Jay Tyler v. Thomas Tyler et al (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 255

I. INTRODUCTION

The defendants have filed the instant motions for summary judgment on all counts of the plaintiff's fourth amended complaint and on the cross plaintiff's fourth amended complaint and cross complaint.   The matter appeared on the June 3, 2013 short calendar at which time all parties were heard on their respective positions.   The following facts summarize the nature of the case and the proceedings now before the court.   Additional facts will be referenced as appropriate.

The plaintiff, Jay Tyler, has filed this complaint against his four brothers, Thomas Tyler, Russell Tyler, John Tyler, Jr. and Bruce Tyler, for reform of the trust established by their mother, Ruth Tyler, and for damages, and against Richard Tatoian, the trustee of Ruth Tyler's trust.   Bruce Tyler has filed a cross complaint against Richard Tatoian, the trustee of Ruth Tyler's trust.   The case is claimed for an October 8, 2013, jury trial.   Thomas Tyler, Russell Tyler, John Tyler and Richard Tatoian have moved for summary judgment on the complaint and cross complaint.   The matter before the court is the motion for summary judgment on all counts of the complaint and cross complaint filed by defendants Thomas, John and Bruce Tyler and Richard Tatoian.

II. FACTS AND PROCEDURAL HISTORY

The plaintiff filed the initial complaint (# 100.31), summons (# 100.30) and return of service (# 100.32) in this action on January 28, 2011, against Thomas Tyler, Russell Tyler, John Tyler, Bruce Tyler and Richard Tatoian seeking, among other things, to set aside the will and trust of his and the Tyler defendants' mother, Ruth Tyler.   On February 18, 2011, Thomas Tyler, Russell Tyler, John Tyler and Richard Tatoian (the defendants) ¹ filed a motion to dismiss (# 101) the entire action for lack of subject matter jurisdiction, citing an active probate court case on the same subject.   In a memorandum of decision (# 119) filed June 15, 2011, the court, Levin, J., granted the motion as it applied to the will, but not as it applied to the trust.   On March 21, 2011, defendant Bruce Tyler (cross plaintiff) filed a cross complaint (# 113) against all the other defendants, but on June 17, 2011, withdrew the cross complaint (# 120) as to all defendants except Richard Tatoian.   On December 1, 2011, the cross plaintiff moved to cite additional parties (# 153) Richard Mapplethorpe and Citigroup Global Markets, Inc., the financial advisors for the trust, as defendants.   The counts against Mapplethorpe and Citigroup Global Markets, Inc. were later dismissed for lack of standing (# 159.10) by Levin, J. on January 19, 2012.   The cross plaintiff then moved to compel Tatoian to implead Mapplethorpe and Citigroup Global Markets, Inc. (# 177), on February 9, 2012, which the court, Rush, J., denied (# 177.10) on February 21, 2012.   The complaint and cross complaint have been amended;  the third amended complaint (# 207), filed June 21, 2012, and the fourth amended cross complaint (# 186), filed April 10, 2012, are the operative complaints for the present motion.   Henceforth, they will be known as the complaint and the cross complaint.   Collectively, they allege the following facts.

Ruth B. Tyler died on April 1, 2010 at the age of 95.   She was survived by her five sons, the plaintiff Jay Tyler and the four Tyler defendants.   Ruth Tyler executed two wills, the first on March 27, 1984 (1984 Will), the second on October 24, 1999 (1999 Will).   In addition, she created a Trust in 2004 (the Trust), naming Tatoian as Trustee, and later funded the trust by a transfer of assets she held in a Smith Barney investment account which included shares of Bank of America and Daimler–Chrysler AG stock worth $372,413.75.   The five Tyler brothers are all named as trust beneficiaries upon Ruth Tyler's death.   The 1999 Will and the 2004 Trust both contained a clause stating that each brother would receive an equal share, subject to adjustments based on transfers to the plaintiff Jay and the cross plaintiff Bruce during Ruth Tyler's lifetime.   Article III of the 1999 Will states, “I bequeath to my children ․ share and share alike per stirpes and not per capita, subject to the direction that any sums due and owing to me by my sons Bruce D. Tyler and Jay M. Tyler, shall be deducted from any share which they are to receive under the terms of this Article III. As of October 1, 1999, Bruce D. Tyler owes the sum of $15,000.00 plus interest in the amount of $8,5000.00.   With respect to Bruce D. Tyler, interest on the sum of $15,000.00 is to accrue at the rate of 8% per annum from October 1, 1999 until the approval of the final account by the Probate Court.   This total sum to (sic) principal and interest shall be deducted from any share that he is to receive under the terms of this Article III. As of October 1, 1999, Jay M. Tyler owes the sum of $53,000.00, plus interest in the amount of $13,000.00.   With respect to Jay M. Tyler, interest on the sum of $45,000.00 is to accrue at the rate of 8% per annum from October 1, 1999 until the date of the approval of the Final Account by the Probate Court.   This total sum to (sic) principal and interest shall be deducted from any share he is to receive under the terms of this Article III.” Based on the value of Ruth Tyler's estate, once these deductions are applied, the plaintiff would not be entitled to any money from the residuary disposition.   The plaintiff claims that this clause was the result of undue influence exerted by Thomas Tyler over Ruth Tyler.   The plaintiff claims that in 1999, Ruth Tyler lived alone at eighty-three years of age, did not drive, and was therefore susceptible to undue influence and that in 2004, she was living in an assisted living facility and required daily medical attention.   The plaintiff asserts that by then Thomas Tyler lived in the same town as Ruth Tyler and was therefore in a position to exert undue influence over her.   The complaint further asserts that Thomas has a personal vendetta against the plaintiff and has a reputation, in the words of the complaint, as a “despicable, morally bankrupt monster who enjoys terrorizing people.”   The plaintiff only became aware of the 1999 Will and the 2004 Trust in August of 2010, after pressing the cross plaintiff to make inquiries regarding the status of Ruth Tyler's estate.   Plaintiff relies on this, at least in part, to support his claim of conspiracy against his brothers.

