Debra Gabriele, Conservator of the Estate of Vivian Williams v. Vivian Williams et al. (2011)

MEMORANDUM OF DECISION

I. BACKGROUND

This family dispute comes to this court by the Complaint of Debra Gabriele, Conservator of the estate of Vivian Williams (hereafter plaintiff) entitled “Complaint to Quiet Title to Real Estate” which, after various allegations, requests the court to determine the rights of the parties with respect to about 170 acres of real property in North Stonington and “settling the title thereto.”   The defendants are Vivian Williams, her daughter Debra Gabriele, individually, and two of Debra's children, Philip Gabriele and Robert Gabriele.   All of the defendants filed answers to the complaint.   Vivian Williams' answer also contains what are called “affirmative defenses” to various paragraphs of the complaint.   The answer of Vivian Williams contains a prayer for relief requesting that the court “declare the Vivian Williams Trust terminated” and declares Vivian Williams sole title holder of the real estate in question.

On the date set for trial, the parties, who were all represented by counsel, stipulated that, in lieu of a trial, all parties would agree on the introduction of certain specified exhibits and request the court to “make its decision based on the written material and memoranda submitted.”   A written stipulation was filed by all parties and all parties have filed briefs.

II. FACTS

It appears to the court that the briefs of the parties may set forth as facts certain matters which are not found in the exhibits.   The court will not consider such extraneous matters as may be set forth, if any, but will base its decision on the evidence, either direct or circumstantial, which can be gleaned from exhibits which are included in the stipulation.   From those 27 exhibits, the following facts can be found to be relevant to the court's decision.

On December 29, 1992, at the age of 68, Vivian Williams established the Williams Trust (hereafter the Trust), a nominee trust to assist with estate planning for certain real property that she owned.   It was recorded in the North Stonington Land Records in Volume 93, Page 924 and is Exhibit 1. Vivian Williams was named as trustee of that trust.

On the same date, Mrs. Williams conveyed her entire interest in approximately 170 acres of undeveloped land on Northwest Corner Road in North Stonington to the Trust.  (Hereafter “the property”) (Exhibit 2.) She reserved out her house lot and residence.   The property is described as follows:

That certain tract of land, with any buildings thereon, containing about 170 acres, more or less, and situated on the Northwest Corners Road in the Town of North Stonington, County of New London and State of Connecticut and bounded and described as

NORTHERLY by lands formerly of William W. Bailey and Edward Saunders;

EASTERLY by lands formerly of Louis Main;

SOUTHERLY by lands now or formerly of Z.T. York, and Dennison Swan;

WESTERLY by land formerly of William S. Bailey

or however otherwise the same may be bounded.

EXCEPTING THEREFROM, that land conveyed to Joseph Roy Williams by Roy P. Williams and Vivian Williams by Warranty Deed dated April 22, 1975 and recorded in Volume 48 at page 234 of the Land Evidence Records of the Town of North Stonington, Connecticut, and that certain tract of land, with Grantor's home and outbuildings thereon, containing about 2 acres more or less, said premises being the residence of the Grantor and known as 36 Northwest Corner Road, North Stonington, Connecticut.

The trust contained several provisions which impact the decision in this case.   Article 2 contains two provisions limiting the trustee's powers to deal with the trust property “except as directed by all of the Beneficiaries.”   Article 3 relates to the potential dealings of the trustee with third parties as it may affect real estate and provides that no interest in real estate can be effective unless recorded on the land records.   Article 4 provides that upon termination of the trust the trustee will convey the trust estate to the Beneficiaries in their respective interests.   Article 6 requires that any amendments to the trust must be signed by all of the Beneficiaries.

On February 25, 1993, at the recommendation of her attorney, Matthew Thomsen, Mrs. Williams entered into an agreement providing clarification of the administrative provisions of the Trust.   The agreement provided that if the beneficiaries of the Trust differed in opinion as to the directions that should be given to the trustee, a majority vote by beneficial interest, as stated in the most recent schedule of benefits, would control.  (Exhibit 3.) This document, signed by the Trust beneficiaries, Vivian Williams, Debra Gabriele, Robert Gabriele and Philip Gabriele, was also recorded on the North Stonington Land Records.

