Opinion
No. FST CV 06 4009884 S
February 24, 2009
MEMORANDUM OF DECISION
This is an appeal from an order and decree of the Probate Court of the District of Stamford, admitting to probate the will of Daniel Sabia, deceased, which decree was dated June 16, 2006. That court allowed the appeal from probate by decree dated July 20, 2006.
In her Reasons of Appeal, filed December 7, 2006, the plaintiff, Lucille Pierce, states that the witnesses who subscribed their names on the will did not do so in the presence of the deceased; that the deceased was of unsound mind at the time of his execution of the will because of his illness and the medications he was taking; that he was subject to delusions as a result of his medications, which affected his mental capacity to sign the will; that he executed the will while he was under the influence, domination and control of his niece, Catherine Haybeck, and as a result, the instrument was not the free and voluntary expression of his testamentary intent.
The facts may be summarized as follows:
On February 1, 2004 the deceased, Daniel Sabia, was admitted to the Stamford Hospital with breathing problems and with pneumonia, which worsened in time and became a serious medical issue. He was placed in the Intensive Care Unit and intubated for the first time on February 5, 2004. He was extubated on February 11, 2004 and moved to the step-down unit. On the 13th he began having more difficulty breathing and on the 14th was returned to ICU and restrained. Where Mr. Sabia was actually located in the hospital on the 24th of February 2004 is a contested factual issue in the case.
Dr. Anne Brewer, the decedent's attending physician, testified as a fact witness. She was not disclosed as an expert before trial and her expert opinions were objected to and were disallowed by the court. She did not see the testator on February 24th, nor for three days before that.
On February 23rd or 24th, Mr. Sabia asked his niece, Catherine Haybeck, the beneficiary of his estate, to call his lawyer, Peter J. Somma, Jr., because he wanted to sign a will. The lawyer was vacationing and his son, Larry Somma, a lawyer and a partner in his father's practice, responded to the call. At 10:00a.m. on February 24th, the younger Mr. Somma visited Mr. Sabia in his private room in the hospital across from a nurse's station. He was neither intubated or restrained at that time and did not have a tube in his throat, but rather a nasal tube in his nose. He was alert and aware at the time, spoke to Mr. Somma in a low, raspy voice, and conveyed to him how he wanted his estate disposed of.
Mr. Somma understood the instructions and asked Mrs. Haybeck, who was in the room, to have witnesses in the room later in the afternoon when he would return with the drafted will. Between 3:00 and 4:00 that afternoon, he proceeded to conduct the will execution of Mr. Sabia before three witnesses, who were Mr. Somma, Michael Uzar, the decedent's nephew, and Peter Haybeck, son of Catherine Haybeck. Mrs. Haybeck was ordered out of the room during the proceedings. Mr. Somma read the will to the testator, who could not read, and asked him if it disposed of his property in the way in which he wished. He was given a positive response by the testator. Mr. Sabia then signed the will in the presence of the three witnesses. Later that day, Mr. Somma and Peter Haybeck executed, in Mr. Somma's office, an affidavit stating that at the time of execution of his Last Will and Testament, Mr. Sabia appeared to them to be of full age and of sound mind and memory, and that he signed the will in their presence. The testator left his estate to Mrs. Haybeck and died eighteen months later on August 9, 2005.
At trial, the witnesses on the will testified that at the time of executing the will, they were in a private hospital room with Mr. Sabia, that they had been watching television with him, that he had no tube in his throat, and that he appeared alert and understanding of the circumstances. Mr. Somma testified that Mr. Sabia had a tube in his nose, and not in his throat.
There was testimony at trial that the plaintiff was the sister of the testator, had lived with him for the last 35 years, and visited him every day in the hospital, usually in the evening at 5:00 or 6:00 p.m. after dinner. The plaintiff testified also that Mr. Sabia was in intensive care when she saw him that day and had a tube in his throat.
In addition to the claim that the testator was not of sound mind, the plaintiff claims that he was under the undue influence of his niece, Catherine Haybeck. Although there is some testimony by the plaintiff that it was not Mr. Sabia's signature on the will, such a claim was never made in her Reasons of Appeal, and was not pursued in her post-trial brief.
No one disputes that the testator was seriously ill during his stay in the hospital in the month of February 2004. The burden of proof of testamentary capacity for the execution of a will is on the proponent of the will. Stanton v. Grigley, 177 Conn. 558, 564, 418 A.2d 932 (1979).