As to the defendant Richard Tatoian the plaintiff alleges that he failed to provide accountings to the Tyler brothers from the date of the creation of the trust through the date of Ruth Tyler's death.   The accountings he released after her death covered the periods from October 8, 2003 through December 31, 2010, and revealed that the securities in the Trust lost $258,915.26 in value between January 1, 2007 and December 2008.²

The active complaint contains seven counts, the cross complaint contains four counts.   The last four counts of the complaint are substantially identical to the four counts of the cross complaint.   The first count of the complaint requests that the Trust be modified because Thomas Tyler exerted undue influence on Ruth Tyler and further claims that the remaining defendants, excepting the cross plaintiff,³ conspired to keep the Trust and the 1999 Will secret from the Plaintiff.   The second count alleges that the acts and omissions of the defendants, excepting the cross plaintiff, deprived the plaintiff of his share of the Trust estate.   The third count alleges that Tatoian negligently failed to furnish accountings to the plaintiff, a beneficiary of the Trust, as required by section 8b of the Trust,⁴ during Ruth Tyler's lifetime, thereby preventing him from discovering Thomas Tyler's undue influence.   The fourth count, first count of the cross complaint, alleges that Tatoian violated General Statutes § 45a–541b(a) in that he failed to invest and manage the Trust assets as a prudent investor would.   Specifically, he assumed an unreasonably high risk of loss;  § 45a–541b(b);  and failed to consider the need for preservation of capital;  § 45a–541b(c).  The fifth count, second count of the cross complaint, alleges that Tatoian failed to diversify the investments of the Trust as required by General Statutes § 45a–541b.   The sixth count, third count of the cross complaint, alleges that Tatoian's failure to provide annual accountings deprived the plaintiff of his right as a Trustee under General Statutes § 45a–204 to seek an order from the Probate Court to compel Tatoian to invest the Trust assets in different securities from those he received them under.   Finally, the seventh count, fourth count of the cross complaint, claims that Tatoian blamed the investment adviser for the $250,000 loss which occurred, yet failed to seek to recover those losses from the investment adviser, James Mapplethorpe, who would be liable for the losses under General Statutes § 45a–541i(d).  The plaintiff asks for his fair share of the Trust;  money damages;  modification of the Trust;  an accounting of Tatoian's doings;  replacement of Tatoian;  transfer of the assets to Tatoian's replacement;  and punitive damages and attorneys fees pursuant to the Unfair Trade Practices Act against Tatoian, Thomas Tyler and Russell Tyler.   The cross plaintiff claims money damages, interest, and such other relief as may be just and proper.

The answers and special defenses to the active complaint and cross complaint have likewise gone through many revisions and challenges.   The defendants' initial answer and special defenses to the active complaint (# 214) were filed on July 26, 2013.   After numerous revisions, motions to strike, and rulings by various judges of this court, the defendants filed a substitute answer and special defenses incorporating the court's changes and renumbering the special defenses on June 21, 2013 (# 295).   This answer represents the operative answer for purposes of the present motion.   The plaintiff filed a motion to strike (# 296) special defense number eleven, on July 1, 2013, which is currently pending.

Tatoian's answer and special defenses to the active cross complaint (# 215), filed July 26, 2013, were likewise subject to numerous motions and decisions.   Tatoian filed a motion for permission to amend his answer and special defenses (# 263) on April 25, 2013.   The cross plaintiff objected to several special defenses (# 269) on May 6, 2013, and the court granted the motion to amend on June 20, 2013.   On July 3, 2013, the cross plaintiff moved to strike (# 298) special defenses nine, eleven and fifteen of the answer and special defenses.   The answer and special defenses contained in the April 25, 2013 motion (# 263) are therefore the operative answer and special defenses to the cross complaint, aside from special defenses nine, eleven and fifteen, which are currently in dispute.

