Lawrence Litevich v. Probate Court, District of West Haven (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 112) & (# 123)

I

FACTS

This appeal from two decrees of the Probate Court for the District of West Haven, DeGennaro, J., involves two competing wills, one of which was composed in 1991 via traditional means (1991 will), the other of which was created in 2011 through the online legal document drafting service, Legalzoom (Legalzoom will).   Before the court is the defendant's motion to strike the plaintiff's three-count complaint.   In his complaint, the plaintiff, Lawrence Litevich, seeks to vacate two decrees of the probate court that, together, reject the Legalzoom will and admit the 1991 will.¹  The plaintiff also seeks a judicial declaration that the Statute of Wills, General Statutes § 45a–251,² which provides the execution formalities for testamentary instruments in Connecticut, is in violation of the Constitution of Connecticut when applied to the facts of this case.   In the alternative, the plaintiff seeks a declaration that the Legalzoom will created a legally valid method of transferring property at death.   The defendant, James Brennan, Administrator CTA of the estate of Carole Berger (administrator),³ has filed a motion to strike asserting two grounds:  (1) the court lacks subject matter jurisdiction and (2) the plaintiff has not alleged the existence of a valid will.

On February 1, 2013, the plaintiff filed a three-count amended complaint in which he alleges the following facts.   Carole Berger, the decedent and testator in this case, never married and did not have any siblings or children, nor did she maintain an active social life.   Instead, the decedent spent the majority of her time working in a laboratory at the Yale University School of Medicine in the Department of Dermatology (Yale).

The plaintiff was a close friend of the decedent and has known her since 2000, when he met her while performing renovation projects throughout Yale. Thereafter, the plaintiff performed work on the decedent's personal residence and weekend apartment in the Bronx, New York. Through these projects, the two formed a personal relationship wherein the decedent assumed the role of a “second mother” to the plaintiff purchasing yearly Christmas gifts for the plaintiff's children.   According to the complaint, in the final years of the decedent's life, the plaintiff regularly shopped for groceries for the decedent, after which the two watched television together or dined at local restaurants.

The plaintiff alleges further that third party Jeanette Sullivan ⁴ was at all relevant times an employee at Yale, through which she came to know the decedent, beginning in 2002.   As with the plaintiff, Sullivan became the decedent's close friend, and the decedent stopped by Sullivan's office regularly for “chats and camaraderie.”   In addition, the plaintiff alleges that although it was uncommon for the decedent to socialize with coworkers, the decedent did, on occasion, invite Sullivan to the decedent's home for dinner.

The plaintiff alleges further that during the last weeks and months before her death, the decedent, who had been a “heavy smoker” throughout the course of her life, became increasingly tired and lethargic due to failing health.   On July 9, 2011, the decedent contracted with the online document drafting company, Legalzoom, to prepare, inter alia, the Legalzoom will.   A review of the Legalzoom will reveals that it devised the majority of the decedent's estate to Sullivan and Litevich in equal fifty percent shares.   In addition, the Legalzoom will designates Sullivan as the executor of the estate, with Litevich as an alternate.

The plaintiff alleges further in the complaint that in order to complete the Legalzoom will, the decedent logged on to her computer, which the plaintiff alleges “likely” required a password, created an account with Legalzoom and completed a lengthy process to determine with specificity her exact wishes.   This process also required the decedent to provide “all her pertinent personal information” to Legalzoom, including her social security number.   The plaintiff alleges that at all times during this process the decedent was of sound mind and no other party provided her with assistance.

The plaintiff alleges that following the completion of the drafting process, Legalzoom required the decedent to confirm each of the documents she had created before completing her purchase and that this confirmation process was “tantamount to a signature.”   The plaintiff also alleges that Legalzoom required the decedent to pay for its services by credit card and that the decedent did, in fact pay with her credit card.

The plaintiff alleges further that soon after the decedent created the Legalzoom will, she informed the plaintiff that she had left him a portion of her estate.   Prior to that time, neither the plaintiff nor Sullivan ever discussed the decedent's will with the decedent or discussed the appointment of a fiduciary in the event of the decedent's incapacity.   In addition, prior to that time, neither the plaintiff nor Sullivan possessed any knowledge pertaining to the same.   The plaintiff and Sullivan had also never discussed the matter with each other.

The plaintiff alleges further that on July 11, 2011, Legalzoom notified the decedent that it had shipped the Legalzoom will to her.   On July 14, 2011, the decedent, who was then at her apartment in the Bronx, New York, contacted Sullivan via telephone, informed Sullivan that she was not feeling well and asked to be taken to the hospital.   The decedent refused to be admitted to a hospital alone, and did not want to be admitted to a hospital in New York. Accordingly, Sullivan traveled from Milford, Connecticut, to the decedent's Bronx apartment and drove the decedent to Yale New Haven Hospital in New Haven, Connecticut.   After being admitted to the hospital, the decedent informed Sullivan that she did not want the plaintiff to know of her illness because she did not want him to see her in her diminished state.   The decedent also asked Sullivan to retrieve a package from the decedent's landlord in the Bronx, but did not inform Sullivan of the package's contents.

After Sullivan retrieved the package, the decedent informed Sullivan that it contained the Legalzoom will and that it was the decedent's wish that the will be signed before her death.   Then plaintiff alleges, however, that the decedent and Sullivan both erroneously believed that the decedent's signature would be invalid without the attestation of a notary.⁵  Consequently, at the decedent's request, Sullivan attempted to locate a notary, but was unable to have a notary come to the hospital in a timely manner.   A notary did not become available until July 23, 2011.   Meanwhile, between July 22 and July 25, 2011, the decedent “fell into a state wherein she lacked any kind of capacity to execute any kind of legally binding document.”   The decedent died on July 25, 2011.   At the time of her death, Sullivan was holding the decedent's hand.   Sullivan also paid for the decedent's funeral.

After the decedent's death, Sullivan and the plaintiff learned that the decedent had designated the two as beneficiaries of the decedent's various non-probate assets, including several life insurance policies and retirement accounts, the aggregate value of which was approximately $840,000.

On November 30, 2011, Sullivan and the plaintiff applied to the Probate Court to open an estate with the Legalzoom will as the operative instrument.   On April 19, 2012, Hadassah, the Women's Zionist Organization of American (Hadassah), a beneficiary under the 1991 Will, filed the 1991 will with the Probate Court, seeking to have it admitted.

The plaintiff alleges that without permitting discovery or a hearing on the merits, on May 24, 2012, the Probate Court issued a decree summarily denying the Legalzoom will to probate.⁶  Thereafter, on July 16, 2012, the Probate Court issued a second decree admitting the 1991 will.⁷  These two decrees are the subject of the plaintiff's present appeal.   Count one of the complaint requests that the Superior Court vacate the May 24, 2012 decree.   Count two requests that the court vacate the July 16, 2012 decree.   Count three seeks a declaration that the Legalzoom will, in light of the facts of this case, created a legally valid method of transferring property at death and/or that § 45a–251 violates article first, §§ 1 and 20 of the Connecticut Constitution because it requires execution formalities that are not rationally related to their intended purpose.

On November 9, 2012, the defendant filed a motion to strike all counts of the complaint on the two grounds that (1) the plaintiff cannot establish that he is a party aggrieved by either decree of the Probate Court and, therefore, the court lacks subject matter jurisdiction and (2) the plaintiff has failed to allege the existence of a valid will under any possible scenario.

The plaintiff filed an objection and supporting memorandum on February 1, 2013.   Also on February 1, 2013, the plaintiff filed a request to amend the complaint and proposed amendment.   The defendant did not object.   The amended complaint is, therefore, the operative complaint for the purposes of this motion.   On February 27, 2013, the defendant filed an “amended motion to strike” which purports to respond to procedural arguments raised by the plaintiff in its memorandum in objection.   The court heard oral argument on the short calendar on March 11, 2013.

