2Oo9 Developments in Connecticut Estate And

I"AW 2OIO] 2Wg DWEI.OPMENTSIN CONTWTICUTESTATE AND PROBATE

2OO9DEVELOPMENTS IN CONNECTICUT ESTATEAND PROBATE LAW

Bv JouNR. IvttrlBv*eNo JnprReYA' Coopsn**

In this article, we provide a summary of recent developments impacting Connecticut estate planning and probate practice. in part t, we discuss2o09'legislative developments' rel- in Part II, we provide a snrvey of selected 2OO9case law evant to the field.

[. Lectst-ertoN In this part, we summarizea number of 2O09-legislative of developmJnts of relevance fo those practicing in the areas estate planning and Probate. A. Pet Thtsts per- Effective october |,?ff/9, Connecticut law allows a of .o* a testamentaryor lifetime trust for the benefit pets.l "t"ut"The trust can benefit one or more animals alive.during tne tfetime of the person-2 The trust must terminate *ht the last surviving animal dies'3 gen- Although the Act establishingpet trusts articulates a eral rule that statutory provisions governing trust creation and administration alio appty to pet trusts,4 the legislature to added several unique provisions to the Act in an effort Pro- tect the intended nootto-.tt trust beneficialies,(who, othep Act wise.'lack capacity and standing)' Specifically' the the requires the tirrst io designate both trustee to manage 1 to property for the benefit of the animal and a trust protector act^on the animal's behalf.s The trtlstee is required to annu- ally submit an account to the trust protector'6 The protector

* Of the Hartford Bar. ot l-11 ** Associate Professor of Laq Quinnipiac University School .}e authorsthankFrankBprallandEriLaT}lerfortheirhelpinreviewingPrerrnunary Ctuftr of ilrir Article. I 2009 cdnn. Acts 169 (Reg-Sess')' 2 Id. 3 Id. 4 rd. s l(b). s Id. c /1. at S l(d). 74 CONNECTICUT BAR JOI,JRNAL {Vol.84 has the power to file a petition in the Superior Court, or the probate court with jurisdiction over the trust, to seek court action to enforce the terms of the trust, to remove or replace the trustee or to require the trustee to file an account.T In addition, if the trust protector suspects the trustee has engaged in self-dealing or fraud, he or she can ask the Attorney General to intervene.s In addition, addressing public policy concerns that trusts for animals should not be funded with excessive amounts or facilitate lavish lifestyles for animals, the Act provides that upon application of the trustee or the trust protector, the Superior Court or the probate court has the power to order the distribution of any p4rt of the trust it determines exceeds the amount required for its intended use.e The Act specifies the following order for the distribution of any such excess property: (1) to other beneficiaries pursuant to the terms of the trust; (2) to the remainder beneficiaries; (3) to the sefflor, if living; (4) to the residuary beneficiaries under the settlor's will; or (5) the settlor's heirs at law.10 Finally, it is worth noting that the Act does not exempt pet trusts from Connecticut's rule against perpetuities.ll The practical impact of this potential omission is that many pet trusts must terminate within 90 years of creation. While dog

t Id. at $ 1(e). The Act provides that a probate court may exercise jurisdiction over a pet trust "if the tr:usteeof the trust is otherwise subject to the jurisdiction of such pro-bate court, or the trust is an inter vivos trust and the trust is or could be subject to the jurisdiction of such probate court for an accounting pursuant to section 45a-175 ofthe general statutes." /d. at $ l(c)(2). 8 Id. at $ t(e). e Id. ln a well known case, similar public policy considerations led to a $1O million reduction in the $12 million amount originally set aside for the be.nefit of hotel magnate kona Helmsley's surviving pet dog, Trouble. See Dareh Gregorian, Screw the Pooch - Leona's Ptip Inses $10M of Trust Fund; N.Y. Posr, Jun. 16, 2OO8,at 3 (quoting Trouble's caregiver as indicating that "[t]wo million dollars . . . would be enough money to pay for Trouble's maintenance and welfare at the high- est standards of care for more than l0 years, which is more thalr twice her reason- ably anticipated life expectancy. . . ."). Trouble's annual expenses were estimated at $19O,OOO,which indludes $60,0OOfor her guardian's fee, $IOO,OOOfor around- the-clock security, and $8,0OOfor grooming. 10 P.A. 09-169 g 1(e). rr CortN. GEN. STAT.$ 45a-491 (20O9) provides in relevant part as follows: "A nonvested property interest is invalid unless: (1) When the interest is created, it is certain to vest or tenninate no later than twenty-one years after the death of an indi- vidual then alive; or (2) the interest either vests or terminates within ninety years after its creation." 2OIO] 2N9 DEVEI,OPMENTSIN CONNECTICW ESTATEAND PROBATELAW 75

and cat owners will find this issue of little consequence, owners of pet tortoises will need to carefully consider the implications for their estate planning.lz