In their answers, the defendants admit that Ruth Tyler executed the 1999 Will and that the copy attached by the plaintiff was a correct copy.   They leave the plaintiff to his proof as to the 1984 Will. They admit that the 2004 Trust was created, but take issue with the copy submitted by the plaintiff in that it contains a handwritten note added by the cross plaintiff and does not contain exhibit B, the 1999 Will. They fail to respond to the alleged approximate amount in the Trust, $280,000, then deny the allegations regarding the division of property in the Trust, Ruth Tyler's susceptibility to undue influence, the asserting of undue influence by Thomas Tyler, and the conspiracy to keep the Trust a secret.   Tatoian then responds to the counts addressed against him alone.   He admits that the Trust was created, but denies that the plaintiff attached a proper copy.   He also admits that the plaintiff's name appears in the Trust, but denies that the plaintiff had or has any real or beneficial interest in the Trust.   He admits that the cross plaintiff was and is a beneficiary of the Trust.   He also asserts that the Trust and the accountings speak for themselves and denies the counts asserting that he had a duty to disclose Trust assets to the plaintiff and cross plaintiff, that he failed to prudently invest the assets of the Trust, that he failed to diversify the assets of the Trust, and that he deprived the plaintiff and cross plaintiff of the opportunity to seek a court order requiring diversification.   Regarding his claimed failure to pursue a claim against the investment advisor, Tatoian admits that the cross plaintiff requested he pursue one, but that he determined it would lack merit, be subject to arbitration, would waste Trust assets, would be contrary to the wishes of the majority of the beneficiaries and would drag out the administration of the Trust.   He leaves the plaintiff to his proof regarding his duty to act in the best interests of the beneficiaries, that he relied on the investment advisor's advice and that he sustained a loss in 2007 and 2008 of approximately two hundred and fifty thousand dollars.   He denies that the investment adviser is liable for the losses, that it was in the best interest of the beneficiaries to seek to recover the losses from them and that he breached his duty by failing to bring an action against the investment advisor.

The defendants' answer to the plaintiff's complaint contains sixteen special defenses;  Tatoian's answer to the cross plaintiff's complaint contains thirteen.   Several of these special defenses are of import to the present motion.   The third special defense of both the answer and the answer to the cross complaint states that any statutory obligations relied on by the plaintiff have been either explicitly waived by the Trust or do not apply.   The fourth special defense of both the answer and the answer to the cross complaint states that Tatoian is not liable because of the exculpatory language in paragraph 5(l ) of the Trust which provides that the Trustee shall not be liable for any mistake or error of judgment other than for willful misconduct.   The seventh special defense of both the answer and the answer to the cross complaint states that Tatoian is not liable for any failure to furnish accountings because he owed no duty to the plaintiff or cross plaintiff to furnish them with accountings prior to Ruth Tyler's passing.   The eighth special defense of both the answer and the answer to the cross complaint likewise states that under section 8(h) of the Trust only adult beneficiaries then entitled to receive income were entitled to receive annual accountings.   The ninth special defense of both the answer and the answer to the cross complaint states that paragraph 5(a) of the Trust provides that the Trustee has broad discretion in managing the Trust, specifically in having no obligation to diversify.   The cross plaintiff moved to strike this special defense (# 298), among others, on July 3, 2013;  the plaintiff moved to strike (# 280) it as well, on May 21, 2013.   The court, Radcliffe, J., on June 18, 2013, denied the plaintiff's motion to strike (# 280.10), but the defendant's motion remains pending.   The twelfth special defense of both the answer and the answer to the cross complaint states that because Tatoian did not make any new investments, he did not rely on the investment advisor and therefore has no claim to assert against him.   The sixteenth special defense of the answer, also the thirteenth of the answer to the cross complaint, claims that under General Statutes § 45a–204 Tatoian may not be held liable for any loss in the Trust proceeds because he maintained the securities which were initially purchased by Ruth Tyler.

The court has scheduled this case to begin trial before a jury on October 15, 2013.   On April 15, 2013, the defendants filed a motion for summary judgment with supporting memoranda and evidence (# 255, # 256).⁵  They filed subsequent supporting memoranda (# 290, # 293).   The plaintiff and cross plaintiff filed a joint objections, memorandum, and exhibits (# 285, # 286 and # 287), on May 28, 2013.   The motion for summary judgment was heard at short calendar on June 3, 2013.   The defendants also filed a motion to strike certain portions of the defendants' affidavits and exhibits in support of their objection to the motion for summary judgment (# 289) on May 31, 2013.   The cross plaintiff then objected to this motion to strike (# 293) on June 19, 2013.   The defendants requested (# 294) on June 19, 2013, that this court, Sommer, J., take the motion to strike on the papers.   The court will consider the arguments presented in the motion to strike as they apply to the motion for summary judgment.

The parties have submitted a variety of documents as evidence in support of and in opposition to the motion for summary judgment.   The defendants' evidence in support of their motion includes a copy of the Trust agreement, a copy of the 1999 will;  affidavits of Thomas Tyler, Richard Tyler and Richard Tatoian in support of the motion for summary judgment;  a Mini–Mental state examination clinical report on aging of Ruth Tyler dated November 28, 2004;  excerpts from the depositions of Celia J. Moffie, the plaintiff, Tatoian and the cross plaintiff;  and two interrogatory answers, evidently by the cross plaintiff, although that is not explicitly stated in the versions submitted to the court.   The plaintiff and cross plaintiff's evidence includes the 1984 Will, the plaintiff and the cross plaintiff's affidavits in opposition to the motion for summary judgment, excerpts from the deposition of the cross plaintiff, a copy of a letter from Patrick Riley dated July 29, 1999, copies of various newspaper clippings, and an excerpt from the plaintiff's answers to interrogatories.