II

DISCUSSION

At the outset, the court notes that “[a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court.”  (Internal quotation marks omitted.)  Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 489–90, 854 A.2d 40 (2004).

The standard for a motion to strike is long-settled.  “Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

A

Subject Matter Jurisdiction

The court first addresses the defendant's subject matter jurisdiction argument.  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)   Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).   Any determination concerning the Superior Court's subject matter jurisdiction is a question of law where, as here, the underlying facts are not in dispute.  O'Halloran v. Charlotte Hungerford Hospital, 63 Conn.App. 460, 463, 776 A.2d 514 (2001).⁸

Section 45a–186(a) provides, in pertinent part:  “[A]ny person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may ․ appeal therefrom to the Superior Court.”   The “right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 45a–186, and] the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal.”  (Internal quotation marks omitted.)  Adolphson v. Weinstein, 66 Conn.App. 591, 595, 785 A.2d 275 (2001).

“The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing ․ In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the court's decision.   General Statutes § 45a–186 ․ Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate ․ The question of [aggrievement ] does not involve an inquiry into the merits of the case ․” (Emphasis in original;  internal quotation marks omitted.)  Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 490.   Thus, our Supreme Court has “interpreted § 45a–186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order.”  McBurney v. Cirillo, 276 Conn. 782, 821, 889 A.2d 759 (2006), overruled on other grounds by, Bette–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).

“Aggrievement falls within two categories, classical and statutory ․ Classical aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate ․ Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case ․ It merely requires a claim of injury to an interest that is protected by statute.”  (Internal quotation marks omitted.)   Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 490.

In his memorandum in support of his motion to strike, the defendant argues that the court is without subject matter jurisdiction because the plaintiff is not a party aggrieved by an order or decree of the Probate Court.   More specifically, the defendant argues that “that plaintiff cannot show, nor does the complaint allege, any facts that if proven would support a finding that Litevich is aggrieved ․” This is so, the defendant argues, because the plaintiff has alleged that he is the beneficiary of an unsigned, undated, unwitnessed will and that such a document could never satisfy the requirements of § 45a–251.   Therefore, the defendant argues, the plaintiff is not aggrieved within the meaning of § 45a–186.   In response, the plaintiff argues that he is classically aggrieved by the two decrees of the Probate Court because he is a beneficiary under the Legalzoom will, and the Probate Court erroneously refused to admit that will to probate.⁹

In the complaint, the plaintiff alleges:  “[The] plaintiff ․ is aggrieved by virtue of being a beneficiary under the Legalzoom will ․ which was denied by the Probate Court, and whose decree indicating the same, is the subject of this appeal.”   The plaintiff also argues in his memorandum of law that he is aggrieved because he is “a beneficiary under the Legalzoom will, and as such he was clearly aggrieved by the Probate Court's decision not to admit that valid will to probate.”   Finally, in the alternative, the plaintiff argues that he has standing to seek vindication of “both the decedent's constitutional liberties and his own.” ¹⁰

Each of the defendant's arguments go to the merits of the case, not to the question of whether the plaintiff has an interest in the estate.   In essence, the defendant has requested that the court find that it is without subject matter jurisdiction because the Probate Court's ruling was correct and/or because the plaintiff's present claim is very likely to fail.   Such analysis is, however, improper to the question of aggrievement because it ignores settled Connecticut law that “[t]he question of [aggrievement] does not involve an inquiry into the merits of the case.”  (Internal quotation marks omitted.)   Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 490.   Thus, the fact that, in the defendant's estimation, the Probate Court's ruling was without error, does not affect the analysis.

Instead, the plaintiff alleges in the complaint that he is the close friend of the decedent and, more importantly, that he is the beneficiary of a testamentary instrument that was denied probate by the Probate Court.   Although the mere status of friendship with a decedent does not establish an interest in an estate;  see, e.g., Adolphson v. Weinstein, supra, 66 Conn.App. 597 (plaintiff must have legal status “vis-a-vis the property” to have standing to bring probate appeal);  the fact that the plaintiff is a direct beneficiary of a document purporting to be a testamentary instrument, when combined with the other facts alleged in the complaint, does establish standing.   Under the facts of this case, the court finds that the plaintiff is aggrieved within the meaning of § 45a–186.   This court does have subject matter jurisdiction to decide the present dispute.

B

Procedural Defects in the Defendant's Motion to Strike

The court next addresses, as a threshold matter, the plaintiff's argument that the defendant's motion to strike is “fatally defective” and that it must therefore be summarily denied.  “Each motion to strike ․ shall separately set forth each ․ claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  Practice Book § 10–41.   “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ․ and that Practice Book [§ 10–42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

Further, our Appellate Court has observed in the course of applying this rule that “[i]nitially, it may appear that form is being elevated over substance by adhering strictly to Practice Book § 10–41.   That section, however, clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion.   As correctly noted by the Superior Court in Bucon, Inc. v. ARC Icesports Danbury, Inc., Superior Court, [complex litigation docket at] Waterbury, Docket No. [X01] CV 99 0160473 (February 8, 2001 [Hodgson, J.] ) [29 Conn. L. Rptr. 421], if that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made.   In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as claims.”  (Internal quotation marks omitted.)   Id., 862 n.2.

The plaintiff argues in his memorandum in objection that Practice Book § 10–41 explicitly requires a party filing a motion to strike to specify the grounds for each insufficiency claimed.   The plaintiff argues further that the defendant has failed to do so here and, therefore, his motion to strike is fatally defective and the court is precluded from issuing ruling on the motion.

The defendant does not attempt to argue that the motion to strike complied with Practice Book § 10–41.   Instead, on February 27, 2013, the defendant filed a pleading it characterizes as an “amended motion to strike,” which the defendant claims solves any procedural defect.

In his original motion to strike, the defendant stated:  “Pursuant to Connecticut Practice Book § 10–39, the defendant ․ moves to strike the complaint for the reason that the complaint fails to allege a cause of action upon which relief can be granted.   A memorandum of law is attached.”   In contrast, in his amended motion to strike, the defendant states that he “hereby amends his motion to strike filed on November 9, 2012 ․ to include in the body of the motion the specific grounds relied upon to support the defendant's motion to strike.   These grounds were previously raised in the defendant's memorandum of law in support of his November 9, 2012 motion to strike, but were not included in the body of the motion itself ․ The defendant does not concede his November 9, 2012 motion fails to satisfy the procedural requirements for a motion to strike, however, out of an abundance of caution, the undersigned hereby files the instant amended motion to strike to set forth in the body of the motion the specific grounds relied upon ․” The amended motion thus sets forth two grounds:  (1) that the plaintiff is not aggrieved and (2) that the plaintiff does not allege in the complaint that the decedent subscribed the Legalzoom will.

By specifically objecting to the defendant's failure to include the grounds for his motion in the motion itself, the plaintiff has not waived the § 10–41 procedural defect.   Although the defendant claims that he “does not concede” that his motion failed to comply with § 10–41, the defendant also states that the grounds for his motion “were previously raised in the defendant's memorandum of law ․ but were not included in the body of the motion itself.”   Thus, it is clear that the defendant's original motion failed to comply with the requirements of Practice Book § 10–41 and the holding of Stuart v. Freiberg, supra, 102 Conn.App. 857, requires that the court conclude that the defendant's November 9, 2012 motion to strike is fatally defective and must be summarily denied.

The question remains, however, whether the defendant is saved by the February 27, 2013 amended motion to strike, which does state the ground upon which the defendant claims that the plaintiff's complaint is legally insufficient;  namely, that the complaint does not allege that the decedent signed the Legalzoom will and, therefore, the will is not a valid will under any possible scenario.   Accordingly, the question becomes whether the court may consider the amended motion as the operative motion in the present case.   At the present time, the plaintiff has not filed a formal written objection regarding the procedural validity of the amended motion.   Similarly, the plaintiff did not raise the issue at the short calendar.