B. Grft and Estate Tizx Changes In 2O09, the General Assembly amended General Statutes Section I2-39I to make significant changes in the Connecticut estate tax, and General Statutes Section 12-642 to make significant changes to the gift tax.ll In most cases, the changes took effect January I,2OlO.r4 Table 1 illustrates the current estate and gift tax rate tables effective as of January 1. Following the table is a more detailed discussion of the applicable legislation as contained in Public Act 09-3 (June Special Session).

Table 1: Otd and New Estate and Gift Taxesls

VALUEOF OLD'TAXRATE NEWTAXRAf,E TAXABLE Deaths on or before Deaths on or after ESTATE December 3I,2OOg Januaryl,2OlO OR GIFT (Addcols. C & D) (Addcols. E& F) Col. A: Col. B: Col. C: Col. D: Col. E: Col. F: But not Thx rate Tbx rate Over over Thx on on excess Tax on on excess Col.A OverCol.A Col. A OverCol. A $2,OO0,0O0 NO TAX NOTAX $2,0OO,0002.6100,OO0 5. 0857oof the total over0 2 , I 0O,O0O 2 ,600 ,0O0 $ 106,8OO 8 . OVo 2,600,o003,100,o00 146,800 8.8vo 3,100,o003,500,o00 190,800 9.6vo

12 See Verlyn Klinkenborg, Appreciations; Adwaitya, N.Y. TnGs, Mar. 28, 2OO6,at .4'16 (discussing the death of Adwaitya, a 25o-year-old tortoise housed at the Calcutta Zoo). 13 PA. O9-3(June Spec. Sess.), as amendedby P.A.09-8 (Sept. Spec.Sess.). 14 P.A. 09-3 $ l l 6 with respectto the estatetax, and P.A. 09-3.$ l l S with respect to gift tax. t: Table I is excerpted from the legislative summary of PA, O9-03, available at http://www.cg a.ct.govI2AO9 ISUM/20O9SUM0OOO3-R02HB-O68O2-SUM.htm. 76 CONNECTICUT BAR JOURNAL lVol.84

3,500,000 3,600,000 229,200 9. 6Vo O 7.2Vo 3,600,oo04,100,000 238,800 10. 47o $7-200 7 .8Vo 4,100,oo05,100,000 290,800 Il. 2Vo 46-200 8,4Vo 5,100,0006,100,o00 402,800 12. OVo 130.2O0 9.OVo 6,100,oo0 7,100,000 522,800 12.8Vo 22O.2OO 9. 6Vo 7,100,oo08,100,o00 650,800 13. 6Vo 316,200 lO. ZVo 8,100,oo09,100,000 786,800 14. 4Vo 4LB,?OO IO. 8Vo 9,100,oo010,100,o00 930,800 15.2Vo 526,200 LI.4Vo Over$1O,1O0,O0O 1,082,800 t6. O70 640,2OO 12. OVo

As illustrated by Table L, Public Act 09-3 made several significant changes to Connecticut's estate and gift tax regime. The first major change is an increase in the state estate and gift tax exemption from $2 million per taxpayer to $ 3.5 million per taxpayer.l6 Accordingly, the state estate and gift tax regime should no longer impact taxpayers below this level of wealth. Taxpayers at or above this wealth level will still rteed to plan for Connecticut estate and gift taxes. The Act was intended to simplify the planning for these individ- uals insofar as the new $3.5 million state estate tax exemption equaled the $3.5 million federal estate tax exemption in effect for calendar year 2OO9.r7Unfortunately, however, Congress did not take the legislative action required to keep the federal exemption at this $3.5 million level.l8 Second, for decedentsdying after December 3l,2Oo9,the