The motion for summary judgment deals with two broad sets of issues, first whether Ruth Tyler established certain terms of the disposition of her estate as a result of undue influence exerted upon her by Thomas Tyler and whether the remaining defendants conspired to cover up said undue influence, as alleged in counts one and two of the complaint, and second whether Tatoian breached his duty as a trustee as alleged in counts three through seven of the complaint and one through four of the cross complaint.

III. APPLICABLE LAW

A. Summary Judgment Legal Standard

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “The test is whether a party would be entitled to a directed verdict on the same facts ․ A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Internal quotation marks omitted.)  Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009).  “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   A party's “conclusory statements, in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment;  and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.”  (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 234 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

B. Motion to Strike Evidence

The defendants have moved to strike portions of the plaintiff's affidavit, portions of the cross plaintiff's affidavit, the letter from Patrick Riley and the newspaper clippings submitted by the plaintiff and cross plaintiff.   The court is unclear as to the propriety of using a motion to strike in this context.   The defendants cite General Statutes § 17–46, which was transferred to General Statutes § 17a–123 and later repealed by Public Acts 1993, No. 93–216, § 8. This statute has no relevance to a motion to strike or any aspect of this case.   The case cited by the defendants;  2830 Whitney Ave. Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569 n.3, 636 A.2d 1377 (1994);  states that “[a] motion to strike is the proper method to attack a counter affidavit that does not comply with the rules ․ See Practice Book §§ 154 and 155.”   Practice Book §§ 154 and 155 are the current 10–41 and 10–42, which relate to the timing of a motion to strike.   There is no mention of affidavits in Practice Book § 10–39, which details the various uses of a motion to strike.   The analysis of the Appellate Court in 2830 Whitney Avenue, supra, is also instructive regarding the court's treatment of the proffered affidavits.   Reviewing the affidavit of the president of the third-party plaintiff in that case, Stephen Russo, the court concluded that seven of the twenty-eight paragraphs were descriptive of the parties and the background to the dispute, eleven contained hearsay and six of the remaining paragraphs contained self-serving unsubstantiated speculation regarding the handling of the subject loan.   The court concluded, “Simply put, Russo's averments do not amount to competent evidence supporting the claims of Quality's cross complaint ․ Hearsay statements are insufficient to contradict facts offered by a moving party ․ and if an affidavit contains inadmissible evidence it will be disregarded ․ If the affidavits and other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.”  Id. (Citations omitted.)   See also Cerniglia v. Levasseur, Superior Court, judicial district of Hartford, Docket No. CV 95 0548181 (February 3, 1997, Lavine, J.) [19 Conn. L. Rptr. 119]. following the practice of accepting a motion to strike an insufficient affidavit.   This court will consider the arguments in the motion to strike and objection thereto in analyzing the evidence presented by the plaintiff and cross plaintiff.

The defendants argue that the affidavits contain significant material which is not based on personal knowledge, which is opinion evidence, and which is properly the domain of an expert.   The plaintiff and cross plaintiff argue that they are being held to a higher standard than the defendants, who have also submitted affidavits not entirely based on personal knowledge.   In addition, they claim that they are competent to testify to some issues, such as their mother's mental health, purely based on their observations of her as lay people.   Finally, they claim that the financial mismanagement by Tatoian was so extreme and gross that even as lay people they can comment on it.   In the context of a summary judgment motion the court will consider any facts which appear to be within the plaintiff's and cross plaintiff's knowledge to be admissible.   It will not consider those facts which they could not possibly have known, such as what the defendants or Ruth Tyler knew or what their motivations were.   This is equally true for the defendants.

The defendants are correct that a large portion of the affidavits do not appear to be based on personal knowledge of the affiants.   The court will distinguish which portions it is relying on in the course of its discussion.   The plaintiff and cross plaintiff are correct that they can present their opinions as to Ruth Tyler's mental condition where such opinions are rationally based on the perception of their perceptions and helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.   See Connecticut Code of Evidence § 7–1.   Finally, with respect to the plaintiff's statements regarding Tatoian's investments, the court will consider those which are based on facts, such as that the account lost over 250 thousand dollars under his trusteeship, but will not consider those which amount to legal conclusions, such as that Tatoian behaved in a negligent manner.

The defendants also argue that court should not consider the letter from Patrick Riley and various newspaper clippings submitted by the plaintiff because they are hearsay.   The plaintiff and cross plaintiff do not state whether they dispute this.   The contents of both are unflattering and if considered would reflect negatively on Thomas Tyler's character.   They depict Thomas as an individual who will do anything to get his way without regard to the rights of others or any moral or ethical code.   As despicable as these charges are, neither the letter from Patrick Riley nor the newspaper clippings are accompanied by any affidavits or any other verification of their accuracy.   They are not authenticated and therefore are inadmissible under Connecticut Code of Evidence § 8–1.   In addition, as statements made by one other than the declarant while testifying, offered to establish the truth of the matter asserted, they are hearsay and thus, inadmissible for any purpose in this proceeding.  Connecticut Code of Evidence § 8–1.   Finally, it is not clear what relevance, if any, they have to the issues before this court.   The court will therefore, grant the motion to strike the affidavits to the extent they refer to the Riley letter and the newspaper articles.