In general, most courts that have considered similar issues have found successive motions to strike impermissible.  “Although the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion ․ [T]he judges reason that Practice Book [§ 10–41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency ․ Practice Book [§ 10–43] provides that a judge deciding a motion to strike in which more than one ground is asserted shall specify the ground relied upon in striking a claim ․ [Because] [t]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike ․ [Therefore], a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds ․ However, [a] second motion to strike may be appropriate in limited circumstances.   For example, when a plaintiff pursuant to Practice Book § 10–44, files a subsequent pleading alleging new facts.”  (Internal quotation marks omitted.).  Stuart v. Freiberg, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 04 0200508 (July 9, 2008, Tobin, J.).

In Stuart v. Freiberg, supra, Superior Court, Docket No. CV 04 0200508, the Superior Court addressed whether a plaintiff could cure a failure to comply with Practice Book § 10–41 by filing a successive motion to strike the defendant's special defenses.   The court examined two separate cases in which the Superior Court was presented with “successive motions to strike in which the defendants' previous motions had been denied for failing to articulate the grounds of the motion in violation of the Practice Book rules.   In each of these cases, the court determined that successive motions were appropriate.”  Id.

For example, in Knickerbocker v. Village Apartments Properties, Inc., judicial district of Stamford–Norwalk, Docket No. CV 01 0182260 (September 23, 1992, Pickett, J.) [7 Conn. L. Rptr. 414], the court concluded that the Practice Book does not explicitly “prohibit [a party] from filing a second motion to strike.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, supra, Superior Court, Docket No. CV 04 0200508.   In addition, “in Irahieta v. Donaldson, [Superior Court, judicial district of Stamford–Norwalk] Docket No. CV 01 0182260 (December 12, 2001, Adams, J.), the court found that [t]he defendant's ․ [successive] motion to strike was prompted by ․ a failure of the [the previous motion] on a matter of form.  [The defendant] thus is not improperly attempting to assert additional or different grounds in each successive motion.   To the contrary, each successive motion and memorandum are substantively identical to the ones filed previously.   Moreover, the plaintiff has not been subject to any delay or prejudice.  [The defendant] wasted no time in addressing the defect in form of the second motion ․ Finally, the plaintiff has suffered little prejudice, if any, in terms of the time and effort required to respond to each successive motion.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, supra, Superior Court, Docket No. CV 04 0200508;  see also, e.g., Grant v. James Street, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5027291 (July 2, 2009, Zoarski, J.T.R.) (48 Conn. L. Rptr. 192) (granting party's request for leave to file amended motion to strike when original motion to strike violated Practice Book § 10–41);  Crosby v. HSBC North American Holdings, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 06 500378 (May 16, 2007, R. Robinson, J.) (considering substance of amended motion to strike;  amended motion responded to procedural deficiencies and opposing party could not show prejudice).

Accordingly, the Superior Court in Stuart elected to adopt the reasoning of those cases that permitted a successive motion to strike that was filed for the purpose of curing a § 10–41 defect because “[those] cases addressed circumstances that are similar to the procedural posture of the present case.   Moreover, the cases that have precluded successive motions generally addressed circumstances in which the moving party asserted new grounds in a successive motion.”  Id.

This court agrees with those cases that have concluded that successive motions to strike may be permissible in limited circumstances;  namely, when the second motion is filed solely for the purpose of curing a Practice Book § 10–41 defect, is timely filed, does not include new or different grounds, the opposing party is not prejudiced, and the interests of judicial economy would be best served by considering the motion.   The court also concludes that this is such a case.

In the first instance, the amended motion was filed prior to the oral argument at short calendar and does not raise new or different grounds.   The court also finds it significant that, after objecting to the first motion's failure to comply with Practice Book § 10–41, the plaintiff did not object to the second motion as procedurally improper in any of its moving papers or at oral argument.   Further, the plaintiff will not be prejudiced by a consideration of the motion because the plaintiff has filed a thorough memorandum of law that is responsive to each of the defendant's substantive points.   The plaintiff also had the opportunity to respond to the defendant's amended motion at the short calendar to the extent it may have been appropriate, but did not do so.

In addition, the court is aware that the complaint's legal sufficiency will be tested and resolved at some point in time.   For example, the complaint's legal sufficiency may be challenged via a motion for summary judgment.   See Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).  “While the fact that there are alternative procedural vehicles for attacking a complaint's legal sufficiency might appear to weigh in the plaintiff's favor, such mechanisms also make it clear that the legal sufficiency of the plaintiff's complaint will [ultimately] be addressed at some point.”  Stuart v. Freiberg, supra, Superior Court, Docket No. CV 04 0200508.   This concern is especially significant in light of the fact that “[t]he design of [the] rules [of practice] being to facilitate business and advance justice, [should] be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.  Practice Book § 1–8.   Further, the [r]ules of practice must be construed reasonably and with consideration of this purpose ․ Rules are a means to justice, and not an end in themselves;  their purpose is to provide for a just determination of every proceeding.”  (Internal quotation marks omitted.)  Shapero v. Mercede, 77 Conn.App. 497, 508 n.18, 823 A.2d 1263 (2003).

Were the court to deny the motion to strike on purely procedural grounds, the business of the court would not be facilitated and justice would not be advanced.   Instead, the court would achieve no more than to delay consideration of the inevitable questions presented by the present facts—i.e., whether § 45a–251 violates the Constitution of Connecticut and/or whether Connecticut ought to adopt the “harmless error” exception followed by other states in relation to their own Statute of Wills.   Such a delay would require the parties to expend additional time and resources needlessly.   This is not a case where the grounds for the defendant's motion to strike are unclear.   Accordingly, because a denial of the motion to strike would conflict with the purposes of the Practice Book, the defendant wasted no time in amending the motion to cure the defect, the plaintiff has not objected, the plaintiff will not be prejudiced, and concerns of judicial economy weigh in favor of considering the motion to strike at this time, the court finds that it is appropriate to rule on the defendant's amended motion to strike.

C

General Statutes § 45a–2511Whether the Legalzoom Will Satisfies the Statute

Connecticut's Statute of Wills, § 45a–251, provides:  “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the decedent and attested by two witnesses, each of them subscribing in the testator's presence;  but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the decedent situated in this state.”  “[O]ur [S]tatute [of Wills] amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution, or never, so far as the act of the testator is concerned.”   (Emphasis added;  internal quotation marks omitted.)  Hatheway v. Smith, 79 Conn. 506, 511, 65A, 1058 (1907).   The statute has, from its inception, been treated as an act that “permits a disposition of property by will upon compliance with the prescribed conditions.”  (Emphasis added.)  Id. Thus, to be valid, a will must strictly comply with the requirements of the statute.   See Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991);  see also Hatheway v. Smith, supra, 79 Conn. 511 (Statute of Wills “prohibitory and exhaustive”).   The statute is designed to “effectuate the policies of safeguarding titles and frustrating fraudulent claims.”  Starcez v. Kida, 183 Conn. 41, 45 n.2, 438 A.2d 1157 (1981).

The defendant argues that the Legalzoom will does not comply with the strictures of § 45a–251 because it was neither subscribed by the decedent nor signed by two witnesses in the decedent's presence.   The plaintiff does not dispute that the Legalzoom will does not satisfy the statute and the allegations of the plaintiff's complaint, and a review of the Legalzoom will itself, confirm the validity of the defendant's position.

The language of § 45a–251 plainly provides that for any testamentary instrument to be valid it must be subscribed by the decedent and attested by two witnesses in the decedent's presence.  Gardner v. Balboni, supra, 218 Conn. 225.   In the present case, the will is not subscribed by the decedent or two witnesses.   Accordingly, the court concludes that the Legalzoom will fails to satisfy the statute.