rc Id. T}lrenew rate tables are codified in Comi. GeN. Sret. 5$ 12-391(gX2) ard l2-642(a)(a). The new gift tax exemption applies cumulatively to all gifts made on or after Janu4ry 1,2Ctr'5. CorN. Geu. SIAT. $ l2-642(a)(4)- As under thb federal system, the Connecticut estate tax and gift tax regirires are coordinated such ttrat taxable lifetime gifts effectively reduce a decedent's available estate tax exemption. CoNN.GeN. Srer. $ l2-391(cX1XB). l? For a detailed discussion of the planning difficulties resulting from the prior misalignment of the federal and Conneiticut exemptions , see Jefftey A. Cooper & John R. Ivimey, 20O8 Developrnents in Connecticut Estate and Probate Law' 83 Cor.rN.B. J. 141, 149-58 (2009). rs As we write this article, there is no federal estate tax in effect for deaths occurring in 2010. Accordingly, the federal estate tax exemption could be said to be infinite unless Congress restores a federal estate tax for 2OlO decedents, either retroactively or prospectively; Under culTent law, the federal estate ftx exemption is scheduled to be $1,OOO,0OOfor 2011. 2OIO] 2AO9DEVELOPMENTS IN CONNECTICUTESTATE AND PROBATE I^AW 77

Act eliminated the much-maligned "cliff'which appeared in the prior rate tables.le Under prior law, a taxable estate of $2 million or less incurred no tax, while a taxable estate over $2 million'incurred a tax on all of its assets, including the first $2 million. This structure produced a so-called "cliff in which a $L increase in the value of a taxable estate from $2,OOO,000 to $2OO0gOl increased tax liability from $0 to $101J00. For decedents dying in 2010 and thereafter, the 20O9 legislation elirninated the cliff by providing that estate tax applies solely to the portion of an estate's taxable value which exceeds the $3.5 million taxable threshold, rather than to the entire taxable estate. Third, the Act reduced marginal tax rates on estates by 25Vo from previous levels.2o Finally, for deaths on or after July L,2OO9,theAct reduces the time an executor has to file an estate tax return from nine months after the date of death to six months after the date of death.2r This change provides a one-year budgetary benefit for the state by accelerating an additional three months of estate tax revenue into the current fiscal year. However, we coriLsider this legislative change a short-sighted one. The change unduly accelerates settlement of Connecticut estates by requiring all estates to appraise and value assets three months sooner than required under prior Connecticut law (and federal law). In addition, this change is particularly problematic for those estates considering making an election to valuate estate assets as of the "alternate valuation" date of six months after date of death.z2 Since the state estate tax return is now due on the alternate valuation date, it is impos- sible for estates to report those alternate values accurately on a timely return. The result will be a significant increase in the number of extension requests, estimated tax p-ayments,

re P.A. 09-3 S I 16, I 18. For a discussion of the "clifF' and is implications, see Cooper & Ivimey, supranote 17, at 153-55. 20 P.A.09-3 S 116,118. 2r P.A.09-3 S 117. 22 IR.C. E 2032. CONNECTICLTTBAR JOURNAL [Vol.84 and amended returns.23 The state's one year revenue boon thus comes at the expense of creating a pefinanent adminis- trative burden for decedents'estates and those who represent them. We do not consider this a wise trade-off.

C. Probate Court Refonns and Redistricting "in 2O09,the General Assembly enactedPublic ActOg-IL4, which made significant changesto the probate court system.24 This brief summary focuses on those provisions likely to be of greatest immediate relevance to most practicing attorneys. First, the Act established a probate redistricting commission to develop a plan to consolidate probate court districts by September 15, 2OO9.2sThe Commission timely complet- ed its study and the legislature approved a plan for 54 probate districts.26 Further information on this redistricting plan, including a map showing the new probate distr{cts, can be found on the Probate Court Redistricting Commission section of the State of Connecticut Judicial Branch webpage.zT Second, effective Jauuary 5,2011, the Act changes the compensation of probate court judges, replacing the current regime based on the fees collected by the courts with a new system based on population and workload. The Act classifies each probate district into one of four compensation "bands" based on the district's population and its annual weighted workload.2s The Act specifies a probate judge's salary for courts in each band, ranging from 45c/oto 75Voof a Superior Court judge's salary.2sSince the judge's salary will be based