C. Undue Influence as to Defendants Thomas, Russell and John Tyler

The basis of the plaintiff's claim is that his brother Thomas exerted undue influence over their mother which resulted in the deduction of sums relating to monies she'd given to the plaintiff from his distributive share of the trust.   In moving for summary judgment, the defendants argue that there was no undue influence because Ruth Tyler was of sound mind when she made the Trust, that she was not living with any of her children, that she was advised by an independent professional and that the equal disposition of assets in the Trust to all her children was rationally based.   The plaintiff argues that Ruth Tyler was unable to live independently, that Thomas Tyler visited her very frequently, that the significant change in distribution between the 2004 Trust and the 1984 Will demonstrates a likelihood of undue influence and that Thomas Tyler was the type of person who would exert undue influence.   In addition, the complaint alleges that the defendant brothers conspired to keep the Trust a secret and to wrongfully deprive the plaintiff of his share of the trust.   All of the law, arguments and evidence they have presented relate to undue influence.   The court will therefore analyze the undue influence claim and then consider these two additional claims in the light of its conclusions.

“Undue influence is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.”  Reynolds v. Molitor, 184 Conn. 526, 528, 440 A.2d 192 (1981).  (Internal quotation marks omitted.)  “ ‘Pressure of whatever character, whether acting on the fears or hopes—if so exerted as to overpower volition without convincing the judgment—is a species of constraint under which no will can be made.   Importunity or threats, such as the testatrix has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort—these, if carried to a degree in which the free play of the testatrix's judgment, discretion, or wish, is overborne, will constitute undue influence, though no force was either used or threatened.   The existence and exercise of such undue influence is not often susceptible of direct proof.   It is shown by all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind, and of body as affecting her mind, her condition of health, her independence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence.   Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive proof of the existence and exercise of such an influence.’  Hobbes' Appeal, 73 Conn. 462, 467, 470, 47 A. 678 [1900];  Dale's Appeal, 57 Conn. 127, 134, 147, 17 A. 757 [1888].”   Achin v. Pianka, Superior Court, judicial district of New London, Docket No. CV 05 4003726 (May 20, 2010, Leuba, J.T.R.).

“It is stated generally that there are four elements of undue influence:  (1) a person who is subject to influence;  (2) an opportunity to exert undue influence;  (3) a disposition to exert undue influence;  and (4) a result indicating undue influence ․ Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction ․ consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth ․ failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.”  (Citations omitted, internal quotation marks omitted.)  Pickman v. Pickman, 6 Conn.App. 271, 275–76, 505 A.2d 4 (1986);  see also Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006) (same factors).  “Direct evidence of undue influence is often unavailable and is not indispensable ․ On the other hand, the mere opportunity of exerting undue influence, which of course existed to a marked degree in the present case is not alone sufficient ․ There must be proof not only of undue influence but that its operative effect was to cause the testator to make a will which did not express his actual testamentary desires.”   (Citations omitted.)  Lancaster v. Bank of New York, 147 Conn. 566, 573–74, 164 A.2d 392 (1960) (court upheld jury which found undue influence where individual exerting undue influence “failed to notify any of the friends or relatives of the decedent during the two months in which he lay ill in her apartment.”  Id., 575.)

“Confidence, close and continuing, should exist between parent and child.   It is the child's privilege to anticipate some share of the parent's estate.   He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty.   From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised.”   Moneta v. Moneta, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0284642 (Jan. 6, 2006, Arnold, J.).  “It is the child's privilege to anticipate some share of the parent's estate.   He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty.   From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised.”  (Internal quotation marks omitted.)  Berkowitz v. Berkowitz, 147 Conn. 474, 478, 162 A.2d 709 (1960) (court found no error in superior court's decision that transfers to decedent's daughter were free from undue influence, even though daughter lived with her and nursed her through ten years of illness).   Having an interest in the property or money in question demonstrates a disposition to exert undue influence;  Gennotti v. Jetmore, Superior Court, judicial district of New London, Docket No. 05 4001918 (October 3, 2007, Purtill, J.T.R);  as does “a strong and unfortunate animosity in the family”;  Geisel v. Durkin, Superior Court, judicial district of Hartford, Docket No. CV 02 0818949 (October 20, 2004, Berger, J.).