The plaintiff argues, nevertheless, that the court should not grant the defendant's motion to strike because either (1) § 45a–251 violates article first §§ 1 and 20 of the Connecticut Constitution because the statute is arbitrary in light of its purpose and, therefore, fails rational basis scrutiny, or (2) the court should adopt the “harmless error” doctrine followed by several other states, which provides that a will is not invalid for failing to comply with statutory formalities if the proponent can establish by clear and convincing evidence that the decedent adopted the document as his or her will.   The plaintiff contends that the present case is one to which the harmless error doctrine should apply.   The court will address the plaintiff's arguments in turn.

2

Equal Protection

The court first addresses the plaintiff's argument that “as applied to the plaintiff and the decedent, § 45a–251 offends the equal protection guarantees enshrined in article first, §§ 1 and 20, of the Constitution of Connecticut because it establishes two classes of people and then confers unequal benefits on those two classes.   To wit, the testamentary wishes of those who utilize authentication techniques that were available when the first Statute of Wills was promulgated under King Henry VIII in 1540 are honored, whereas the testamentary wishes of those who employ modern techniques to safeguard the authenticity of their wills are ignored.”

In Connecticut, the right to equal protection of the laws is derived from article first, §§ 1 and 20 of the Constitution of Connecticut.   The Constitution of Connecticut, article first, § 1, provides, in pertinent part:  “All men when they form a social compact, are equal in rights;  and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”   Similarly, article first, § 20, of the Constitution of Connecticut provides:  “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry or national origin.”

“[T]he constitutionality of a statute presents a question of law ․ It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt ․ The court will indulge in every presumption in favor of the statute's constitutionality ․ Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.”  (Internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008).

“[F]ederal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.”   (Emphasis in original;  internal quotation marks omitted.)  Id. Accordingly, a determination that a constitutional claim would fail to pass muster under traditional federal constitutional law analysis is not automatically fatal to a constitutional claim.   Instead, in such a scenario, State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), directs the courts of this state to consider whether the state constitution would provide more protection.   Because, however, federal law does set the minimum guidepost for constitutional claims brought under our state constitution, the first step for the court is to analyze the constitutionality of the statute under traditional federal and state equal protection analyses.   See City Recycling, Inc. v. State, 257 Conn. 429, 444, 778 A.2d 77 (2001) (“Before undertaking a Geisler analysis ․ we ordinarily would conclude, as a necessary predicate, that [a statute] could withstand scrutiny under traditional equal protection analysis”).

i

Whether § 45a–251 Treats Similarly Situated Individuals Differently

“[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged ․ Conversely, the equal protection clause places no restrictions on the state's authority to treat dissimilar persons in a dissimilar manner ․ Thus, [t]o implicate the equal protection [clause] ․ it is necessary that the state statute ․ in question, either on its face or in practice, treat persons standing in the same relation to it differently ․ [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated ․ The similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action ․ Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged.”  (Citation omitted;  internal quotation marks omitted.)   Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 157–58.

The plaintiff argues that § 45a–251 creates an economic classification that treats similarly situated individuals differently.   More specifically, the plaintiff argues that:  “[§ 45a–251] creates two classes of testators.   The first is comprised of those testators whose will utilizes the formalities required by the statute and whose property is devised according to the testamentary intent set forth in that will.   The second class of testators created by § 45a–251 includes those who choose to devise property via a will that fails to heed the formalities required by the statute, and whose property is not devised according to the testamentary wishes set forth in the will.”   In response, the defendant argued at the short calendar that § 45a–251 does not create a classification at all but, instead, requires all individuals wishing to create a will to comply with the statutory formalities.

The court agrees with the defendant that § 45a–251 does not create a classification—that is to say, § 45a–251 does not treat similarly situated individuals differently.   The plain language of the statute clearly provides that it applies to all testamentary instruments and, by extension, to all testators.   Thus, pursuant to the statute, every individual who desires to make a will must do so in the manner prescribed.

To the extent that the statute may appear to treat individuals differently—in the sense that it treats putative testators who do follow the statutory formalities differently from putative testators who do not—the plaintiff does not provide specific analysis as to how these two groups are similarly situated.   The court concludes that to the extent the statute may make a classification in this manner, it does so because the two groups are not similarly situated and, therefore, the statute does not implicate the equal protection clauses of the United States or Connecticut Constitutions.

Despite the fact that the plaintiff argues that Connecticut's Statute of Wills finds its origin in the version first enacted by King Henry VIII in 1540, our Supreme Court has noted a stark contrast between the two acts.   In Hatheway v. Smith, supra, 79 Conn. 514, the court observed that “English courts have apparently treated [the Statute of Wills] as one in derogation of the common law rather than as an act giving the power of testamentary disposition of property and defining the limits of the power thus given ․” (Emphasis added.)   Instead, in Connecticut, the Statute of Wills is “a positive rule for the transmission of property.”  (Emphasis added.)  Id., 511.   It is an act that “permits a disposition of property by will upon compliance with the prescribed conditions.”  (Emphasis added.)  Id. Thus, in contrast to the English version of the statute, Connecticut treats the Statute of Wills as a legislative grant of power, not as an act modifying the common law or, by extension, an act that modifies a natural right to make a testamentary disposition.

Testators who comply with the statute have exercised the grant of power given them by the legislature in accordance with the reasonable conditions placed upon that power.   Further, such testators have provided what our legislature, in authorizing the passing of property by will, has determined to be reliable evidence that a will is valid.   Testators who fail to comply with the statute have not properly exercised the testamentary power given by the legislature and have not provided what the legislature has determined is reliable evidence of the absence of fraud.   The two groups do not stand upon an equal footing.   Accordingly, the fact that § 45a–251 is a statute that authorizes—i.e., grants the power to make—testamentary dispositions gives great weight to the conclusion that the Statute of Wills does not treat similarly situated individuals differently because the act sets one set of requirements that must be followed by all testators.

For this same reason, the court rejects the plaintiff's argument that the statute impermissibly distinguishes between similarly situated individuals on the basis of a choice to utilize modern authentication techniques over “antiquated” authentication techniques.   Even a putative testator who utilizes the most modern and reliable authentication techniques is not similarly situated to a testator who complies with the statute.   Without a standardized set of authentication techniques, the ability of the statute to further its purposes is eroded.   Were the plaintiff's argument taken to its logical extreme, the Probate Court, instead of being permitted to rely upon the statute's formalities as evidence that a will was validly executed, would be constitutionally mandated to examine in each case whether a testator who did not utilize the statutory formalities had, nonetheless, used equally reliable drafting and authentication techniques.¹¹  In sum, § 45a–251 does not create an impermissible classification, either on its face or as applied to the facts of the present case.

ii

Rational Basis Review

Were the court to agree that § 45a–251 creates a classification, the plaintiff's argument would, nonetheless, still founder.   Assuming, arguendo, that the statute did create an economic classification that treats similarly situated individuals differently, the court will apply rational basis review.¹²  See, e.g., City Recycling, Inc. v. State, supra, 257 Conn. 445 (“In the context of an equal protection challenge to social and economic legislation that does not infringe upon a fundamental right or affect a suspect group, the classification drawn by the statute will not violate the equal protection clause if it is rationally related to a legitimate public interest.”  [Internal quotation marks omitted.] );   see also Fulton Corp v. Faulkner, 516 U.S. 325, 345, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (economic classification warrants rational basis review).

“This court has held, in accordance with the federal constitutional framework or analysis, that in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the [e]qual [p]rotection [c]lause is satisfied [as] long as [ (1) ] there is a plausible policy reason for the classification ․ [ (2) ] the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker ․ and [ (3) ] the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational ․” (Citations omitted;  internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 158–59.