Beginning on December 29, 1992, and continuing until February 11, 1998, Mrs. Williams made a series of gifts of percentages of interest in the Williams Trust to her daughter, Debra Gabriele, and her grandsons, Philip Gabriele and Robert Gabriele.   Schedules of Beneficial Interests were executed with respect to the same.   Of this series of gifts, the final result was that Mrs. Williams owned 49.34% of the Trust;  Debra 20.86%;  Robert 14.9% and Philip 14.9%. (Exhibits 4–11.)   There is no evidence suggesting that these Schedules were recorded on the land records.   There is also no evidence that those interests have changed since that time.

The Trust and the gifts were made for both tax planning and land preservation purposes.   Mrs. Williams knew that her daughter, Debra, and Debra's children agreed with her philosophy of keeping the land intact and undeveloped.   Her son, Joseph, had already received a piece of land from the family holdings on April 22, 1975, and sold it to a developer in 1981 for $75,000 (Exhibits 17 and 18) which greatly upset his parents.   Keeping the land in the family and undeveloped for as long as possible was a priority for Mrs. Williams and, together with estate tax planning, a motivating reason for establishing the Trust.  (Affidavit of Attorney Thomsen, Exhibit 14.)

In 2004, at the age of 80, twelve years after establishing the Trust, Mrs. Williams began to have medical and cognitive difficulties.   On April 15, 2004, while at the Westerly Hospital she was diagnosed by a neurologist, Dr. Radin, as having “mild dementia.”   Exhibit 26.

Her son, Joseph, routinely stayed in her home in winter and he took over her daily care and activities.   Joseph excluded Debra and her children from contact with their mother.   While living in his mother's home over the winter, Joseph found her Will and a copy of the Trust.   His response was to go to the North Stonington Probate Court and demand that the judge change his mother's Will and the nominee trust.   He did this repeatedly.  (Affidavit of Judge Pensis, Exhibit 15.)   Mrs. Williams' daughter, Debra Gabriele, also visited the probate court and expressed serious concern that her brother would not allow her to visit her mother and refused to communicate regarding the mother's recent breast cancer diagnosis, which Debra had learned of by a call from Mrs. Williams' doctor.  (Exhibit 15.)   The North Stonington Probate Judge was sufficiently concerned about Mrs. Williams that the judge herself petitioned for an involuntary conservatorship for Mrs. Williams.  (Exhibit 19.)   She recused herself from the subsequent proceedings and appeared as a witness in favor of establishing a conservatorship for Mrs. Williams in November 2004.   Because of disagreement between the two doctors' medical reports (Exhibit 20) and because of the conflict among her children that caused Mrs. Williams obvious distress during the contested hearing, Debra Gabriele requested that, in her mother's best interest, the application be withdrawn.   The acting judge withdrew the petition and no finding of either capacity or incapacity was made at that time.   The medical evaluations that form the basis for the reports are Exhibits 21 and 22.

While all of this was going on Joseph arranged for a new attorney, recommended to him by a friend, to meet with his mother to do a new estate plan for her.   He did not contact Attorney Thomsen, Mrs. Williams' longtime attorney.   The new attorney, Richard Lewin, met with Mrs. Williams and Joseph together.   Attorney Lewin in his affidavit indicated that Mrs. Williams seemed confused at their first meeting.   With Joseph present, she told Attorney Lewin that she did not understand the Trust that she had created;  she did not understand the gifts to Debra and her sons;  and did not understand the effect of those gifts.   Mrs. Williams then stated that she wanted the Trust revoked.  (Affidavit of Attorney Lewin, Exhibit 16.)   Mr. Thomsen, the Trust Scrivener, had represented Mrs. Williams for many years before she became ill, understood the family issues well, but was not then consulted to provide background information to Attorney Lewin on Mrs. Williams, the Trust, its purpose or her estate plan.

Attorney Lewin prepared a deed for Mrs. Williams to sign as Trustee purporting to convey all trust assets (the 170 acres of real estate) from the Trust to herself individually on October 18, 2004.  (Exhibit 12.)

Three days later, on October 21, 2004, Mrs. William's regular doctor, Dr. Main, did an examination which led him to give a diagnosis that she suffered from “senile dementia with depression, Alzheimer type.”   Dr. Burchenal did an evaluation of Mrs. Williams some time later on November 16, 2004.   He found that, while she had been diagnosed with mild dementia in February.2004 during a hospital stay, “no significant reduction in cognition found today.”