A few illustrative cases will aid the court in applying the factors above.   In Moneta v. Moneta, supra, Docket No. CV 03 0284642, the Superior Court upheld a probate court determination that plaintiffs failed to prove the first, third, and fourth elements of undue influence where defendant was the only sibling living in Connecticut;  the plaintiff kept in regular phone contact with the decedent and visited regularly;  there was no expert testimony as to mental difficulties;  the plaintiff received only sporadic information regarding the decedent's finances;  plaintiff offered “suspicions, opinions and speculation”;  the defendant and his wife provided decedent with daily assistance for six years;  and the decedent gave gifts to the plaintiffs during this time.   The Superior Court also found no undue influence in another case where “[t]he decedent was an alert, active, albeit seriously ill individual.   She was neither totally dependent upon her daughter Shirley nor vulnerable to influence by her daughter.   Her actions, although done during the final stages of her life, were nevertheless voluntary.”   Scinto v. Appeal from Probate, Superior Court, judicial district of Fairfield, Docket No. CV 03 0400636, CV 02 0390149, CV 03 0399970 (October 19, 2005, Dewey, J.).  “The fact that [the decedent] was wholly dependent upon the defendant and that she chose to name him as beneficiary over her nieces and grandniece does not constitute such a constraint of her free will as to amount to undue influence.”   Debus v. Comp, Superior Court, judicial district of Middletown, Docket No. CV 10 6002356 (March 9, 2011, Wiese, J.).   In Merrick v. Corcoran, Superior Court, judicial district of New London at Norwich, Docket No. CV 4105381 (September 20, 2007, Leuba, J.T.R.), the Superior Court upheld the probate court's decision that the will in question was not created under undue influence where the decedent lived separately from the defendant and did not relate concerns regarding his will, despite threats by the defendant, and the decedent's fear of the defendant.

In contrast, the case of Gabriele v. Williams, Superior Court, judicial district of New London, Docket No. CV 09 6001373 (May 26, 2011, Leuba, J.T.R.), provides an example of the quintessential case of undue influence:  “With regard to the undue influence, it is hard to imagine a clearer case for such a finding from the evidence in the stipulated exhibits.   The Probate Court judge in her affidavit sets out the background.   Joseph Williams was intent on changing his mother's will and trust to benefit him.   He was persistent.   He returned on ‘several occasions' making the same demands.   He kept his mother isolated.   She was afraid of him as far back as 1992.   She had been ill and hospitalized.   She was at times diagnosed with dementia.   She was 80 years old.   He changed the locks on her house.   He had locks installed on the interior doors.   He was living in her house.   He selected the new attorney.   He did not contact his mother's regular attorney.   He sat in on the conference the new attorney had with his mother.   The probate judge thought something needed to be done to protect Mrs. Williams.   The changes which Mrs. Williams attempted by the deed and revocation would have brought about, if implemented, a benefit to Joseph Williams by increasing his mothers' estate and ‘undoing’ the gifts to his sister and her two sons.   This would have been consistent with some of the demands he was making of the probate judge.”   In Howard v. MacDonald, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0173842 (April 21, 2003, D'Andrea, J.T.R.), rev'd on other grounds, 270 Conn. 111, 851 A.2d 1142 (2004), the individual allegedly subject to undue influence had previously made a will which left nothing to the defendant.   She was afflicted with a severe deficit in her short-term memory.   The defendant took her to several banks to withdraw funds, at one of which a manager refused to allow her to withdraw the money because she looked confused.   She later asked her nephew to get the money back and did not know how much money she had given to the defendant.

Turning to the present case, the court will examine the evidence presented by the parties in light of the considerations of other courts faced with similar claims.   In order to prevail at trial, the plaintiff and cross plaintiff are required to prove each of the four elements of undue influence, that the undue influence occurred and its operative effect of causing the testator, or in this case, the grantor, to substantially change the provisions of the bequest.   In a summary judgment motion, the defendants are required to prove that there is no dispute as to one element and that they are therefore entitled to judgment.   The court will assess the four factors above, but ultimately the question of undue influence is determined by the totality of the circumstances.   The court will first look to the third and fourth factors, as they are the most readily resolvable.

The plaintiff and cross plaintiff spend considerable time arguing that Thomas Tyler has a “disposition to exert undue influence,” the third factor for undue influence.   Under the law stated above, however, either animosity between the parties or potential financial gain is sufficient to demonstrate this disposition.   Both extreme animosity and potential financial gain to the defendant brothers are evident from the facts of this case.   The evidence submitted by all family parties is replete with evidence of the virulent animosity between the brothers.   In addition, Thomas Tyler, along with John and Russell, clearly stood to gain from the Trust provisions that subtracted monies Jay and Bruce had previously received from their share of the distribution.   These three would each receive one-third of the amount which was subtracted from the plaintiff and cross plaintiff's shares.   Even disregarding the inadmissible material referring to Thomas Tyler, there is sufficient evidence to satisfy the third element required to establish undue influence.   The defendants have not demonstrated that they are entitled to judgment as a matter of law on this factor.