23 The increase in extension requests and estimated Payments likely will impose a financial burden on the state insofar as the state pays interest on such over- payments at an generous 87o annual rate. Cor.iN.GsN. SIAT. $ l2-392(aX3). 24 P.A.O9-ll4 (Reg. Sess.). x Id.atSE2l-22. 26 PA. O9-l (Sept. Spec. Sess.). n http:l lwwwjud.state.ct.us/probate/Redistrict/default.htm. 28 PA. 09-114g 12. zs Id. at $ 13. However, as a transitional rule, any incumbent judge in office on January 4,20ll, is guaranteed that her annual salary for the period from Januaty 5, 2oll to January 6,2015 will be at least SOVoof her average salary from 2008 tlrough 2OlO. 2OIO] 2OO9DEVELOPMENTS IN CONNECTICW ESIATEAND PROBATEIAW

on the applicable "band" rather than court revenue, probate courts also now will remit all fees, costs, and other income to the State Treasurer to be credited to the Probate Coun Administration Fund, and probate court salaries and expenses will be paid from this fund.3o Third, the Act adds a new requirement that each probate judge elected for a term beginning on or after January 5,20ll must be a member of the Connecticut bar.31 As a transitional rule, however, any judge who was in office on January 4, 2OII rnay continue to serve in office as long as he remains a judge without a break in service.32 Fourth, the Act requires probate courts to be open at least 40 hours a week instead of the present 20.33 In a related provision, the Act requires the Probate Court Administrator to establish a budget committee, consisting of the Probate Court Administrator and two probate judges appointed by the Probate Assembly, to establish a compensation plan for probate court employees, staffing levels for each probate court, and the miscellaneous office budget for each court.34 Finally, the Act authorizes creation of the new positions of Probate Magistrate and Attorney Probate Referee, and authorizes a probate court to refer certain matters to a Magistrate or Referee with the consent of the parties or their attorneys.3s The Act also authorizes the Superior Court to refer many t5rpes of probate appeals to a special assignment probate judge unless any party files demand for a hearing in the Superior Court within 20 days after service of an appeal.36

:o Id. at S 1O. 3r Id. at $ 15, adding section (e) to CoNN. GsN. SIAT. g 45a-18. 32 Id. 33 Id. at S 16, amending subsection (a) of CoNN. GeN. SIAT. I 45a-79c. zq Id. at 5 ll. 35 Id. at $ 18, amending Cor.rN. GEN. Srar. g 45a-123(a). The Acr details the procedures to be followed by the probate magistrate or attorney referee, and the pro, cedure for objecting to his findings or conclusions. The Act also specifies that *le court cannot refer the following matters: (1) involuntary patient matters or involuntary cornmitment matters under chapter 3l9i: (2) temporary custody matters under part II of chapter 802h, or (3) an involuntary representations under part IV of chapter 8O2h. Id. 36 Id.at g l4(h). CONNECTICUT BAR JOURNAL lVol.84

II. CaseLaw During 2OO9,Connecticut's courts issued numerous decisions affecting probate practice. In this part, we summarize a number of these decisions, focusing on those most likely to have widespread relevance. A. Probate Appeals -1. Timeliness of Appeal In Manthorne v. BornerfT the Superior Court granted a motion to dismiss a probate appeal as untimely. The case reveals a significant ambiguity in Connecticut's statutes governing probate appeals. Unless and until the General Assembly rewrites the applicable statutory provisions, practi- tioners should be aware of this potential source of controversy. At issue was the plaintiff's appeatrof a probate court's denial of his petition for an elective share of his deceased wife's estate. The probate court orally denied the plaintiff's petition in open court on ltne 26,2008. The plaintiff's attorney subsequently received a written decree from the court via fax on November 1, 2008, and by mail on November ?n,2@8. Plainffifiled an appealon November z0,z00B,within 3Odays after receipt of the court's written decree, but more than five months after the Probate Judge orally issued that decree. The plaintiff contended that the appeal was timely under General Statutes Section 45a-186, which provides that most categories of probate appeals are timely if taken "not later than thirty days after mailing of an order, denial or decree."38 However, the defendant contended that General Statutes Section 45a-1.87governed.3e That statute contains no refer-