On November 2, 2004, shortly before the conservatorship hearing, Attorney Lewin prepared a Revocation of Trust for Mrs. Williams' signature.  (Exhibit 13.)   None of the other Trust's beneficial owners were consulted or involved in the decision-making process to convey the sole trust asset to Mrs. Williams, nor did they consent to the transfer.   After learning of the deed and attempted revocation, Attorney Thomsen prepared the Affidavit (Exhibit 14) and had it recorded on the North Stonington Land Records.

Mrs. Williams, now 87 years old, is still living.   She was formally declared incompetent in 2006 through a temporary conservatorship (Exhibits 22 and 23), followed by a permanent involuntary conservatorship of the person and estate that is still in effect.  (Exhibits 24 and 25.)

Other facts may be set forth in the analysis which follows.

III. LAW

General Statutes § 47–31(f) provides that in a quiet title action “[t]he court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”   “The prevailing party must prove its title or interest in the disputed property by a preponderance of the evidence.”  (Citation omitted.)  Remington Investments, Inc. v. National Properties, Inc., 49 Conn.App. 789, 797 (1998).

“ ‘The issue of intent as it relates to the interpretation of a trust instrument ․ is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent.’   Heffernan v. Freedman, 177 Conn. 476, 481, 418 A.2d 895 (1979).   The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable.   See Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 585 A.2d 1189 (1991)”;  Cooley v. Cooley, 32 Conn.App. 152, 159, 628 A.2d 608, cert. denied, 228 Conn. 901, 228 Conn. 901, 634 A.2d 295 (1993).  “We cannot rewrite ․ a trust instrument.   The expressed intent must control, although this to be determined from reading the instrument as a whole in the light of the circumstances surrounding the ․ settlor when the instrument was executed, including the condition of her estate, her relations to her family and beneficiaries, and their situation and condition.   The construing court will put itself as far as possible in the position of the ․ settlor in the effort to construe ․ any uncertain language used by her in such a way as shall, conformably to the language, give force and effect to her intention ․ But the quest is to determine the meaning of what the ․ settlor said and not to speculate upon what she meant to say.”  Id.

“[A] fundamental tenet for the construction of a ․ trust is to ascertain, within the bounds of the law, the intent of the testator, grantor or settlor ․ In determining the intent of the settlor, the words used in the instrument are to be interpreted in their ordinary sense, and all of the provisions of the trust instrument must be construed together, with every word given effect if possible ․ When the language of the trust instrument is not ambiguous, intent can be ascertained from the express terms of the trust itself.”  (Citations omitted;  internal quotation marks omitted.)  Tremaine v. Tremaine, 235 Conn. 45, 61, 663 A.2d 387 (1995).

IV. ANALYSIS AND CONCLUSIONS

Title to the real estate, described above, containing about 170 acres on Northwest Corner Road, in the Town of North Stonington, County of New London, Connecticut, remains vested in The Williams Trust (Nominee Trust) created December 29, 1992, by Vivian Williams, settlor.

The beneficiaries of the said Trust and the proportions of their respective interests are as shown and described in a Schedule of Beneficial Interests VI signed and acknowledged by Vivian Williams on February 11, 1998.  (Exhibit 11.)

The court reached these conclusions by the determination of several separate and independent issues.

First, the attempted conveyance of the property out of the trust and back to Mrs. Williams by a deed of October 18, 2004, and the attempted revocation of the Trust by a notice of November 2, 2004, are declared void and of no effect by reason of the fact that (1) Mrs. Williams lacked the necessary capacity to execute the documents due to her mental condition, and (2) any such transactions, even if otherwise effective, were brought about by the exercise of undue influence by Joseph Williams.   In reaching this result the court considered the opinion of the doctor at the Westerly Hospital on April 15, 2004 that Mrs. Williams was suffering from mild dementia.   Also, the affidavit of Attorney Richard Lewin indicated that when he saw Mrs. Williams she was “confused” and did not understand many of her prior activities.   Further, Dr. Main, who was her regular doctor, after an examination on October 21, 2004 concluded that she suffered from dementia.   These determinations were all made in relative close proximity to the attempted transactions.   Whereas, the contrary finding by Dr. Burchenal on November 11, 2004, was somewhat later and also contained an acknowledgment that at an earlier time that year she was diagnosed with mild dementia.   The mental capacity to make a deed is defined as whether at the time of executing the deed the person possessed understanding sufficient to comprehend the nature, extent and consequences of the deed.   Because Mrs. Williams was unable to remember and understand the trust she had created and the gifts she had made coupled with the medical history, it is not possible for the court to determine that she had the requisite mental capacity to sign either a deed or the revocation of a trust.