Regarding the fourth factor, whether the result suggests undue influence, the defendants claim that the Trust itself treats each brother equally;  therefore there could be no undue influence.   They further claim that any difference between the 1984 Will and the 1999 Will and 2004 Trust is explained by the plaintiff not visiting Ruth Tyler and by the cross plaintiff forcing her into a retirement home.   They also point out that the Trust was created in October 8, 2004, five years after the 1999 Will, but contains the same property distribution.   The plaintiff and cross plaintiff argue that the difference between the 1984 Will and the Trust demonstrates undue influence.   The 1984 Will, drafted by the cross plaintiff, provided that each brother should be compensated in terms of his net worth, with the brother with the lowest net worth receiving payment until his net worth was equal to the net worth of the brother with the next lowest net worth, and so on.   As the brother with the lowest net worth, the plaintiff would have received, in his estimation, the lion's share of the estate.   Given the depth and duration of the sibling jealousy, mistrust and animosity between the brothers as evidenced in this case, this 1984 formula was more than a little flawed.   The 1999 Will and the 2004 Trust, on the other hand, give each brother an equal share, subject to a correction based on loans to the plaintiff and cross plaintiff, with interest accruing at 8% per year.   Both the 1984 Will on one side and the 1999 Will and 2004 Trust on the other side give preference to one group of brothers by the use of different distribution formulas.   This does not mean that the latter was the result of undue influence.   In fact, it provides for equal distribution whereas the former will do not.   The plaintiff objects to the provision for an accounting of specific sums that he and Bruce have previously received as evidence of undue influence when it is, if anything an attempt to treat the brothers equally.   The consistency between the 1999 Will and the 2004 Trust weakens the claim that Ruth Tyler was subject to undue influence.   In addition, other factors, among them, the passage of time between the 1984 Will and the 1999 Will and 2004 Trust, the actions of the cross plaintiff pushing Ruth Tyler to enter an assisted living facility, the plaintiff's failure to visit his mother and the generally recognized goal of a parent to equalize estate distribution among children suggest that there were reasons for the change to the formula other than undue influence.   In order for a jury to find that the subject change in the distribution of Ruth Tyler's assets was the product of undue influence, the plaintiff would have to present other more persuasive evidence than he has thus far.   Viewed in isolation, the plaintiff's arguments appear to merit submission to a jury.   However, it is important to the court's consideration of all the factors together that the other explanations for the actions of Ruth Tyler and the circumstances in which she took those actions regarding the distribution of assets in the Trust outweigh any claims by the plaintiff of undue influence.

The main issues which face the court in deciding the motions are whether Ruth Tyler was susceptible to undue influence, whether Russell Tyler had the opportunity to exert undue influence over her and whether Ruth Tyler changed the distribution of the trust assets as a result of undue influence exercised over her.   These factors are often so interrelated that many of the cases consider the entirety of the circumstances with primary emphasis on these factors, rather than looking at each factor individually.   The court will, nevertheless, examine each factor independently, keeping in mind that they are interrelated.

In order to demonstrate that Ruth Tyler was not susceptible to undue influence, the defendants point out that the plaintiff and cross plaintiff have not disclosed any experts or indeed any witnesses aside from themselves.   The defendants present the deposition of Celia Moffie, who has been identified as the manager of the assisted living facility at which Ruth Tyler stayed, although Moffie never attests to this in the deposition transcript excerpts the defendants provide.   Defendants also submitted Ruth Tyler's mental status evaluation from the assisted living facility, which was administered on November 28, 2004.   Moffie testified that Ruth Tyler was trusted with her medication and that she was considered an assisted living resident.   Moffie also testified that Ruth Tyler received a score of 29 out of 30 in such topics as orientation, attention and calculation and recall on the evaluation.   Finally, Moffie confirmed that Ruth Tyler was “able to articulate herself, able to make decisions on her own, use her judgment for herself ․” and that nothing “gave [Moffie] any concern that she was not competent or capable of signing the lease or interacting with [Moffie's] staff ․” These day-to-day observations and test results depict Ruth Tyler at a highly functioning and independent cognitive level.   In Russell Tyler's affidavit he states that “[w]hile my mother did suffer the physical effects of aging when she entered the Facility, she was mentally sharp, aware of her circumstances and was of sound mind and memory.   Furthermore, she understood what how [sic] she wanted her financial affairs handled and how she wanted to dispose of her assets.”   He states that no one, including the plaintiff, the cross plaintiff, Ruth Tyler's caregivers and Tatoian questioned her competency between January 1, 1999, and at least December 31, 2005.  Id. In Tatoian's affidavit he states that he believes that Ruth Tyler was mentally competent, that the Trust was not the product of undue influence and that he would not have represented her if he believed she was not competent to execute the Trust.   Tatoian affidavit.   He further reinforced this opinion in his deposition, describing how he had casually known her in the community and believed that she was competent when she executed the trust.   Tatoian deposition, p. 99–100.   The defendants also point to the cross plaintiff's deposition, in which he admitted that Ruth Tyler had been considering a trust for over thirty years.   Bruce Tyler Deposition, p. 41.   In his deposition, the cross plaintiff stated that she was “mentally competent, except that she had slipped like a lot of people who get into their eighties.”  Id., p. 52.   He also stated that after her husband's death, she was left “making decisions that she never had to make before ․” Id. In addition, they point out that in his affidavit the cross plaintiff describes how Ruth Tyler made distributions to each of her children without taking the loans to the plaintiff and cross plaintiff into account, despite Thomas Tyler's urging her not to.⁶  Finally, they submit the deposition testimony of the plaintiff, in which he states that she was “pretty sharp” but “declining and she needed help.”   Jay Tyler Deposition, p. 67.   In addition, he states that she physically started to deteriorate in the mid–2000s, but was still active in a variety of local activities in 2001 and 2002.  Id., 68–69.   Finally, he also states that Ruth Tyler continued to mail him checks over Thomas Tyler's objections.  Id., 81.