The plaintiff concedes that § 45a–251 satisfies the first two prongs of rational basis analysis.   Namely, there is a plausible policy reason for the classification and the legislature may rationally have considered the legislative facts on which the classification is based to be true—that is to say, that the formalities required by § 45a–251 would deter fraud.   The plaintiff argues, however, that the relationship of the classification to its goal is so attenuated as to render the classification arbitrary or irrational.   More particularly, the plaintiff contends that the statute is designed to effectuate the policies of safeguarding titles and frustrating fraudulent claims by requiring a testator to reduce his or her will to writing and subscribe the will in the presence of two witnesses, who must also subscribe the will.   Thus, the plaintiff argues that “[i]mplicit in § 45a–251 is the irrebuttable presumption that a will authenticated utilizing any method other than through compliance with the statutorily required formalities is a fraud.”

The plaintiff argues further that the statute is impermissibly attenuated from its purpose of preventing fraud because it is both overinclusive and underinclusive.   The plaintiff contends that the statute is overinclusive because it voids many wills that are authentic representations of the testator's intent.   The plaintiff states, as an example, that a will created by the testator via digital means and which utilizes multiple modern forms of digital authentication, such as the Legalzoom will, is irrefutably presumed fraudulent by the statute, while a will drafted by a third party who never knew the testator, but which otherwise complies with the statutory formalities, is presumed valid.   In this fashion, the plaintiff argues, the statute conclusively presumes certain wills to be fraudulent despite the fact that the circumstances of their creation would establish otherwise.   The plaintiff also contends that the statute is underinclusive because it fails to preclude wills created under circumstances in which all would agree that the will was fraudulent.   For example, the statute could, presumably, admit to probate a will that was created via a civil conspiracy, wherein one individual drafts and signs the will as the testator, and two others “witness” the signature.   The defendant does not respond to the plaintiff's arguments.

The court does not agree with the plaintiff that § 45a–251 is so attenuated from its purpose that it fails to pass muster under traditional rational basis analysis.   The goal of preventing fraudulent testamentary instruments has perhaps never been more important than it is in the modern age.   The information revolution, despite all of its myriad benefits, has made it more possible than ever to commit identity theft or fraud through electronic means, especially via the internet and social media.   Thus, the statute's goal of avoiding fraud is well-served by the continued requirement that two individual witnesses attest that the testator declared a document to be his or her will and subscribed that will in the witnesses' presence.   The formalities are not some mere archaic annoyance designed to hamper the intent of a testator who wishes to use modern technology.   Instead, the formalities required by § 45a–251 continue to provide a process that has in the past and continues today to ensure the existence of reliable evidence that an individual's exercise of legislatively-granted testamentary power is valid, and that the testamentary document itself is what it purports to be.   The statute is not, therefore, too attenuated from its purpose.

Further, the court cannot conclude that the plaintiff has met his heavy burden of establishing that the statute violates the testator's equal protection rights as applied to this case.   The jurisprudence of our Supreme Court has long recognized as acceptable the effect that some wills that do accurately represent the testamentary wishes of their creators will be denied probate under the statute.   The statute does so because “[i]t treats the general benefit secured by such [statutory formalities] as outweighing the occasional possible misfortune that may be caused through neglect to comply with the arbitrary conditions imposed as necessary to the enforcement of the [statutory formalities].”  Hatheway v. Smith, supra, 79 Conn. 522.

Here, the plaintiff has, in effect, asked this court to find that the decedent possessed a constitutionally protected right not to comply with the statute because the decedent utilized a number of authentication techniques which, although not provided by the statute, purportedly confirm just as well that the Legalzoom will is valid.   The court does not agree, however, that the result of the occasional denial of an otherwise non-fraudulent will is a matter of constitutional importance each time it occurs.

iii

Geisler Analysis

The determination that § 45a–251 survives traditional equal protection analysis is not, however, the end of the inquiry.   Instead, State v. Geisler, supra, 222 Conn. 672, requires this court to examine whether the Constitution of Connecticut affords the plaintiff broader protection.  “[I]n State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), [the Supreme Court] set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that we may reach reasoned and principled results as to its meaning.   These factors are:  (1) the text of the operative constitutional provision;  (2) holdings and dicta of [the Supreme Court] and the Appellate Court;  (3) persuasive and relevant federal precedent;  (4) persuasive sister state decisions;  (5) the history of the operative constitutional provisions, including historical constitutional setting and the debates of the framers;  and (6) contemporary economic and sociological considerations, including relevant public policies ․ Although, in Geisler, [the Supreme Court] compartmentalized the factors that should be considered in order to stress that a systemic analysis is required, [the court] recogniz[ed] that they may be inextricably interwoven ․ [Moreover], not every Geisler factor is relevant in all cases.”  (Citation omitted;  internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 157.

The plaintiff argues that if the court concludes that § 45a–251 passes traditional equal protection analysis, the court should find that the Constitution of Connecticut provides greater protection pursuant to five of the six Geisler factors.   Broadly, the plaintiff argues:  (1) the text and history of the Connecticut Constitution, when combined with the history of Connecticut's Statute of Wills, establishes that Connecticut citizens traditionally enjoyed broad testamentary rights, including the right to pass property outside of the statutory formalities; ¹³  (2) persuasive federal precedent establishes that testamentary freedom is entitled to constitutional protection, (3) persuasive precedent from our sister states establishes the same;  and (4) contemporary policy considerations support the existence of a constitutionally protected right.   The plaintiff also notes with regard to the sixth factor—holdings and dicta from our Supreme Court or Appellate Court—that because the issue is a matter of first impression there is no such pertinent holdings or dicta.   The court will address each of the plaintiff's arguments in turn.

Regarding the first and second Geisler factors, the court agrees with the plaintiff that the text and history of the Constitution of Connecticut indicates that the provisions of article first, § 20 are to be read expansively.   The Supreme Court observed in Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 164–65, that “the history surrounding the adoption of article first, § 20, of the state constitution indicates that its drafters intended that provision to embody the very strongest human rights principle that this convention can put forth to the people of Connecticut ․ and, in accordance with that purpose, that the provision should be read expansively ․ [E]ven if we were to assume, arguendo, that the groups enumerated in article first, § 20, as amended, were intended to constitute an exhaustive list of suspect classes, the plaintiffs are not barred from recognition as a quasi-suspect class ․” (Citations omitted;  internal quotation marks omitted.)   Our constitution's equal protection clause is to be read broadly, but the plaintiff has not claimed membership in a suspect or quasi-suspect class.   Instead, the plaintiff concedes that the present classification, if there be one at all, is an economic classification that is reviewed under the rational basis test, the least exacting of all forms of constitutional scrutiny.

In relation to the history of the statute itself the plaintiff argues that “the common law rights of Connecticut citizens prior to the adoption of our state constitution in 1818 further helps to illuminate the history of testamentary freedom in Connecticut.”   The plaintiff contends further that, prior to 1725, there are several examples of wills being admitted to probate in Connecticut despite the fact that the wills did not necessarily strictly comply with statutory requirements.   The plaintiff therefore concludes that “the citizens of Connecticut have always enjoyed testamentary freedom, which in the early portion of our state's history included the right to use wills that did not always conform to the formalities imposed on wills at that time.”

The court disagrees with the plaintiff's interpretation of the history of Connecticut's Statute of Wills as affording expansive testamentary freedom.   Instead, as already observed, the Supreme Court recognized as early as 1907 that testamentary rights in Connecticut had always been a creature of statute.   See Hatheway v. Smith, supra, 79 Conn. 511 (Statute of Wills positive rule that “permits a disposition of property by will upon compliance with the prescribed conditions.”  [Emphasis added.] )   Further, since at least 1821, the statute has been considered “not merely directory, but prohibitory and exhaustive.”  Id., 516–17.   It is true the court in Hatheway did note that “the privilege of making wills by word of mouth or nuncupative wills, given by the first Statute of Wills, was occasionally used until 1750 and possibly until forbidden by the act of 1821 ․” Id., 516.   But the court also observed that the privilege to make a noncupative will was “given by the first Statute of Wills,” and “seems to have fallen into disuse prior to [1821].”  Id. Accordingly, the court is unable to conclude that, early in its history, Connecticut viewed testamentary freedom as an expansive common-law right.   Instead, Connecticut has always treated the right to make a testamentary disposition of property as a grant of power by the legislature, subject to the legislature's rational restrictions.