With regard to the undue influence, it is hard to imagine a clearer case for such a finding from the evidence in the stipulated exhibits.   The Probate Court judge in her affidavit sets out the background.   Joseph Williams was intent on changing his mother's will and trust to benefit him.   He was persistent.   He returned on “several occasions” making the same demands.   He kept his mother isolated.   She was afraid of him as far back as 1992.   She had been ill and hospitalized.   She was at times diagnosed with dementia.   She was 80 years old.   He changed the locks on her house.   He had locks installed on the interior doors.   He was living in her house.   He selected the new attorney.   He did not contact his mother's regular attorney.   He sat in on the conference the new attorney had with his mother.   The probate judge thought something needed to be done to protect Mrs. Williams.   The changes which Mrs. Williams attempted by the deed and revocation would have brought about, if implemented, a benefit to Joseph Williams by increasing his mothers' estate and “undoing” the gifts to his sister and her two sons.   This would have been consistent with some of the demands he was making of the probate judge.

The four elements of undue influence are set forth in the case of Dinan v. Marchand, 279 Conn. 558, 560, fn.1 (2006).(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.   A deed procured by undue influence is voidable regardless of whether the undue influence was exerted by the grantee or someone else.  Fritz v. Mazurek, 156 Conn. 555 (1968).   Undue influence is usually proved by circumstantial evidence since direct evidence is often unavailable.   See Reynolds v. Molitor, 184 Conn. 526 (1981).   In this case, the court finds such evidence.

Second, even if otherwise valid, the attempted conveyance of trust property by the trustee would be in violation of article 2 of the trust document and the subsequent amendment and are declared void for that reason.   That article provides in clear and unambiguous language that the trustee shall have no power to deal in or with the trust estate “except as directed by all of the beneficiaries.”   At the time of the attempted conveyance from the trust back to herself individually there were four beneficiaries and three of them clearly did not agree to her transaction.   There was an exception to that general rule as to terminations, contained in Article 4, but there it is provided that in the event of termination the trust estate will be transferred to the beneficiaries in their respective interests.   That was not involved in the attempted deed out of the trust and was not carried out when Mrs. Williams and her new lawyer attempted a revocation.

Third, even if otherwise valid, any attempted transfer of the trust estate back to the settlor by deed or revocation without compliance with the clear and unequivocal terms of the trust would, and in this case did, constitute a breach of the settlor's fiduciary duty to the beneficiaries.   These transactions are declared void for this reason.   This would be true of both an attempted deed or an attempted revocation.   Mrs. Williams as trustee was a fiduciary. § 45a–199 of the Connecticut General Statutes.   As trustee, Mrs. Williams could not personally benefit from the trust.   See Hall v. Schoenwetter, 239 Conn. 553 (1996).   The attempted transfer of the title to the trust estate assets and the termination were not authorized by the beneficiaries and are in violation of the clear terms of the trust document.

Mrs. Williams, through counsel, relies heavily on the argument that the “gifts” set forth in the schedules of beneficiaries (Exhibits 4–11) are not effective thus depriving the beneficiaries of any interest in the trust estate.   This, it is claimed, is because of the express terms of Article 3 of the Trust which she claims requires such transactions to be recorded on the land records before becoming “valid.”   This is not an appropriate interpretation of the language of the trust.   Article 3, in contrast to Article 2, deals with the requirements of validating the trustee's dealings with outside third parties, as argued by the Gabriele defendants.   The language is to facilitate business dealings with others.   Transfers of beneficial interests among and between the respective beneficiaries are quite different from transfers of trust assets to third parties and are not governed by Article 3. In fact, they are transfers of beneficial interests in the trust itself, not directly in the underlying real estate or other trust assets.

Accordingly, judgment may enter quieting title to the 170 Acres on Northwest Corner Road, North Stonington, Connecticut, described above, in The Williams Trust, described above, and the attempted deed from the trustee to Mrs. Williams of October 18, 2004, recorded at Volume 167 page 433 of the North Stonington Land Records, is hereby declared void and of no effect.   The attempted revocation of that trust by Notice of November 2, 2004, is also declared to be null and void for the reason set forth above.   No costs are awarded to any party.

Robert C. Leuba

Judge Trial Referee

Leuba, Robert C., J.T.R.