37 2009WL3416234 (Conn. Super. Sep.22,2OO9). :8 CotN. GsN. SrAT. S 45a-186(a) (2OO9)provides in relevant part as follows: "Any person aggrieved by any order, denial or decree of a court ofprobate in any matter, unless otherwise specially provided by law, may, . . . not later than thirty days after meiling of an order, denial or decree for any other matter in a court ofprobate, appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court . . . ." ' 3e ConN. Gnx. Star. $ 45a-187(a) (2OO9)provides in relevantpart as follows: '(a) An appeal under section 45a-186 by persons of the age of majority who are pr€sent or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section." 2OIO] 2M9 DEVELOPMENTSIN CONNECTICWESTATE AND PROBATEIAW 8I

ence to the "mailing of an order, denial or decree,' but simply imposes a thirty-day deadline for filing an appeal. The dis- connect between these two statutes arose in 2OO7 when the General Assembly completely revamped the state's probate procedures. Prior to that time, Section 45a-186 governed the procedures for making a probate appeal while Section 45a-l97 governed the deadlines for such appeals. In 2007, the legislature completely revised Section 45-186 to include both new procedures and new deadlines. Howevern the legislature neither repealed nor modified Section 45-187 ,which continues to include the previous (presumabtry superseded) deadlines. Although it is far from clear on the question, the Superior Court's opinion suggests that the court did not fully appreci- ate the origins of this statutory conflict. Instead, the Superior Court sided with the defendanf, cited to General Statutes Section 45a-187, and held that the thirty-day period for commencing an appeal began to run on June 26,the date the probate court issued its decree orally in open court. The Superior Cgurt observed that both parties and their counsel were present when the court announced the ruling from which the appeal was subsequently taken, and thus "no firr- ther notice of that ruling was required" before commencing an appeal.'to Accordingly, the court dismissed,the plaintiff's appeal as untimely. We suggest that it would have been.a better reading of the statutory regime to conclude that the newer, more compre- hensive, Section 45a-186 superseded the older provisions found in Section 45a-I87. If the GeneralAssembly agrees, it should amend General Statutes Section 45a-187 accordingly. 2. Procedure In Gates v. Gatesjt the Appellate Court affirmed the Superior Court's dismissal of a probate appeal on procedural grounds. As discussed in last year's update,42 the Gates case

q Manthorne, supra note 37, at *3. ar Gates v. Gates, 115 Conn. App.293 (2OO9). - _ S"g Cooper & Ivimey, supra note t7, at l4Z-43 (20O9) (discussing the Superior Court's treatment of the matter). 82 CONNECTICLITBAR JOI]RNAL [Vol.84 provided Connecticut's courts with an opportunity to explore the impact of Public ActOT-I16, which completely revamped the procedures applicable to probate appeals under General StatutesSection 45a-186effective October l,2OO7. The Superior Court in Gates trad analyzed the provisions of General Statutes Section 45a-1.86 and concluded that effective October l, 2OO7,they "clearly and unambiguously" provide that an appeal is commenced by filing that appeal with the clerk of the Superior Court.a: This procedure approach differs from that under prior law (whereby a party commenced a probate appeal by filing a request with the Probate Court) as well as that applicable to general civil actions (which are initiated by service of process). On appeal, the Appellate Court affirmed the Superior Court's holding and analysis of General Statutes Section 45a-186, indicating that it would serve "no useful purpose" to add any verbiage to the trial court's "well reasoned" opinion.aa One month later, the Appellate Court provided a further exposition on the subject of probate appellate procedure- In Corneroli v. D'Amicojs the Appellate Court affirmed anoth- er case discussed in last year's update,+6 and made abun- dantly clear that thre 2OO7amendments to General Statutes Section 45a-186 fully superseded all prior procedures for commencing a probate appeal. The plaintiff in this case had filed a probate appeal in accordance with the procedures in effect prior to October l,2OO7, and urged the court to con- strue General Statutes Section 45a-186 flexibly to validate an appeal commenced in compli4nce with now-outdated procedures. Flowever, the court refused to do so. Instead, the court held that the new statute unambiguously adopts a sin- gle means for commencing a probate appeal and opined that the plaintiff's arguments to the contrary "merit little discus-

43 2ffi8 WL 4050369 at *3 (Conn. Super.Aug. 8, 2008). 44 Gates, supra iote 4L, at 294. as Corneioli v. D'Amico, 116 Conn. App. 59 (2009). q6 See Cooper & Ivimey, supra notg 17, at 142 (discussing the Superior Court's treatment of the matter). 2O1O] 2OO9DWEIAPMENTS IN CONNrcTICW ESTATEAND PROBATEI^AW 83 sion."47 The impact of the court's holding is clear. Attorneys who have not yet familiarized themselves with the state's new probate appellate procedures must do so. 3. Notice In Gregorie v. Thompson Probate Courtts the Superior Court denied a motion to dismiss the plaintiff's timely probate appeal for her failure to prriperly serve all interested parties. The court concluded that under General Statutes Section 45a-186, failure to properly serve a party is a nonjurisdic- tional def,ect,which must be cured before a matter proceeds but which neither deprives the court of jurisdiction nor ren- ders an appeal untimely.+e