With respect to the third factor, persuasive federal precedent, the plaintiff relies heavily upon the U.S. Supreme Court's holding and analysis in Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d. 668 (1987), to support the proposition that federal precedent would favor the finding of a constitutionally protected equal protection right to the testamentary disposition of one's property.   The court disagrees with the plaintiff's characterization of Hodel for three reasons.   First, as the court has already concluded above, § 45a–251 passes muster under traditional federal equal protection analysis.   Second, although the plaintiff is correct that Hodel v. Irving, supra, 481 U.S. 715, stated “the right to pass on valuable property to one's heirs is itself a valuable right,” that case did not concern the equal protection clause, but the takings clause embodied in the fifth amendment of the United States Constitution.   Third, as explained below, Hodel is readily distinguishable from the present case.

Hodel concerned a challenge to § 207 of the Indian Land Consolidation Act of 1983, Pub.L. 97–459, Tit. II, 96 Stat. 2519, a statute that was designed to address the increasingly extreme fractionalization of land owned by Native Americans.   Specifically, in the early nineteenth century, Congress enacted legislation that was designed to protect the Native American population from the “improvident disposition of their lands to white settlers ․” Hodel v. Irving, supra, 481 U.S. 707.   This early legislation prohibited members of the Native American population from passing real property that was located within an Indian reservation via a testamentary instrument prior to the year 1910.  Id., 706.   Instead, all such property was to pass through the appropriate state's law of intestacy.  Id. Over time, however, the result of this scheme was the extreme fractionalization of the ownership of plots of land.  Id., 712–13.   The average acre was owned by 14 individuals, with some acres being owned by as many as 439 individuals.  Id. In order to ameliorate the problem, Congress passed § 207 of the Indian Land Consolidation Act, which provided for the automatic escheat of land to the government of the Indian Reservation if the individual owner's interest in a given plot of land was below a certain threshold at the time of the individual's death.  Id., 712.

The plaintiffs in Hodel were intended beneficiaries of testamentary gifts under various wills that failed due to § 207, which the plaintiffs claimed amounted to a violation of the takings clause of the fifth amendment of the United States Constitution.   After observing that the law amounted to a “total abrogation of the right to pass property,” the court found the statute did constitute an unjust taking without compensation.  Id., 716.

The present case is readily distinguishable from Hodel.  The present case does not involve a claim of unjust taking without compensation, a type of claim that requires a plaintiff to establish an interest in real property.  Stop the Beach Renourishment, Inc. v. Dept. of Environmental Protection, 130 S.Ct. 2592, 2601, 177 L.Ed.2d 184 (2010).   To the contrary, the present claim requires the plaintiff to establish that the decedent was a member of a suspect class or, otherwise, that the law cannot survive rational basis review.  Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 158–60.   More significantly, § 45a–251 does not amount to a “total abrogation” of the right to pass property.   To the contrary, the statute is a grant of the power to make testamentary dispositions and, as such, exists to facilitate the passing of property by, inter alia, ensuring a reliable method of avoiding fraud.   Accordingly, the federal precedent relied upon by the plaintiff is readily distinguishable from the present case and the court cannot conclude that Hodel points in the direction of expanding the equal protection guarantees of the Connecticut Constitution to include the testamentary freedom the plaintiff requests.   The court, through its own research, is unable to locate other federal precedent that would suggest otherwise.

The plaintiff argues that the fourth Geisler factor—persuasive precedent from other states—also militates in favor of expanding protection.   In particular, the plaintiff relies upon Estate of French, 365 A.2d 621 (D.C.1976), Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974), and Shriners Hospital for Crippled Children v. Zrillic, 563 So.2d 64 (Fla.1990), three cases which invalidated mortmain ¹⁴ statutes upon equal protection grounds.   The plaintiff also relies upon Nunnemacher v. State, 129 Wis. 190, 108 N.W. 627 (1906), wherein the Supreme Court of Wisconsin stated that the right to pass property by will is an inherent right as opposed to a legislative grant of power.

Nunnemacher is inapposite to this court's analysis because it goes against our state's own understanding of the right to pass property via a testamentary instrument as one that is wholly statutory in nature.  Hatheway v. Smith, supra, 79 Conn. 511.   Although it weighs slightly in favor of the plaintiff that at least some of our sister states conclude otherwise, the fact remains that Connecticut does not.   The court in Nunnemacher itself observed that the overwhelming number of states treated testamentary inheritance as a creature of statute.  Nunnemacher v. State, supra, 108 Wis. 628.   The plaintiff has not, therefore, provided an adequate rationale upon which this court may overturn more than one hundred years of Connecticut precedent in order to join the minority.

The other three cases upon which the plaintiff relies, while also weighing in the plaintiff's favor, do not conclusively suggest that the Constitution of Connecticut provides the type of equal protection rights that the plaintiff advocates.   Each of Estate of French, supra, 365 A.2d 621, Estate of Cavill, supra, 329 A.2d 503, and Shriners Hospital for Crippled Children v. Zrillic, supra, 563 So.2d 64, addressed a mortmain statute that placed specific restrictions upon the manner in which a testator could devise property to a religious organization.   Consequently, in each case, the court was faced with a suspect classification whereby the relevant statute treated testators desiring to give gifts to religious organizations differently than testators who did not desire to do so.   As previously noted, Connecticut's Statute of Wills does not treat similarly situated individuals differently.

Finally, in relation to the fifth factor, the plaintiff argues that contemporary policy considerations warrant the expansion of equal protection rights to include circumstances such as the plaintiff's.   In support of this argument, the plaintiff observes that Connecticut's Statue of Wills has remained largely unchanged since 1821, and that over the course of approximately the last four decades several states have come to decry strict compliance to their own Statutes of Wills as unreasonable in some circumstances.   These states have, instead, adopted the “substantial compliance” ¹⁵ or “harmless error” exception provided by both the Uniform Probate Code § 2–503, p.141 (1997), and 1 Restatement (Third), Property, Wills and Other Donative Transfers § 3.03, p.217 (1999).   The harmless error doctrine provides, broadly, that a will which fails to comply with statutory formalities will not be invalid if the proponent can prove, by clear and convincing evidence, that the testator adopted the document as his or her will.

As previously noted, although the court agrees that the abrogation in other states of statutory formalities weighs slightly in favor of the plaintiff, this factor, when combined with the others, does not establish that the Connecticut Constitution either presently provides or should provide equal protection rights of the type the plaintiff asserts.   The existence of the harmless error doctrine in other states establishes, at most, that certain states have concluded that the statutory formalities are overly strict.¹⁶  As discussed in the next section, the harmless error doctrine remains a minority doctrine in few jurisdictions throughout the United States.   In addition, and significantly so, the fact that states have chosen the harmless error doctrine as their response to the perceived-harshness of the Statute of Wills, as opposed to some other abrogation, suggests that the aegis of constitutional law is too extreme a remedy for the sometimes harsh results of the statute.   The plaintiff has not produced, and the court has not located, a single state that has concluded that the appropriate response to the inflexibility of the Statute of Wills is constitutional protection.

Having reviewed all of the Geisler factors that are relevant to this case, the court cannot conclude that the Connecticut Constitution provides broader protection to the testamentary rights of the citizens of this state than that which is provided through traditional equal protection analysis.   Accordingly, the plaintiff's equal protection argument is rejected in its entirety.

The court is not unconcerned with the plight of the parties in the present case, nor is it unaware of the harshness of the present result.   The fact remains, however, that the plaintiff has not met his heavy burden of overcoming the strong presumption that the Statute of Wills, a longstanding and validly enacted statute in this state, is so arbitrary or capricious as to rise to the level of being unconstitutional under either the federal or state constitution.

