Opinion
No. MMX CV09 401 0266 S
December 17, 2009
MEMORANDUM OF DECISION
Pursuant to Practice Book § 10-31(a)(1) the defendant Frank Koba has moved to dismiss the plaintiffs' appeal from the decision of the Middletown Probate Court admitting the last will and testament of Valentine L. Specyalski dated October 28, 2002 ("the 2002 will") to probate.
The plaintiffs allege that they are aggrieved by such order because they are nieces or nephews of the decedent; because of an alleged defect in the will such will is a nullity; and under the laws of intestacy of the State of Connecticut, they have an interest in the property of the estate. The basis for the defendant Frank Koba's motion to dismiss is lack of subject matter jurisdiction, and he has alleged that even if the 2002 will is a nullity, the decedent executed an earlier will on May 10, 1990 ("the 1990 will") and that will does not have the defect that allegedly exists in the 2002 will. The plaintiff submitted an affidavit from the attorney who prepared the 1990 and the 2002 wills, and the attorney attached a copy of the 1990 will to his affidavit. In neither will does the decedent leave a bequest to any of the plaintiffs.
In State v. Boyle, 287 Conn. 478, 485-86, 949 A.2d 460 (2008), the Supreme Court set forth the standards for determining whether a matter is justiciable:
. . . mootness implicates subject matter jurisdiction . . ."Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982) . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citation omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).
See also In re Jorden R., 293 Conn. 539, 555-56 (2009).
A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction. Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008); Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 91, 713 A.2d 1267 (1998).
The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003); Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
The court is required to construe the facts as alleged in the complaint in a manner most favorable to the pleader when considering a motion to dismiss. See Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. at 432-33, 829 A.2d 801 (2003). In this case, however, the defendant Frank Koba has submitted evidence not contained in the complaint concerning the 1990 will, see Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983), and the plaintiffs did not respond to such evidence in their opposition papers except to assert that the plaintiffs have made no concession as to the admissibility of the will and that defendant Frank Kobe's argument that the 1990 will would be effective should the 2002 will be found invalid is unsupported and without merit. The basis for those statements was not provided in the form of evidence.
The evidence before the court through the affidavit of Attorney Lang is that he duly administered the proper oath to Valentine L. Specyalski for the 1990 will, and a true and correct copy was attached to his affidavit. Attorney Lang's firm retained custody of the original counterpart of the 1990 will and on June 29, 2009, his firm transmitted such original counterpart to the Middletown Probate Court for filing. Attorney Lang averred that he duly administered the proper oath to Mr. Specyalski and to the two witnesses in connection with the execution of the 1990 will; he witnessed Mr. Specyalski's execution of such will; Mr. Specyalski signed the 1990 will in the presence of the two witnesses; the two witnesses signed the 1990 will in Attorney Lang's presence, in the presence of Mr. Specyalski and of each other; and Attorney Lang believes that Mr. Specyalski was of sound mind, memory and judgment at the time he signed the 1990 will.
If the 2002 will were to be excluded from probate, the defendant Frank Kobe asserts that the decedent's estate would pass under the 1990 will in which the plaintiffs have no interest. He cites the court to the law of other states concerning the impact of an earlier will (even if not probated) on standing, including the case of Jennings v. Bridgeford, 218 Tenn. 287, 403 S.W.2d 289 (1966) (" Jennings"). Like this case, Jennings involved two wills, a 1953 and a 1961 will. The 1961 will was contested on the ground that the decedent at the time of executing the document, was not mentally competent and that she executed the will under duress or as the result of undue influence. Jennings v. Bridgeford, supra, 218 Tenn. at 289. The appellant had no interest in the estate under either will. Id., 290. The Tennessee Supreme Court examined the 1953 will and found it to be facially valid, and noted that for lack of standing purposes the validity of a will does not have to be established by probate. Id., 291. Such Court concluded:
We, therefore, hold that where a Will, which on its face is valid and is not challenged as being improperly executed, and which leaves nothing to one who is attempting to attack collaterally the probate of a subsequent Will, that person has no interest entitling her to set aside the probate of the later Will.
Id., 291-92.
In a Florida case, Newman v. Newman, 766 So.2d 1091, 1094 (Fla.App. 5 Dist. 2000), review denied, 786 So.2d 1187 (Fla. 2001), a son
failed to meet his burden to show that his father's 1954 will, which in essence disinherited him, was invalid; and therefore, he ha[d] no standing to contest the 1964 will.
But see Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla.App. 5 Dist. 2005) (decedent's three children were not named as beneficiaries in three prior wills but did have standing to contest the fourth and latest will only on the claim of undue influence).
In a Pennsylvania case, In re Estate of Briskman, 2002 PA Super. 287, 808 A.2d 928 (2002), an appointment in an earlier will as successor trustee did not confer standing on such trustee to contest a later will.
Because of the existence of the 1990 will, the execution and validity of which was not put into issue by the plaintiffs in response to the evidence submitted by the defendant Frank Koba in support of his motion to dismiss, the plaintiffs lack standing to appeal from the judgment of the Middletown Probate Court admitting the 2002 will for probate. The plaintiffs did not demonstrate that the determination of the controversy will result in practical relief to them. See State v. Boyle, supra, 287 Conn. at 485-86.