Carolyn Hawkins v. Bernadetti Shoneck et al. (2010)

MEMORANDUM OF DECISION

In this action the plaintiffs Carolyn Hawkins and Audrey Blay, as executrices of the estate of Glenn Bedor (the decedent) filed a twelve-count complaint against Bernadette Shoneck and Ronald Shoneck.   The court, in finding in favor of the plaintiffs, need only discuss and base its decision on the allegations based upon actual fraud.

During his marriage, the decedent depended upon his wife to handle all aspects of the family's finances.   At some point after his wife passed away in 1994, the decedent sought the help of his daughter Bernadette Shoneck during which time she assisted him with his finances.   From that point until July 2004, Bernadette Shoneck was in complete control of the decedent's finances, had check writing responsibilities and unlimited access to the decedent's home and finances.

In June 2002, the decedent was sued and his property was attached for a debt owed by his youngest daughter.   This problem was resolved in favor of the decedent.   Thereafter, the defendants persuaded the decedent to create an “estate plan” to protect his assets from creditors and to prevent him from being placed in a nursing home, which the decedent feared.   At sometime in March 2003, the decedent met with an attorney for the purpose of drafting an estate plan.   In April 2003, the decedent signed a last will and testament (the will) and a power of attorney.   In the will, the decedent bequeathed his estate to four of his five daughters, including Bernadette Shoneck.   The power of attorney form established Bernadette Shoneck as attorney-in-fact over the decedent's personal and financial affairs.   Sometime before September 2003, the defendants led the decedent to believe that additional forms needed to be completed.   Thereafter, the decedent signed a warranty deed, transferring ownership of the property to the defendants while reserving to himself a life estate in the property and received a mortgage on the property securing a promissory note in the amount of $250,000 as consideration for the transfer of the property.   He also executed a codicil to his will in which he bequeathed the promissory note to Bernadette Shoneck.   The attorney represented both the decedent and the defendants in this transaction.   The attorney provided the decedent and the defendants with a “ramification letter,” in which he explained the tax consequences of transferring the property to the defendants and the procedure for forgiving the debt owed by the defendants.   At Bernadette Shoneck's encouragement, the decedent made a handwritten codicil to his will giving the promissory note, in the amount of $250,000 to Bernadette Shoneck.   This was not witnessed and the attorney was not present.

The decedent was unaware that he had effectively transferred ownership of his property to the defendants and the defendants led him to believe he was the true owner of the property.   The defendant Bernadette Shoneck also procured the decedent's signature transferring to her an annuity he had which was in excess of $15,000.

Sometime in October 2006, the decedent became aware of the transfer and attempted to regain ownership of the property.   The defendants assured the decedent and his other daughters that they would return ownership of the property and the decedent's counsel sent the defendants the documents necessary to transfer the property from the defendants back to the decedent.   The defendants declined to execute the documents and ownership of the property was never transferred back to the decedent.   In November 2006, the decedent executed a second will, in which he bequeathed his estate to four of his five daughters, specifically excluding Bernadette Shoneck from inheriting under this will.   In addition, the decedent executed a “power of attorney revocation,” in which he revoked the power of attorney he granted to Bernadette Shoneck in 2003.   The decedent passed away on August 8, 2007.

The plaintiffs argue that the defendants obtained the property and annuity through fraudulent means;  specifically, by inducing the decedent to execute various “estate planning” documents, which led to the transfer of the property to the defendants.   The court finds that the defendants represented to the decedent that his signature on the deed was necessary to complete his estate plan which would protect him from creditors and being placed in a nursing home, and that the decedent relied on these representations.   The plaintiffs assert that these assets transfer of the property to the defendants was contradictory to the decedent's wish which was to divide his assets evenly among four of his daughters.   The plaintiffs also argue that the defendants led the decedent to believe they would return the property to him, though they had no intention of doing so and ultimately refused to execute the transfer documents to reconvey ownership of the assets to the decedent.   The defendants argue that they made no false representations of fact.   They assert that it was the decedent's intention to gift the property to the defendants and as a result, the decedent did not suffer a detriment because of the transfer.

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways.   They present, however, issues of fact ․ The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it.”  Giulietti v. Giulietti, 65 Conn.App. 813, 837, cert. denied, 258 Conn. 946 (2001).  “Fraud consists [of] deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed ․ Id. The elements of both fraud action are:  (1) a false representation was made as a statement of fact;  (2) the statement was untrue and known to be so by its maker;  (3) the statement was made with the intent of inducing reliance thereon;  and (4) the other party relied on the statement to his detriment ․ Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivoval.”   (Citation omitted;  internal quotation marks omitted.)  Id., 836;  Solano v. Calegari, 108 Conn.App. 731, 741, cert. denied, 289 Conn. 943 (2008).   “[A] promise to do an act in the future when coupled with a present intent not to fulfill it, is a false representation.”  Mitchell v. Mitchell, 31 Conn.App. 331, 336 (1993).

“Clear and convincing proof is a demanding standard denot[ing] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ․ [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Internal quotation marks omitted.)  Chernick v. Johnston, 100 Conn.App. 276, 280, cert. denied, 282 Conn. 919 (2007).

The court finds that the plaintiffs have met their burden of proving that the defendants committed fraud and fraudulent misrepresentation.   The evidence clearly supports the plaintiffs' assertion that the defendants falsely represented to the decedent that the estate planning documents, including those relevant to the transfer of ownership of the property, were necessary to protect him from creditors and prevent him from moving to a nursing home.   In addition, the evidence supports that the defendants made such statements with the intent to induce the decedent to transfer the property.   Moreover, the court is unpersuaded by the defendants' argument that the decedent did not suffer a detriment as a result of his reliance on the defendants' false statements.   The transfer of the property to the defendants, the codicil to the will and the subsequent forgiveness of the promissory note were contradictory to the decedent's testamentary intent, as evidenced by conversations with his close friends and his will, which specifies that his estate, “real and personal,” should be divided equally by four of his daughters.   Consequently, this court finds that the decedent transferred ownership of the property to the defendants as a result of fraud and fraudulent misrepresentations made by the defendants.

The court sets aside the transfer of ownership of the property from the decedent to the defendants and declares the warranty deed to be null and void, leaving the property as part of the decedent's estate.

The court further orders the defendant Bernadette Shoneck to account for the proceeds of the annuity which was owned by the decedent, said accounting to be filed in this court within two weeks of the filing of this decision and a copy supplied to the plaintiffs.

The court further orders the defendants to pay to the plaintiffs the reasonable attorneys fees incurred by the estate of the decedent in order to prosecute this action.   If the parties fail to agree as to the amount, upon application, this court will hear the parties.

Furthermore, the plaintiffs are awarded taxable court costs.

Berdon, J.T.R.

Berdon, Robert I., J.T.R.