B. Wills and Trusts 1. Testamentary Capacity In Kane v. Appeal From Probate,So the Superior Court wrestled with a difficult fact pattern to determine if a testatrix had sufficient mental capacity to execute a valid will. The plaintiffs were several of the testatrix's grandchildren whose father had predeceasedthe testatrix by two years. At age 93, the testatrix executed a new will dividing her estate among her living children and specifically disinheriting the plaintiff grandchildren.sI After a review of the law governing testamentaq/ capacity and detailed findings of fact, the Superior Court conclud= ed that the proponents of the will had not adequately met their burden of proving the testatrix's testamentary capacity. The court seemed particularly concerned that the testatrix, who had been diagnosed with dementia, could not recall the name of her regular physician and did not notice the mis- spelling of her sons' names in her attorney-prepared will.sz

47 Corneroli, supra lote 45, at 66. 48 2009 WL 765939,47 Conn. L. Rptr. 329 (Conn. Super. Mar. 3,2OO9). 49 Id. at *4. 50 2009 WL 943761 (Conn. Super. Mar. 9, 20O9). 51 Id. at *1. 52 Id. at*4. CONNECTICUT BAR JOURNAL [Vol.84

The opinion includes a detailed discussion of the testatrix's medical records, which reveal a worsening pattern of memo- ry loss and diagnosesof dementia and Alzheimer's disease.s3 While the courts typically impose an extremely low threshold on questions of testamentary capacity, Kane demonstrates that even the most lenient standard has its limits. ' 2- Undue Influence In Kane v. Appeal From Pro,bate, discussed immediately above, the Superior Couft also found that the will at issue had been procured by undue influence. The court's treatment of this issue is noteworthy insofar as the court reversed the traditional burden of proof by presuming thp existence of undue influence and placing the burden on the proponents to dis- prove the existence of such influence. While citing prior case law which authorized both the shifting burden of proof and a finding of undue influence based solely on circumstantial evidence,s4the Superior Court's approach in this case took that prior case law to a new extreme. Specifically, the Superior Court did not even name the alleged undue influ- encer, arguing simply that the decedent's last will was so incongruous with her prior expresseddesires that "someone". must have been exerting undue influence.s5 3. Mistake In Kopf v. Estate of Kopf,sa the Superior Court considered the appropriate remedy where a will contains a scrivener's error. Unfortunately, the court provided a questionable reso- lution of this crucial question. The plaintiff was one of the decedent's children and the draftsman of her will. That will left the decedent's residuary estate to the decedent's surviving "issue," a term which encompassedboth the decedent's surviving children and the descendants of her predeceased children. The plaintiff con-

53 Id. at *3. 54 Id. at *5. J) Id. 56 2OO9WL 1L43138,47 Conn. L. Rptr.517 (Conn. Super.Apr. E,20O9). 2OIO] 2OO9DEVEI.OPMENTS IN CONNECTICUTESTATE AND PROBATEIAW 85

tended that the decedent had intended to benefit solely her surviving children, not the descendants of her predeceased children, and thus he committed a scrivener's elror by using the term "issue" rather than "children" in the decedent's will.57 Quoting extensively from the Connecticut Supreme Court's groundbreaking holding in Erickson v. Erickson,Ss the Superior Court held that the decedent's intent was thwarted by the scrivener's error and thus her will should be set aside.5e The court's holding raises several key questions. First, it is unclear why the court wholly invalidated the will rather than correcting the scrivener's error under the approach set out in Erickson. Second, the Court seemingly ignored the potential relevance of the Supreme Court's recent holding in Ruotolo v. Tietjen,ffi wherein the Supreme Court held that words of survivorship are insufficient to negate Connecticut's anti-lapse statute.6l Applying the logic of Ruotolo to the case at bar significantly complicates the analysis insofar as a will which provided for the residue to pass to the decedent's surviving children would not negate operation of Connecticut's anti-lapse statute and thus would not effectively achieve the decedent's purported goal of disinheriting the descendants of any predeceased children. Finally, the court made no mention of the ethical concerns and inference of undue influence which arguably should have arisen when one of the decedent's children drafted a will disinheriting other heirs at law. 4. Nonprobate Property In Garrigus v. Varengo62 theConnecticut Appellate Court provided a detailed exposition of Connecticut's law govern-