3

Harmless Error

As a final matter, the court addresses the plaintiff's argument that in order to “remedy the irrational requirements for will execution in § 45a–251, [the] court should adopt the harmless error test that has been adopted by both the Uniform Probate Code and the Restatement [ (Third), Property, Wills and Donative Transfers § 3.3 (1997).]   Specifically, [the] court should read the requirements of § 45a–251 to be satisfied if the proponent establishes by clear and convincing evidence that the decedent adopted the subject document as his or her will.”   At oral argument, the defendant responded that the decision to make a substantial alteration to the Statute of Wills, such as the adoption of an exception, is a question reserved for the legislature.   The defendant also argued that even in those jurisdictions that follow the harmless error doctrine, the exception applies only to minor defects, such as where a testator signed an incorrect page.   The defendant emphasizes the fact that the present case is one wherein the decedent did not sign the will at all and, therefore, claims that even under the harmless error doctrine the Legalzoom will would fail.

The harmless error doctrine provides that a testamentary instrument is not invalid for failure to satisfy the execution formalities of a given jurisdiction if the proponent of the will can establish by clear and convincing evidence that the testator intended the document to be his or her will.   See Uniform Probate Code, supra, § 2–503, p.141 (“Although a document ․ was not executed in compliance with [the formalities for execution of a will], the document or writing is treated as if it had been executed in compliance ․ if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute ․ the decedent's will ․”);  1 Restatement (Third), supra, § 3.03, p. 217 (“A harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will”).

According to the Restatement, “the purpose of the statutory formalities is to determine whether the decedent adopted the document as his or her will.   Modern authority is moving away from insistence on strict compliance with statutory formalities, recognizing that statutory formalities are not ends in themselves but rather the means of determining whether the underlying purpose has been met.   A will that fails to comply with one or another of the statutory formalities, and hence would be invalid if held to a standard of strict compliance with the formalities, may constitute just as reliable an expression as a will executed in strict compliance.”   1 Restatement (Third), supra, § 3.03, p. 218, comment b. Thus, “[t]he trend toward excusing harmless errors is based on a growing acceptance of the broader principle that mistake, whether in execution or in expression, should not be allowed to defeat intention nor to work unjust enrichment.”  Id. Accordingly, when applying the harmless error doctrine “[t]he purposive question is whether the evidence regarding the overall conduct of the testator establishes, in a clear and convincing manner, that the testator adopted the document as his or her will.”  Id.

The doctrine is, however, no panacea.   Instead, “[i]n applying [the harmless error doctrine] to particular cases, a hierarchy of sorts has been found to emerge among the formalities.”  Id. For example, “[t]he requirement of a writing is so fundamental to the purpose of the execution formalities that it cannot be excused as harmless under the principle of [the] Restatement.   Only a harmless error in executing a document can be excused ․” (Emphasis in original.)  Id. Even then, “[a]mong those defects in execution that can be excused, the lack of a signature is the hardest to excuse.   An unsigned will raises a serious but not insurmountable doubt about whether the testator adopted the document as his or her will.”  Id., 219.

To date, the Uniform Probate Code's harmless error doctrine has been legislatively adopted in the following American jurisdictions:  Colorado;  Colo.Rev.Stat. § 15–11–503;  Hawaii;  Haw.Rev.Stat. § 560:2–503;  Michigan;  Mich. Comp. Laws § 700.2503;  South Dakota;  S.D. Codified Laws § 29A–2–503;  and Utah;  Utah Code § 72–2–503.   The doctrine appears to have been judicially adopted in New Jersey;  Alleged Will of Ranney, 124 N.J. 1, 589 A.2d 1339 (1991);  California;  Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 182 Cal.Rptr. 222 (1982);  and Pennsylvania;  Kajut Will, 2 Fiduc.2d 197, 22 Pa. D. & C.3d 123 (Pa. Orphan's Ct.1981).   Finally, the common law jurisdictions of Australia, Canada and Israel have each adopted the doctrine.   See 1 Restatement (Third), supra, § 3.3, pp. 221–24.

Neither the General Assembly nor the Supreme Court has incorporated the harmless error doctrine into § 45a–251.   Further, the court's research has revealed no Connecticut court that has addressed whether the harmless error doctrine is appropriate within the context of Connecticut law.   Whether to adopt the harmless error doctrine in Connecticut is, therefore, an issue of first impression.

As a general principle, our common law provides that anything that may tend to weaken the Statute of Wills is to be guarded against.   See Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 7 n.8, 448 A.2d 190 (1982), overruled on other grounds by Erickson v. Erickson, 246 Conn. 359, 716 A.2d 92 (1998), citing Waterbury National Bank v. Waterbury National Bank, 162 Conn. 129, 140, 291 A.2d 737 (1972).   Further, “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)   In re Yarisha F., 121 Conn.App. 150, 156, 994 A.2d 296 (2010).

In the present case, the plaintiff has asked the court to add a “judicial gloss” to § 45a–251 in order to interpret that section as satisfied if a proponent can establish by clear and convincing evidence that a testator adopted a subject document as his or her will.   In support of this argument, the plaintiff contends that the testator's confirmation of the will prior to her final purchase, when combined with the other authentication techniques the testator used and the testator's having provided her social security number to Legalzoom, was “tantamount to a signature.” ¹⁷  Section 45a–251 is, however, plainly unambiguous, leaving nothing for this court to interpret.   Our Statute of Wills is both “prohibitory and exhaustive.”  Hatheway v. Smith, supra, 79 Conn. 511.   There is no room for play in the language.

The plaintiff has requested a remedy that this court simply cannot provide.   It is not for this court to decide to adopt a substantial abrogation of an unambiguous statute that has existed, substantially unchanged, for almost 200 years.   Questions concerning whether alternative modern authentication techniques are equally reliable and/or more desirable are, instead, properly reserved for the legislature.

Moreover, were the court to agree with the plaintiff that Connecticut law allows for the harmless error doctrine, it would not apply to the facts of this case.   As the defendant observes, and as confirmed by the commentary to 1 Restatement (Third), supra, § 3.03, within the harmless error doctrine exists a “hierarchy” of defects.   Failure to sign a will at all, as with the case presently before the court, is considered by those states that have used the doctrine to be one of the most difficult defects to overcome.  Id. Therefore, even if Connecticut were to follow the doctrine, it would still be a stretch to apply it to facts such as those presently before the court, where the will was signed by neither the decedent nor any witnesses.   The “electronic signature” claimed by the plaintiff is not sufficient because, even if electronic signing were allowed by § 45a–251, a question the court does not now decide, the signature does not appear on the face of the will.   Accordingly, the court rejects the plaintiff's arguments relating to the harmless error doctrine.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike is granted in its entirety.

Wilson, J.

5/17/13

FOOTNOTES

FN1. Both wills are attached to the complaint as exhibits..  FN1. Both wills are attached to the complaint as exhibits.

FN2. General Statutes § 45a–251 provides:  “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator's presence;  but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the testator situated in this state.”.  FN2. General Statutes § 45a–251 provides:  “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator's presence;  but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the testator situated in this state.”

FN3. In addition to the administrator, the complaint names as defendants the following parties:  The Probate Court for the District of West Haven, Hadassah, the Woman's Zionist Organization of America (Hadassah) and eight additional beneficiaries of the 1991 will.   The complaint also names Jeanette Sullivan and Wei–Li Lee, additional beneficiaries of the Legalzoom will, as parties to the appeal.   Only Hadassah has filed an appearance.   Hadassah does not join Brennan in the present motion to strike..  FN3. In addition to the administrator, the complaint names as defendants the following parties:  The Probate Court for the District of West Haven, Hadassah, the Woman's Zionist Organization of America (Hadassah) and eight additional beneficiaries of the 1991 will.   The complaint also names Jeanette Sullivan and Wei–Li Lee, additional beneficiaries of the Legalzoom will, as parties to the appeal.   Only Hadassah has filed an appearance.   Hadassah does not join Brennan in the present motion to strike.

