Glen Baron v. Aleta Deroy et al. (2013)

MEMORANDUM OF DECISION

I. STATEMENT OF THE CASE

These are two appeals from the decision of the Probate Court for the Probate District of New London admitting to probate a certain will of Edith Baron.   The two appeals were consolidated for trial.   In docket number CV 08–4009097, the plaintiff is Glen Baron and the defendants are Aleta Deroy, Jeanne Baron and the New London Probate Court.   In docket number CV 08–4009098, the plaintiff is Aleta Deroy and the defendants are Jeanne Baron, Elias Baron, Glen Baron and the estate of Edith Baron.   All parties are represented by counsel or have appeared pro se except the Probate Court of New London and the estate of Edith Baron.

The cases were previously tried to the court.   On appeal to the Appellate Court, the judgment of the trial court was reversed and the cases were remanded for further proceedings.  Deroy v. Baron, 136 Conn.App. 123 (2012).

II. FACTS

The decedent, Edith Baron, died on July 20, 2006.   She was survived by three children:  Aleta Deroy, Jeanne Baron and Glen Baron.   Two documents were submitted to the Probate Court purporting to be the last will and testament of the decedent.   The first will, dated February 12, 2002, devised the entirety of the decedent's estate, including the decedent's interest in an 86–acre farm located at Glasgo Road in the town of Griswold, to Deroy and Glen Baron in equal shares.   The second will, dated July 3, 2002. devised the decedent's interest in the farm to Jeanne Baron and provided that the residence and remainder of her estate should be distributed equally to each child.

Plaintiffs Aleta Baron and Glen Baron contested the admission of the second will claiming that the decedent lacked testamentary capacity at the time of the execution of the will on July 3, 2002.   The Probate Court disagreed and admitted the second will and testament of the decedent.

At the time of her death, Edith Baron's principal asset was her interest in the 86–acre farm.

On February 3, 2002, the decedent conveyed her interest in the farm to herself and the defendant Jeanne Baron in survivorship.   Nine days later, she quitclaimed her interest in the property to John Duggan, an attorney, who immediately transferred the same interest back to the decedent.   Consequently, on the date of her death, Edith Baron and her daughter, Jeanne Baron, owned the farm as tenants in common.  DeRoy v. Baron, supra, 136 Conn.App. 125 n.2.

Additional facts will be stated as necessary.

III. JURISDICTION

Appeals from Probate are limited by Connecticut General Statutes (CGS) § 45a–186(a) to any person aggrieved by any order, denial or decree of a Court of Probate.   The plaintiffs in both cases, Glen Baron and Aleta Deroy, are children of the deceased, Edith Baron, and have an interest in the issues now before the court.   It is therefore found that both plaintiffs are aggrieved and have standing to prosecute these appeals.   May Stokes' Appeal from Probate, 5 Conn.Sup. 169 (1937).

IV. ANALYSIS

Although the Probate Court issued a formal written decision on November 5, 2008, it was not preceded by a hearing on the record;  therefore, the provisions of CGS § 45a–186b do not apply.  “In an appeal from Probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the Probate Court, whether or not it was actually offered.”  Thomas v. Arafeh, 174 Conn. 464, 467 (1978), McGrath v. Gallant, 143 Conn.App. 129, 134 (2013).

After trial, briefs were filed by the parties on May 30, 2013.   The court is not bound to consider any claim of law not properly briefed.  Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).¹

Two issues are now before the court.

(1) Was the decedent, Edith Baron, possessed of testamentary capacity when, on July 3, 2002, she signed the document offered as her last will and testament.

(2) Whether the document executed by Edith Baron as her last will and testament was produced by undue influence.

(1)

It is claimed by the plaintiffs that Edith Baron lacked testamentary capacity at the time that she executed her will on July 3, 2002.

“Any person eighteen years of age or older, and of sound mind, may dispose of his estate by will.”  CGS § 45a–50.

“The burden of proof in disputes over testamentary capacity is on the party claiming under the will ․ While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with this proof, and only then does the burden shift to the opponents to prove incapacity.”  (Interior citations omitted.)  Stanton v. Grigley, 177 Conn. 558, 564 (1979).

In the case at bar, it was found that the will signed by Mrs. Baron on July 3, 2002, was properly executed and a prima facie case of testamentary capacity had been established.   The burden of proof then shifted to the plaintiffs to disprove testamentary capacity by a fair preponderance of the evidence.   Lockwood v. Lockwood, 80 Conn. 513, 520 (1998).

There are a number of objective factors which give rise to questions about the mental functioning of Edith Baron.   On February 3, 2002, she executed a deed conveying the farm to herself and Jeanne Baron in survivorship.   Eight days later, she took steps to void Jeanne Baron's right of survivorship.

Matters surrounding the execution of the second will are also highly unusual.   Edith Baron's grandson, Elias Baron, contacted Attorney Louis Button indicating that his grandmother desired to make a new will.   Attorney Button's family had operated a farm near the Baron farm and he was well known to Edith Baron and her family.   He had attended family functions.   At the time, Attorney Button was a new lawyer and had recently gained employment with the firm of Trebisacci and Reck.

It is significant that Attorney Button was sufficiently concerned about Edith Baron's testamentary capacity that he found it advisable for her to be examined by Christopher Tolsdorf, a highly qualified neuropsychologist.   The evaluation by Dr. Tolsdorf was conducted on June 10, 2002.