57 Jd. at *1. 58 Etickson v. Erickson, 246 Conn.359 (1998) (allowing admission of extrin- sic evidence to demonstrate that a will contained a scrivener's error). sg Kopf, supra note 56, at *2. 60 Ruotolo v. Tietjen,28l Conn. 483 (20o7). 61 Coux. GeN. STAT.g 45a-441\?frO9) ('When a devisee or legatee, being a child, stepchild, grandchild, brother or'sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised.or bequeathed."). 62 Garrigus v. Viarengo, 112 Conn. App.655 (2009). 1 :CoNNECTICIIf BAR JOURNAL [Vol.84

ing survivorship bank accounts and the equitable remedies available where such accounts are established as a result of fraud or mistake. In this case, a decedent executed a will leaving her probate estate to ten specified re1atives.63, However, more than half of her total assets were titled in the name of the decedent and the defendant as joint tenants with rights of survivorship.6a Although the defendant was present both when the decedent met with her estate planning attorney to discuss her estate planning and when she executed her will, the defendant did not alert the attorney to the existence of the joint accounts.65 The Superior Court found that the decedent established the joint accounts solely as matter of convenience rather than as a testamentary device, and that the defendant engaged in fraud by procuring (and then failing to adequately. disclose) those accounts.66 The Superior Court thus imposed a constructive trust in favor of the estate and the Appellate Court atrirmed. The Appellate Court's extrernely well-crafted opinion stands for the proposition that although accounts titled as joint tenants with rights of survivorship typically automati- cally pass to the survivor at death, the survivorship nature of these accounts can be refuted by clear.and convincing evidence that survivorship was not intended or that the accounts were procured by fraud or undue influence. 5. Accountings ln Halt v. Taylor,67 the Superior Court considered the legal effect of a provision in a trust document excusing the trustee from filing periodic judicial accountings, verbiage common- ly found in modern trust documents. The probate court had ordered the plaintiff trustee to file a judicial accounting for her tenure as trustee.68 Citing the trust provision excusing

63 Id. at 658. & Id- at 659. 65 Id. at 658. 6 Id. at 66O. 6T 2009WL3645175,4E Conn. L. Rptr.582 (Conn. Super. Oct. l,2OO9). 68 Id. at *l . 20101 2M9 DWETOPMENTSrN CONNECuCW ESTATEAND zROBATEr-AW 81

periodic judicial accountings, the trustee failed to comply and moved for summary judgment on the issue.6e In denying the plaintiff's motion for summary judgment, the court narrowly consffuedthe trust clause at issue, holding that a clause excusingperidic accountings did not operate to excuse all judicial accountings.ToThen, the court went one step further, making clear that no clause in a trust document could waive all judicial accountings and thereby effectively deprive the court of its statutoryjurisdiction.zt The case thus provides a reminder to draftsmen that a clause seeking to waive judicial accountingsmay be given only limited effect. C. Lawyers and Judges 1. Judicial lmmunity ln Leseberg v. O'GradyJz ttre Appellate Court affirmed the Superior Court's dismissal of the plaintiff's cause of action against the Probate Judge who had appointed a conservator to manage the plaintiff's affairs. The plaintiff had alleged a multitude of claims against the judge, ranging from due process violations to intentional torts. In affrrming the Superior Court's granting of the Probate Judge's motion to dismiss all claims against him, the court quoted extensively from the 1804 case of Phelpsv. Silt.tt As that court reasoned over two centuries ago, "[nJo man would accept the office of judge, if his estate were to answer for every error in judgment, or. if his time and Fo,perty were to be wasted in litiga- tions with every man, whom his decisions might offend."14 Although acknowledgrng that a judge may face personal liability for nonjudicial actions or actions taken in the com- plete absence of jurisdiction, the court made clear that mere judicial error will not deprive a judge of immunity.Ts 4r u

69 Id. '70 *2. -71 Id. at Id. Leseberg v. O'Grady, 115 Cm. App. 18 (2OO9). I Day (Conn.) 315 (1804). 74 Id. at329. 75 Les eb erg, sipra note 72, aet2. quoting Mireles v. Waco, 5O2 U.S. g, ll - 12 (1991). r ,g'