FN4. Although Sullivan was a party in the proceedings before the Probate Court, during which she alleged that she was a beneficiary of the Legalzoom will, Sullivan has not joined the plaintiff in the present appeal..  FN4. Although Sullivan was a party in the proceedings before the Probate Court, during which she alleged that she was a beneficiary of the Legalzoom will, Sullivan has not joined the plaintiff in the present appeal.

FN5. Section 45a–251 does not require that a decedent's signature be accompanied by a notary's attestation..  FN5. Section 45a–251 does not require that a decedent's signature be accompanied by a notary's attestation.

FN6. A copy of the May 24, 2012 decree is attached to the complaint as an exhibit..  FN6. A copy of the May 24, 2012 decree is attached to the complaint as an exhibit.

FN7. A copy of the July 16, 2012 decree is also attached to the complaint as an exhibit..  FN7. A copy of the July 16, 2012 decree is also attached to the complaint as an exhibit.

FN8. Although the argument that the court lacks subject matter jurisdiction is more appropriately raised through a motion to dismiss, the court notes that “[t]he objection of want of [subject matter] jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”   (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011)..  FN8. Although the argument that the court lacks subject matter jurisdiction is more appropriately raised through a motion to dismiss, the court notes that “[t]he objection of want of [subject matter] jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”   (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

FN9. The plaintiff does not attempt to argue that he is statutorily aggrieved..  FN9. The plaintiff does not attempt to argue that he is statutorily aggrieved.

FN10. Despite stating that the plaintiff has standing to seek vindication of “both” his rights and the rights of the decedent, the plaintiff does not assert a violation of his personal constitutional rights in either his complaint or his memorandum of law.   Instead, the plaintiff argues in his memorandum only that, because the decedent is deceased, her fundamental right to make a testamentary disposition of her property must be vindicated by an administrator of her estate, in this case, the plaintiff..  FN10. Despite stating that the plaintiff has standing to seek vindication of “both” his rights and the rights of the decedent, the plaintiff does not assert a violation of his personal constitutional rights in either his complaint or his memorandum of law.   Instead, the plaintiff argues in his memorandum only that, because the decedent is deceased, her fundamental right to make a testamentary disposition of her property must be vindicated by an administrator of her estate, in this case, the plaintiff.

FN11. The court finds it significant that the statute is unconcerned with the origin of a particular document.   The statute does not, for example, state that a will drafted via traditional means shall be valid whereas a will created via an internet-based drafting service is not.   The law merely provides that all wills must be executed in accordance with the statutory formalities..  FN11. The court finds it significant that the statute is unconcerned with the origin of a particular document.   The statute does not, for example, state that a will drafted via traditional means shall be valid whereas a will created via an internet-based drafting service is not.   The law merely provides that all wills must be executed in accordance with the statutory formalities.

FN12. The plaintiff concedes that any classification made by § 45a–251 is subject to rational basis review..  FN12. The plaintiff concedes that any classification made by § 45a–251 is subject to rational basis review.

FN13. This argument combines Geisler factors nos. one and two..  FN13. This argument combines Geisler factors nos. one and two.

FN14. A typical mortmain statute limited the manner in which a testator could make a testamentary gift to a religious organization.   See, e.g., Woodruff v. Marsh, 63 Conn. 125, 135, 26 A. 846 (1893)..  FN14. A typical mortmain statute limited the manner in which a testator could make a testamentary gift to a religious organization.   See, e.g., Woodruff v. Marsh, 63 Conn. 125, 135, 26 A. 846 (1893).

FN15. The nomenclature “substantial compliance” appears to derive from Professor Langbein's 1975 law review article:  J. Lanbgein, “Substantial Compliance With the Wills Act,” 88 Harv.L.Rev. 489 (1975).   More recently, however, both the Uniform Probate Code and Restatement have used the name:  “harmless error doctrine.”.  FN15. The nomenclature “substantial compliance” appears to derive from Professor Langbein's 1975 law review article:  J. Lanbgein, “Substantial Compliance With the Wills Act,” 88 Harv.L.Rev. 489 (1975).   More recently, however, both the Uniform Probate Code and Restatement have used the name:  “harmless error doctrine.”

FN16. The harmless error doctrine has been legislatively adopted in:  Colorado, Colo.Rev.Stat. § 15–11–503;  Hawaii;  Haw.Rev.Stat. § 560:2–503;  Michigan;  Mich.Comp. Laws § 700.2503;  South Dakota;  S.D. Codified Laws § 29A–2–503;  and Utah;  Utah Code § 72–2–503.   The doctrine has been judicially adopted in:  New Jersey;  Alleged Will of Ranney, 124 N.J. 1, 589 A.2d 1339 (1991);  California;  Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 182 Cal.Rptr. 222 (1982);  and Pennsylvania;  Kajut Will, 2 Fiduc.2d 197, 22 Pa.D. & C.3d 123 (Pa. Orphan's Ct.1981).   See also 1 Restatement (Third), supra, § 3.3, pp. 221–24..  FN16. The harmless error doctrine has been legislatively adopted in:  Colorado, Colo.Rev.Stat. § 15–11–503;  Hawaii;  Haw.Rev.Stat. § 560:2–503;  Michigan;  Mich.Comp. Laws § 700.2503;  South Dakota;  S.D. Codified Laws § 29A–2–503;  and Utah;  Utah Code § 72–2–503.   The doctrine has been judicially adopted in:  New Jersey;  Alleged Will of Ranney, 124 N.J. 1, 589 A.2d 1339 (1991);  California;  Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 182 Cal.Rptr. 222 (1982);  and Pennsylvania;  Kajut Will, 2 Fiduc.2d 197, 22 Pa.D. & C.3d 123 (Pa. Orphan's Ct.1981).   See also 1 Restatement (Third), supra, § 3.3, pp. 221–24.

FN17. The court notes that General Statutes § 1–267(8) provides:  “ ‘Electronic signature’ means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”   Similarly, Black's Law Dictionary (9th Ed.2009) defines “signature” to mean “A person's name or mark written by that person or at the person's direction ․ Any name, mark, or writing used with the intention of authenticating a document.”   Black's Law Dictionary (9th Ed.2009) also provides a definition for “electronic signature,” which is defined as “An electronic symbol, sound, or process that is either attached to or logically associated with a document (such as a contract or other record) and executed or adopted by a person with the intent to sign the document.   Types of electronic signatures include a typed name at the end of an email, a digital image of a handwritten signature, and the click of an ‘I accept’ button on an e-commerce site.”   The defendant has not attempted to dispute the plaintiff's claim that the authentication and confirmation process undertaken by the testator in the creation of the Legalzoom will could constitute an electronic signature.   Whether it is a signature or not is not pertinent to the court's analysis because the document did not contain a signature at all..  FN17. The court notes that General Statutes § 1–267(8) provides:  “ ‘Electronic signature’ means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”   Similarly, Black's Law Dictionary (9th Ed.2009) defines “signature” to mean “A person's name or mark written by that person or at the person's direction ․ Any name, mark, or writing used with the intention of authenticating a document.”   Black's Law Dictionary (9th Ed.2009) also provides a definition for “electronic signature,” which is defined as “An electronic symbol, sound, or process that is either attached to or logically associated with a document (such as a contract or other record) and executed or adopted by a person with the intent to sign the document.   Types of electronic signatures include a typed name at the end of an email, a digital image of a handwritten signature, and the click of an ‘I accept’ button on an e-commerce site.”   The defendant has not attempted to dispute the plaintiff's claim that the authentication and confirmation process undertaken by the testator in the creation of the Legalzoom will could constitute an electronic signature.   Whether it is a signature or not is not pertinent to the court's analysis because the document did not contain a signature at all.

Wilson, Robin L., J.