Opinion
LLICV165008163S
08-30-2017
Jessica Splaine v. James Lautier
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge.
In the operative second amended complaint, the self-represented plaintiff, Jessica Splaine alleges in two counts that her father, Dennis Lautier (the decedent), lacked mental capacity to sign testamentary documents and that her uncle, James Lautier (the defendant), exerted undue influence over the decedent during the drafting and execution of these documents. The defendant is implicitly sued both in his capacity as trustee and individually. The court previously granted a motion to strike counts three and four, which alleged breach of fiduciary duty and Medicaid fraud. (Dkt. #110.10.) The defendant counterclaims for the value of the plaintiff's use and occupancy and use of utilities in the family home in Torrington, as well as for attorneys fees. The court has jurisdiction pursuant to General Statutes § 45a-98(b). The court conducted a bench trial on August 15 and 16, 2017. This memorandum constitutes the court's decision in the case.
Section 45a-98(b) provides: " The jurisdiction of Probate Courts to determine title or rights or to construe instruments or to apply the doctrine of cy pres or approximation pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction."
I
The decedent, after being diagnosed with liver disease and cancer, met with Attorney George Bickford on January 20 and 29, 2015 to prepare testamentary documents. On the latter date, the decedent signed a trust, a will, and a quitclaim deed. These documents provided that, upon the decedent's death, the estate would be divided into equal thirds among the plaintiff, the defendant, and the plaintiff's minor son. Both the plaintiff's interest and her son's interest were to go into a trust for which the defendant would be the trustee. The decedent died of progressive metastatic lung cancer at age 59 on November 2, 2015.
The plaintiff's general claim is that the decedent would naturally have left most of his estate of over $200,000 to her free and clear of any trust, would have provided for her second child with whom she was pregnant at the time of the decedent's death, and would not have given one-third of his estate to the defendant. The plaintiff seeks to invalidate the trust and have the estate pass by the laws of intestate succession.
II
The first count alleges the decedent's lack of mental competence. The well established test for testamentary capacity is that the testator must have " mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution." Stanton v. Grigley, 177 Conn. 558, 564, 418 A.2d 923, 927 (1979). " While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity." Id.
In this case, the court has no question that the decedent had sufficient mental capacity to make out his testamentary documents in January 2015. The principal evidence of capacity came from Bickford, whose testimony the court fully credits. Bickford took notes of his meetings, had an excellent independent recollection of them, and impressed the court with the fact that he had refused to allow other clients to sign testamentary documents when he had doubts about their competency. Bickford testified that the decedent was adamant and clear about his wishes, and that the decedent was fully competent, oriented, and knowledgeable. Three independent witnesses as well as the defendant corroborated Bickford's observations. The gist of their testimony was that, in January 2015, the decedent was physically frail but mentally sharp, did not seem confused, and could handle his own affairs. The plaintiff offered no significant evidence to the contrary, in part because she did not see her father much in January 2015. Therefore, the court concludes that the plaintiff has failed to meet her burden of proof on count one.
Although the testamentary documents misspelled the plaintiff's last name on several occasions, Bickford credibly testified that the decedent was simply not sure of the correct spelling.
III
In count two, the plaintiff alleges that the defendant exercised undue influence over the decedent. " Undue influence is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised . . . It is stated generally that there are four elements of undue influence: (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." (Citations omitted; internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006). The burden of proof on the issue of undue influence rests on the one alleging it. See Bucchi v. Gleason, 137 Conn. 25, 30, 74 A.2d 212 (1950).
The defendant contends that the plaintiff's burden of proof is clear and convincing evidence. Several Superior Court decisions support that contention, but these cases do not cite to any Connecticut appellate case in this precise context. See, e.g., Markowitz v. Villa, No. CV166060963S, 2017 WL 960769, at *3 (Conn.Super.Ct. Jan. 26, 2017) (citing R. Folsom, Probate Litigation in Connecticut (2d Ed. 2015) § 1:15, pp. 1-31 through 1-33); Gennotti v. Jetmore, No. 054001918, 2007 WL 3087950, at *4 (Conn.Super.Ct. Oct. 3, 2007) (citing Dunham v. Dunham, 204 Conn. 303, 321-22, 528 A.2d 1123 (1987) on breach of a fiduciary duty).