Dr. Tolsdorf administered a series of standard tests to Mrs. Baron.   The doctor's report was issued on June 12, 2002.   Subsequently an opinion letter was issued by Dr. Tolsdorf which referred to page four of his report and indicated his opinion as to the decedent's capacity in June 2002.   The undated opinion letter states as follows:

This letter is in reference to a report of Neuropsychological Evaluation of Edith Baron dated 6/12/2002 performed in my office on 6/10/2002.   In that report I concluded that Mrs. Baron suffered from dementia and that is was of sufficient severity to impair her ability to ‘understand even moderately simple legal concepts and even if the implications of her decisions are explained to her she is likely to be confused by the information’ (pg.4).

Based on her clinical presentation and her test results it is my professional opinion that Mrs. Baron was not competent in June 2002 due to dementia.

The report raised questions as to Mrs. Baron's capacity but it was decided to proceed with the will.   Edith Baron came to Attorney Button's office for a preliminary meeting concerning the new will.   She conferred with a senior partner in the firm, Attorney Trebisacci who drafted the will.   At trial, Attorney Trebisacci had no recollection of the 2002 matter.

On July 3, 2002, Edith Baron came to the law office to execute the will.   Attorney Button, who was to supervise the execution of the will recorded that Mrs. Baron was then in a good mood and that she knew who her children were.   During the execution of the will, however, it appeared to Attorney Button that Mrs. Baron was so confused that the proceedings had to be halted.   Attorney Trebisacci was then not in the office so Attorney Button asked another senior partner in the firm, Steven Reck, to come in.   Attorney Reck questioned Mrs. Baron about the will and it was decided to proceed.   The will was then executed in accordance with CGS § 45–251.   At trial, Attorney Reck had no recollection of the event.

“In this state, one may make a will though mentally incapable of transacting business generally.”  Deroy v. Baron, 136 Conn.App. 123, 128 (2012).   There is no particular degree of mental acumen which may be set up to serve as a standard for testamentary capacity.   Testamentary capacity is not the same as the ability to transact ordinary business, or the capacity to execute a deed or contract.”  Id., 29.  “To make a valid will, the testator must have had mind and memory sufficient enough to know and identify the business upon which she was engaged, that of the execution of a will, at the very time she executed it.”  Id., 127–28.

“In order to have sufficient capacity to make a will, the testatrix must have had at the time sufficient mind and memory to comprehend the nature and conditions of her property, the persons who were or should be the natural objects of her bounty and her relation to them, the manner in which she wished to distribute it among or withhold it from them, and the scope and bearing of the provisions of the will she was making.”  Havens v. Mason, 78 Conn. 410, 412 (2005).

On July 3, 2002, Edith Baron knew that she was at Attorney Button's office to execute a new will.   She also knew who her children, the natural objects of her bounty, were.   Although she exhibited some confusion about her assets, she knew that she owned the family farm.   The only question is whether Mrs. Baron had the capacity to understand how the property was to be distributed.

In determining Mrs. Baron's testamentary capacity, Dr. Tolsdorf's report and testimony are of paramount importance.   He was commissioned to examine Mrs. Baron for the specific purpose of determining her mental capacity.   His diagnosis indicated that Mrs. Baron was suffering from dementia.   His report states that Mrs. Baron was “․ demonstrating significant deficits in ․ planning and organization and general information processing capacity.”

While these deficiencies might not rule out testamentary capacity, the following observation in Dr. Tolsdorf's report bears directly on Mrs. Baron's testamentary capacity.

She is alert and aware and she is able to express her preferences but she does not seem to be able to reconcile inconsistencies in her own reasoning.   For example, during the testing she acknowledged that all three of her children should share equally in her estate but she simultaneously indicated that her farm and house would go entirely to one of her children with nothing for the other two.   She was then unable to reconcile the inconsistency between these two statements.

Although a person may have the capacity to execute a valid will while not having the capacity to make a contract or a deed, the testatrix must have mind and memory sound enough to know and understand the business upon which she was engaged.   Here the preponderance of the evidence requires a finding that on July 3, 2002, at the time she signed the document in question, Edith Baron lacked the minimal testamentary capacity required to execute a will.   Due to Mrs. Baron's cognitive impairment, she did not truly understand how her estate could be distributed after her death.   Although she knew that she was making a will, she lacked the capacity to understand what that entailed.

(2)

Plaintiff claims that the document executed by Edith Baron as her last will and testament on July 3, 2002 was produced by undue influence.

It must be found that in July 2002, Edith Baron was a person who could be subject to influence and persons had opportunities to exert undue influence upon her concerning the disposition of her estate.   There was, however, no direct evidence that the will in question was produced by undue influence.   The evidence on the subject is not sufficient to allow inferences of undue influence.   Any such conclusion would be pure speculation.

Plaintiffs have failed to prove that the document executed by Edith Baron as her last will and testament on July 3, 2002 was produced by undue influence.

V. CONCLUSION

Based upon the evidence and the logical conclusions drawn from such evidence, it must be concluded that on July 3, 2002, Edith Baron lacked the testamentary capacity to make a valid will.   Therefore, the will executed by her on that date is void.

It has not been proven that the will executed by Edith baron on July 3, 2002, was produced by undue influence.

Accordingly, judgment is rendered in favor of the plaintiffs in both cases.

Joseph J. Purtill, JTR

FOOTNOTES

FN1. In docket number 68–4009098, Aleta DeRoy v. The Estate of Edith Baron, et al., the second count is an appeal from the Probate Court's decision concerning the final account of the conservator of the Estate of Edith Baron.   No direct evidence was presented in support of this claim, and it has not been briefed.   It will, therefore, be considered as abandoned..  FN1. In docket number 68–4009098, Aleta DeRoy v. The Estate of Edith Baron, et al., the second count is an appeal from the Probate Court's decision concerning the final account of the conservator of the Estate of Edith Baron.   No direct evidence was presented in support of this claim, and it has not been briefed.   It will, therefore, be considered as abandoned.

Purtill, Joseph J., J.T.R.