate. The plaintiff claims he is entitled to judgment based on the mandatory language of the relevant statute and on what he states are the "uncontested facts."
DISCUSSION
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.
As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The plaintiff moves for summary judgment on the grounds that there is no genuine issue of material fact and that, as a result, he is entitled to judgment as a matter of law. His argument is based on the requirements of General Statutes § 45a-290(c) and his assertion that there is no potential conflict of interest with regard to his handling of the Oliver Martin estate.
Section 45a-290 of the Connecticut statutes provides, in relevant part:
(a) If no person has been designated in a will to be executor, or if the person designated in the will to be executor has died or refuses to accept or is incapable of accepting such trust, and no alternate or successor has been named, the court shall commit the administration of the estate, with the will annexed, to any person or persons in accordance with the order of priority for the appointment of administrators . . .
(b) If during the settlement of an estate, the executor or the administrator with the will annexed appointed by the court dies or resigns or is removed from such trust, and no alternate or successor has been named in the will, the court shall appoint an administrator of the estate . . .
(c) If the person designated in the will to be executor has died or refuses to accept or is incapable of accepting such trust, or if during the settlement of the estate, the executor appointed by the court dies, or resigns or is removed from such trust, and the will names an alternate or a successor, the court shall appoint such alternate or successor executor named in said will as executor . . .
Citing case law interpreting § 45a-290(c), the plaintiff argues that the Probate Court has a well established, mandatory duty to appoint him executor of his mother's estate because he is the alternate executor specifically named in her will. See Appeal from Probate of Bencivenga, 30 Conn.App. 334, 338, 620 A.2d 195 (1993), aff'd, 228 Conn. 439, 636 A.2d 832 (1994).
The defendant argues in her memorandum in opposition to the motion for summary judgment that the language of § 45a-290(c) is directory, not mandatory. The defendant argues that because the statute and the court in Appeal from Probate of Bencivenga discuss instances where the Probate Court may appoint someone other than the person named in the testator's will, it was the intent of the legislature that the court have some discretion in appointing an executor. The defendant offers an affidavit wherein she states that the estate of Oliver Martin suffered economic loss as a result of delays in administration of the estate caused by the plaintiff. She attaches the decree of the Probate Court in which the judge cites numerous failures on the part of the plaintiff as fiduciary. The defendant cites no case law supporting her interpretation of "incapable" in the statute. She contends that, based on the. instances of mismanagement cited in the decree, there are genuine issues of material fact as to whether he is capable of acting as executor of the Ruth Martin estate.
The limited case law interpreting § 45a-290(c) consistently indicates that the Probate Court has little or no discretion to appoint as executor someone other than the person named by the testator. "Our law favors virtually no exception to the appointment of an executor or a successor executor named in a will. General Statutes § 45a-290(c) provides that the Probate Court shall appoint such . . . successor executor[s] named in said will as executor[s] . . . A Probate Court has no discretion to appoint someone other than the person named; testators are entitled to select their own executors, and those persons may not be rejected unless excluded by common law or statute." (Internal quotation marks omitted.) Appeal from Probate of Bencivenga, supra, 30 Conn.App. 338. In Appeal from Probate of Bencivenga, the court cites to Smith's Appeal from Probate, 61 Conn. 420, 24 A. 273 (1892), in support of its interpretation. In Smith's Appeal, our Supreme Court stated: "The present appellants contend that if a person is lacking in honesty or integrity or business experience, or, at least, if he is lacking in all three, he is to be deemed incapable to accept the trust. We think this claim is not well founded . . .
It should be remembered that, independently of any statute upon the subject, the rule of the common law was that all persons might be appointed as executors who were mentally capable of executing the duties of the trust, or, as it is otherwise stated, who were capable of making a will, or were not specially disqualified." (Internal quotation marks omitted.) Smith's Appeal from Probate, supra, 61 Conn. 426.
The Smith's Appeal court made it clear that a named executor would not be precluded from serving but for incontrovertible evidence of incompetence.
It is not for this court to determine whether the plaintiff is or is not capable of executing his duties as fiduciary of his mother's estate, but merely to determine whether there is an issue of fact to be decided.
The plaintiff further argues in support of his motion for summary judgment that his appointment would not create a conflict of interest, as the defendant suggests in her memorandum, because the Ruth Martin estate does not have any potential claims against him based on his actions as executor of the Oliver Martin estate. In support of this contention, the plaintiff references an attached copy of Oliver Martin's will, the terms of which the defendant does not dispute. Article II of this will provides that the contents of his home and his personal effects are left to Ruth Martin. The plaintiff avers in his certified affidavit that these effects were, indeed, distributed to Ruth Martin before her death, a fact which the defendant again does not dispute. Article VI of Oliver Martin's will indicates that Article II is the sole testamentary interest he created by his will for Ruth H. Martin. The plaintiff concludes, based on these facts, that no potential conflict of interest exists.
The defendant responds that the plaintiff was effectively removed as fiduciary by the probate court, due to a conflict of interest, pursuant to the replacement of fiduciary statute General Statutes § 45a-242(a), which provides in relevant part:
The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge. § 45a-242(a). CT Page 17966
The defendant apparently argues that the plaintiff was removed as executor of the Ruth Martin estate because the Probate Court determined that he was not able to carry out the fiduciary duties of an executor. Specifically, the defendant alleges that the plaintiff created a conflict of interest with respect to his now serving as executor of the Ruth Martin estate because there may be claims against him for mismanagement and waste based on his execution of the Oliver Martin estate. The defendant asserts that the plaintiff cannot serve as executor of the Ruth Martin estate because, if appointed executor, he would be influenced by self-interest and unable to fairly decide whether to bring an action against himself on behalf of the Ruth Martin estate.
"Whether grounds exist for an executor's removal is a question addressed to the sound discretion of the Probate Court. . . . On appeal from probate, the trial court may exercise the same discretion de novo, reviewing the facts relating to the propriety of removal without regard to the Probate Court's decision . . . An important aspect of an executor's fiduciary responsibility is the duty to maintain an undivided loyalty to the estate . . . [O]ne interested in an estate has the right to have its representative wholly free from conflicting personal interests . . . When the executor of an estate places itself in a position where its interests conflict with those of the estate, the executor's ability to represent fairly the interests of the estate is irreparably tainted. When [such] a situation appears . . . it is the positive duty of the court to remove the executor." (Citations omitted; internal quotation marks omitted.) Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987).
Since there are conflicting statements of fact as to the impact of the final accounting of the Oliver Martin estate on the Ruth Martin estate in the memoranda in support and opposition to the motion, which cannot be satisfactorily resolved by looking to the attached documents, the plaintiff has not met his burden of showing the nonexistence of any issue of material fact regarding the conflict of interest issue raised by the defen-dant. There is additionally an issue of fact regarding the capability of the plaintiff to serve as executor.
The plaintiff's motion for summary judgment is denied.
GALLAGHER, J.