The evidence established that the defendant talked to the decedent regularly before January 29, 2015 and that occasionally the decedent did raise the subject of his estate plans. The defendant performed several tasks for the decedent, such as contacting Bickford, but never told the decedent that he wanted money or that he was entitled to some sort of distribution. The defendant was present at Bickford's office on January 20 and 29, 2015, but was not part of Bickford's private meetings with the decedent to discuss his intentions. The defendant actually had no interest in being part of the estate because he had had little relationship with the plaintiff in the past and did not want to deal with her in the future. Bickford, for his part, never felt that the defendant was executing undue influence.
Several of the defendant's discovery responses about his assistance to the decedent with estate planning were inaccurate. For example, the defendant stated that he had " no involvement" in finding a lawyer or preparing the estate and that he only witnessed one meeting between Bickford and the decedent. Even if the defendant believed that these answers were true when he made them in March 2017, as he testified, the defendant and counsel had a continuing duty to supplement and correct them when it became apparent that they were wrong. See Practice Book § 13-15.
The result of the decedent's disposition also does not suggest undue influence. This case is not one in which the decedent completely wrote the plaintiff out of his plans. On the contrary, the plaintiff and her first son will receive two-thirds of the estate, albeit in trust, with the defendant receiving the remaining one-third. The plaintiff's claim that this result reflects undue influence is unjustified. The decedent had felt estranged from the plaintiff for many years and, during the first part of 2015 when the decedent was sick, the plaintiff traveled to Arizona on a job. In contrast, the defendant had been the decedent's brother and regular companion for decades and had helped take care of him when he became sick. The decedent also provided the defendant and Bickford with a specific rationale for his ultimate plan. The decedent did not fully trust the plaintiff to manage her own funds, he trusted the defendant and knew that he would take care of the plaintiff, and he did not want the state to recoup any funds that it had paid the plaintiff through Medicaid. All of these factors weighed in favor of leaving the plaintiff's disposition in a trust managed by the defendant. For all these reasons, the plaintiff has failed to prove undue influence.
IV
The court turns to the counterclaim. Count one seeks compensation from the plaintiff for use and occupancy, utilities, taxes, and insurance paid by the trust from shortly after the decedent's death on November 2, 2015, when the plaintiff moved into his residence at 50 Yale Avenue in Torrington, to the present time. Count two asks for liquidation of the residence in order to distribute the estate assets. Count three alleges a set off against the plaintiff's distribution of any amounts due the defendant from count one.
Defense counsel stated at oral argument that the defendant is not pursuing this count at this time. The court therefore enters judgment for the plaintiff on this count.
The evidence revealed that the first notice that the plaintiff received that she should pay use and occupancy for the residence was the counterclaim filed by the defendant on June 7, 2017. Although this case is not one involving summary process, in summary process cases the landlord normally initiates a request for use and occupancy payments by filing a motion in court. This motion " shall include a statement of the last agreed-upon rent." General Statutes § 47a-26b(a). The basic concept is that the tenant should have notice of her obligation to pay and of the amount requested. The plaintiff here did not have that notice until June 7, 2017 and therefore is not responsible for use and occupancy up to that point. In its discretion, the court will order that the plaintiff pay for use and occupancy to the estate from the time of this court's judgment in this case until there is some other agreement or the plaintiff moves out. The evidence established a reasonable rental fee of $1,200 per month.
The plaintiff agreed at oral argument to pay property taxes and water bills. The defendant, as trustee, submitted a statement itemizing all utilities, property tax, and what appears to be homeowner's insurance for the period from August 9, 2016 to the present time. The total is $10,223.66. The court grants the defendant's request in this amount and, pursuant to count three of the counterclaim, orders that this amount be set off from the distribution to the plaintiff or the plaintiff's principal in the trust. The court orders the plaintiff to pay or reimburse these bills going forward on a monthly basis.
At trial, the defendant made a request for attorneys fees, but the counterclaim does not include attorneys fees in the items that the defendant seeks to recover. Further, the defendant did not provide the court or the plaintiff with a copy of exhibit M, the defendant's attorneys fees itemization, until the second day of trial, contrary to the pretrial orders in this case. Accordingly, the court denies the defendant's request for attorneys fees.
V
Judgment shall enter for the defendant on the complaint, for the defendant on counts one and three of the counterclaim, as described and limited above, and for the plaintiff on count two of the counterclaim.
It is so ordered.