88 CONNECTICUT BAR JOIJRNAL lVol.84 #* .' result, even though the plaintiff alleged several significant s. procedural violations in the handling of her conservatorship mattero including the fact that the defendant's court lacked ,s personal jurisdiction over the plaintiff,76 the court found $ {: "[n]o basis in the law on which to conclude that the defendant was acting outside the scope of his judicial functions" and thus found him immune from suit.77 $1 2. Quasi-Judicial ImmunitY .itrj While the case discussed immediately above served to reaffirm the traditional rule that judges enjoy broad liability protection -under the doctrine of judicial immunity, it is less clear whether similar protection extends to those who serve in other capacities in our judicial system. In King v. ReilJa a case discussed in last year's updateTe the United States District Court extended such immunity far and wide, holding that a conserved plaintiff's court-appointed attorney and his conservator both enjoyed absolute "quasi-judicial immunity" for their actions, since they had been appointed by, and served at the behest of, the Probate Judge.8o In analyzing that case last year, we questioned some aspectsof the court's rea- soning arr{ concluded that "[i]t seemsincumbent upon future courts to revisit the question of whether conservators and attorneys truly enjoy such blanket immunity with respect to their handling of conservatorship matters."sl The Second Circuit seems to agree with our assessmentand the case has been certified to the Connectibut Supreme Court to resolve this question of state 1aw.82 D. Conservatorships 1. Procedures In 2OO7, the General Assembly completely revamped the

76 The plaintiff alleged that she was not a resident of the probate judge's probate district. Leseberg, supra rloto 72, at 22. 77 Id. ze KinB v. Rell,2008 WL 793207 @. Conn.20O8). zs cooper & Ivimey, supra note L7, at 147-49 (discussing the District court's treatment of the matter). ..:'i w King,supranrote 78, at *3-*4. it,:a 81 Cooper & Ivimey, suPra rl.ote17 ;at 149. 82 Grois v. Rell, SA5 f3a 72 (2dC;ft.2OO9). 20101 2aD DEVELOPMENTSIN CONNECTICWESTATE AND PROBATEt AW

statutes governing appointment of conservators.s3 In Doe v. Probate Appeal Hartford,sa the Superior Court explored the impact of these changes, ultimately setting aside the appointment of a conservator after finding that the probate court failed to adequately comply with these new procedural requirements- Reviewing the record from the probate court hearing, the Superior Court found a number of procedural flaws, including that the actual record was insufficient (e.g., tape recordings cut off key portions of testimony); the hearing was conducted with insufficient regard for rules of evidence (the judge admitted extensive hearsay testimony and evidence without sufficient foundation); and the attorney for the respondent evidenced "no indication of advocacy" other than to express his client's objection to the petition-8s For attorneys familiar with the relatively informal nature of conservatorship proceedings under prior law, this case provides a lesson in just how much the 2OO7 legislative changes impacted probate procedures. 2- Habeas Corpus Decisions fn Sullivan v. Ganim,a6 the Superior Court further reflect- ed on the 2OO7changes to conservatorship procedures when considering a petition for a writ of habeas corpus seeking to invalidate a decision made by petitioner's conservator and thereby return her from a nursing home to her prior resi- dence.87 The attorney who represented the petitioner in her conservatorship proceedings had moved to dismiss the habeas petition, claiming standing in his capacity as the petitioner's court-appointed attorney and contending that the petitioner directed him not to appeal the appointment of her conservator.88 The Superior Court denied the attorney's motion to dis-

83 For an analysis of the 2OO7 amendments to Connerticut's conservatorship statues, see John R. Ivimey and Jeffrey A. Cooper, 2OO7 Developments in Connecticut Estate and Probate Inw,82 CoNN- B. J. l19, 12f -31 (2OO8). u 2OO9 WL 1623067 (Conn. Super. May 13,20O9). 8s Id. at *2- 86 2OO9 WL 530378 I , 48 Conn. L. Rptr. 872 (Conn. Super. Dec. 2, 2OO9). s7 The petition was filed pursuant to the provisions of CoNN. GeN. Srer. $ 45a- 7o5a (2007). 88 Sullivan, supra note 86, at * l. CONNECTICIN BAR JOURNAL [Vol.84

miss, holding that General Statues Section 45a-7o5a neither requires the petitioner to exhaust other available remedies before petitioning for writ of habeas corpus nor does it give the attorney who represented the petitioner in the conservatorship matter standing to oppose the habeas petition.8e

sg Id. at 3.