Henry W. Pascarella v. Beyhan Ahayhan Perry (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Henry Pascarella has appealed from an order of the Greenwich Probate Court dismissing his application to probate a will of Farwell Perry.   The will in question was executed by Perry in April 2005 (2005 will).   On May 18, 2009 Perry died in Florida.   In the meantime, according to Pascarella, Perry executed another will in October 2007 (a codicil was added in April 2008) (2007 will) and an even later will in October 2008 (2008 will).

The day after Perry died Pascarella, named executor in the 2005 will, filed that will in the Greenwich Probate Court which named him Temporary Administrator.   The 2008 will was filed in the Rutland, Vermont Probate Court in June 2009.   The 2008 will specifically stated it revoked all former wills.   It made bequests of one dollar to each of three sons and a stepson, and divided the rest of Perry's estate and other property Perry had the authority to dispose of between his wife and his daughters.

In June 2009, Perry's wife (Mrs. Perry) as executrix of the 2008 will, moved in the Greenwich Connecticut Probate Court to dismiss or stay the probate of the 2005 will.   In September 2009 the Vermont Probate Court admitted the 2008 will which described Perry as a resident of East Wallingford, Vermont.   The Vermont Probate Court found that all heirs at law, and the surviving spouse consented to the allowance of the 2008 will, and approved and allowed it as Perry's last will and testament.   Pascarella appealed to the Vermont Superior Court alleging that Mr. Perry did not have legal testamentary capacity when he executed the 2008 will, that Mrs. Perry exercised undue influence in connection with the execution of the will and that he (Pascarella) had not been sent notice of the Vermont Probate Court hearing.   The appeal was dismissed for lack of standing in February 2010.

The Greenwich Probate Court, in March 2010, sustained Mrs. Perry's application and dismissed the probate proceeding involving the 2005 will and revoked the letters of temporary administration granted to Pascarella.   The Greenwich Probate Court held that Vermont was the proper jurisdiction for the probate of Perry's estate.

Mrs. Perry has moved to dismiss this appeal from probate on the ground that this court lacks jurisdiction.   She contends that the 2005 will was revoked, that the Vermont courts have conclusively determined that the 2008 will was valid, and for those reasons, and just as the Greenwich Probate Court held, this court has no jurisdiction.   Mrs. Perry also contends that this court should grant full faith and credit to the Vermont decision holding the 2008 will valid.

The court declines to act in this fashion.  General Statutes § 45a-186(a) allows any person aggrieved by a probate order or decree to appeal to the Superior Court and “in such an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered.”  Prince v. Sheffield, 158 Conn. 286, 294 (1969).   The Superior Court is under no constraint, such as the substantial evidence rule in administrative appeals, to uphold the probate court decision.   The Superior Court decides the appeal “as an original proposition unfettered by, and ignoring, the result reached in the probate court.”  Id. 298.

The Probate Court decree contained two parts.   First, it set out to determine whether it had jurisdiction to probate the 2005 will and went about this task by determining whether Vermont had jurisdiction over the 2008 will.   The Greenwich Probate Court rejected Pascarella's contention that the 2008 will was void because of Perry's incapacity and because it was executed under duress, noting that even if that contention was proven, the 2007 will would replace the 2008 will.   The Probate Court found that Pascarella had not sustained his contention that the 2005 will was Perry's last will and testament, and therefore, found that Vermont had jurisdiction over the probate of the 2008 will.¹

The second part of the Greenwich Probate Court decision, based on Murdoch v. Murdoch, 81 Conn. 681 (1909), granted full faith and credit to the Vermont order admitting the 2008 wil1 to probate and dismissing Pascarella's application.

Based on the foregoing, and the de novo nature of an appeal from probate, the court declines to dismiss this appeal solely on the papers supporting Mrs. Perry's motion to dismiss.   The Greenwich Probate Court decision is not entitled to any deference and was not based solely on the question of jurisdiction.   The court concludes that Pascarella is entitled to attempt to prove anew the Greenwich Probate Court's jurisdiction via the 2005 will, and General Statutes § 45a-287, and he is entitled to do so at a hearing through testimony and documentary evidence.²  Conversely, Mrs. Perry is entitled to present evidence in favor of her application in the same fashion.

In addition, that part of the Greenwich Probate Court's decision relying on the United States Constitutional mandate (Article IV, Section 1) of granting full faith and credit to judgments and decrees of a sister state belies Mrs. Perry's argument that the Greenwich Probate had no jurisdiction.   In relying on the full faith and credit clause, the Probate Court was exercising its jurisdiction, and similarly, there is no basis for this court to conclude it lacks jurisdiction over that aspect of the case.   Therefore, that issue will have to be tried as part of Pascarella's de novo appeal.

Conclusion

The court does not decide the motion to dismiss with respect to the appeal from underlying probate court decision regarding lack of jurisdiction, as the appellant Pascarella is entitled to a hearing.   The portion of the appeal respecting granting full faith and credit to the Vermont judgment is not dismissible on jurisdictional grounds, and that portion of the motion to dismiss is denied.   The appeal and the remaining portion of the motion to dismiss will be heard together after counsel confers with the civil caseflow office as to an appropriate date.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. Pascarella contends that the Greenwich Probate Court's decision never stated it had no jurisdiction.   While technically correct, the only fair reading of the decision is that Vermont had jurisdiction over the 2008 will, and that Connecticut did not have jurisdiction over the 2005 will, and the latter will was the only basis for Connecticut to claim any jurisdiction in this matter..  FN1. Pascarella contends that the Greenwich Probate Court's decision never stated it had no jurisdiction.   While technically correct, the only fair reading of the decision is that Vermont had jurisdiction over the 2008 will, and that Connecticut did not have jurisdiction over the 2005 will, and the latter will was the only basis for Connecticut to claim any jurisdiction in this matter.

FN2. Neither party offered testimony at the oral argument of Mrs. Perry's motion to dismiss.   The hearing contemplated in this decision, in part, may be considered an adjunct to resolving the motion to dismiss, part of the trial de novo, or both..  FN2. Neither party offered testimony at the oral argument of Mrs. Perry's motion to dismiss.   The hearing contemplated in this decision, in part, may be considered an adjunct to resolving the motion to dismiss, part of the trial de novo, or both.

Adams, Taggart D., J.