In this case, Mr. Sabia was alert and knew and understood the business upon which he was engaged at the time of execution. Dr. Brewer did not see or examine the testator on February 24, 2004, the day of the will signing, nor for three days before that. Mr. Sabia was in and out of Intensive Care during his hospital stay, and on October 11, 2005, after the decedent's death and some twenty months after the date of the will signing, the doctor was asked to write a letter concerning his status on February 24, 2004. The letter was admitted into evidence without objection from the defendant, and stated in part, "In view of the grave medical condition and sedation on 2/24/04, I am not sure that he was competent to execute legal documents on that date." Her opinion on that issue does not meet the requirement that it be based upon a reasonable degree of medical certainty or probability, and is discounted by the court as evidence of Mr. Sabia's incompetency at the time of executing the will on February 24, 2004. "The test of testamentary capacity stated in its simplest terms is that the testator must have mind and memory sound enough to enable him to know and understand the business upon which he is engaged, that is the execution of his will at the very time he executes it." Atchison v. Lewis, 131 Conn. 218, 219, 220, 38 A.2d 673 (1944).
The court finds, from the testimony, that Mr. Sabia was in fact of sound mind, memory and understanding at 3:00 to 4:00 o'clock on the afternoon of February 24, 2004. He remembered, at that time, who his lawyer was, and that he had once consulted him some 20 years earlier about drafting a will. All the witnesses to the will found him to be alert and aware of what he was doing. He was seriously ill, but had no fever that day. He enthusiastically affirmed that the will, read to him by Mr. Somma, represented his intent.
The court notes that it is conceivable that Mr. Sabia was in a private room on that afternoon, and in ICU when seen by the plaintiff that evening.
The plaintiff testified that she did not recognize the testator's signature on the will. Although this claim was not raised in the Reasons of Appeal, the court asked her if she could produce any other signature of the deceased for comparison purposes. She offered, without objection from the defendant, a copy of a warranty deed signed by the testator some 40 years ago, or 36 years before his execution of the will, and presumably at a time when he was healthier and stronger. The plaintiff did not pursue this argument in her post-trial brief, and it is deemed abandoned. The court finds that the defendant has met her burden of proof that Daniel Sabia possessed the testamentary capacity to execute his will on the afternoon of February 24, 2004, and did so in accordance with the requirements of the statutes. C.G.S. § 45a-250, 45a, 251.
There is no evidence that the will was not signed in the presence of at least two witnesses.
The plaintiff also claims that the testator was delusional and under the control, domination and influence of Catherine Haybeck when he executed the will and the instrument was therefore not the free and voluntary expression of the testamentary intent of the deceased.
The plaintiff did not pursue the claim of undue influence either in her closing argument or her post-trial brief.
The evidence does not support the claim that Mr. Sabia was subject to delusions. As to the burden of proof on the issue of undue influence, it ordinarily falls upon the party alleging it. In will contests, we recognize an exception to this principle when it appears that a stranger, holding toward the testator a relationship of trust and confidence, is a principal beneficiary under the will and that the natural objects of the testator's bounty are excluded. The burden of proof, in such a situation, is shifted, and there is imposed upon the beneficiary the obligation of disproving, by a clear preponderance of evidence, the exertion of undue influence by him. Berkowitz v. Berkowtiz, 147 Conn. 476, 477, 162 A.2d 709 (1960) (citations omitted). This is not the situation in the present case. Here, although the plaintiff is the sister of the deceased with whom he lived for 35 years, the defendant was not a stranger, but rather his niece with whom he was close. It was she that he asked to call his lawyer about drafting the will. At the time of the execution of the will, the testator was 75 years old and the plaintiff was 72. The beneficiary of his estate, his niece, Catherine Haybeck, was 55 or 56 years old. There is no evidence of undue influence, and no inference thereof to be made.
And, of course, also the niece of the plaintiff.
The plaintiff has failed to meet her burden of proving that the deceased was under the undue influence, domination and control of the defendant so that his will was not a free and voluntary expression of his testamentary intent, i.e., to leave his estate to the defendant, his niece.
In conclusion, the defendant has met her burden of proof establishing that the will of Daniel Sabia was executed in accordance with the requirements of the statutes and, at the very time he executed the will, he had the mental capacity to do so. The plaintiff has failed to meet her burden of proof that the testator was under the undue influence of the defendant. The order of the Probate Court is affirmed and the will is ordered admitted to probate.
SO ORDERED.