In claiming that there is an issue of fact as to Ruth Tyler's susceptibility to undue influence, the plaintiff and cross plaintiff look primarily to the cross plaintiff's affidavit.   The defendants have moved to strike portions of the affidavit which constitute hearsay or of which the cross plaintiff could not have had personal knowledge.   The court has indicated above that these claims are not appropriate for its consideration.   Many of the cross plaintiff's statements as to Ruth Tyler's mental state, however, appear to be based on personal knowledge.   He describes how his mother's health deteriorated in the late 90s, requiring that either he or Russell Tyler would stay at her house every night.   He also describes how she was unable to care for her house and by 2004 was “transformed into a person who had difficulty following what was going on and who found it impossible to make decisions for herself.”   Bruce Tyler's affidavit, p. 14.   The cross plaintiff then threatened to contact the state, and Ruth Tyler agreed to move into an assisted living facility.  Id., p. 14.   He also describes his mother's uncertainty regarding a sale of the family farm which Thomas Tyler arranged with a friend of his, and her inability to confront Thomas Tyler about it.  Id., p. 15.   He also describes an incident where John Tyler claimed Ruth Tyler sold him a car, but she had no recollection of the sale.  Id., p. 18.   Finally, in his deposition, the cross plaintiff states that in 1999 Ruth Tyler was “totally dependent on anyone, on her children to provide food for her and take her places, and she didn't like being alone, and she was a nervous wreck, and she was, you know, very susceptible to being frightened.   She was scared.   So that sums up her mental state.”   Bruce Tyler deposition, p. 42.   The cross plaintiff also states that he, Russell and Thomas all saw Ruth Tyler frequently.  Id., p. 45–46.   Bruce Tyler's deposition and affidavit support the finding that Ruth Tyler was overwhelmed by the responsibility of maintaining her home, that because she did not drive she was dependent on others for food, transportation and social contact.   These factors, and a certain reality of the inevitable physical fragility and loneliness that accompany aging into one's 90s do not lead to the conclusion that Ruth Tyler was susceptible to undue influence as the law defines it.

It also appears that although Ruth Tyler may have resisted moving to the assisted living facility, once she did so she was unburdened by the stress of these concerns, was trusted to manage her own medication and was able to actively participate in activities for her own welfare and social benefit.   Although John lives in Kansas City, Bruce, Thomas and Russell along with their family members visited regularly, for lunch almost daily and on Sundays.   Ms. Moffie testified that she and the other residents enjoyed the frequent visits of Thomas, Russell and Bruce.   In contrast, Ms. Moffie could not recall Jay having visited his mother at all during her time as a resident.   This lack of direct contact with his mother further undermines the validity of the plaintiff's claims of undue influence by Thomas.   Without direct, timely observation, the plaintiff's claims are simply speculation and the result of deep mistrust of Thomas's overbearing personality.

The plaintiff and cross plaintiff have also submitted a document which appears to be the plaintiff's answer to the defendants' interrogatories.   In this answer, he describes various witnesses he plans to call and arguments he plans to make at trial, which closely mirror the arguments he and the cross plaintiff present in their memorandum in opposition and the statements in Bruce Tyler's affidavit.   See Plaintiff's answers to interrogatories.   He also describes Ruth Tyler's condition, stating that she was physically and mentally suffering, that she was nervous, tired, worried and undernourished, and that she was “very receptive to the suggestions of Thomas Tyler under the guise of being helpful and her free will was affected thereby.”   Plaintiff's answers to interrogatories.   These answers are conclusory statements which the plaintiff does not support by specific facts.   Furthermore, they are not signed by the plaintiff, nor, indeed, do they anywhere explicitly state that they are the plaintiff's answers.   The court, therefore, is obliged to disregard them.

The preceding evidence alone is not sufficient for the court to grant summary judgment on the issue of Ruth Tyler's susceptibility to undue influence.   However, in addition to their own affidavits, the defendants have also submitted sworn testimony by Celia Moffie who observed Ruth Tyler and visiting family members on a daily basis and was responsible for assuring that she received services consistent with her needs.   They argue that the deposition testimony and affidavits support their position.   In reply the plaintiff and cross plaintiff have only their own affidavits,⁷ but the defendants simply do not present enough evidence for the court to say that a jury could not find that Ruth Tyler was susceptible to undue influence.   It does appear undisputed, however, that Ruth Tyler had significant presence of mind and was capable of sometimes questioning Thomas Tyler and acting against his urging when she continued to mail checks to the plaintiff.   Coupled with the daily observations of Ms. Moffie, these actions by Ruth Tyler demonstrate that she was capable of making her own decisions on matters that would logically include how she wished her estate to be distributed to her five sons.   Although there may be a question of material fact as to whether Thomas Tyler had a sufficient opportunity to exert undue influence over Ruth Tyler, and whether he in fact, influenced her to change the provisions of the will and create a trust which resulted in plaintiff receiving a smaller share of the estate than the defendants.

As the cases referenced earlier demonstrate, opportunity to exert undue influence means far more than simply opportunity to persuade or cajole.   It means opportunity to rob the other person of their own will, to threaten them and prevent them from seeking help.   It is certainly undisputed that Thomas Tyler had contact with his mother.   The issue is whether the defendants have proven that there is no material fact by which a jury could find that he had sufficient opportunity to overpower her will and force her to distribute her assets in a way which was counter to her wishes.

Defendants

In advancing their position, the defendants point again to Moffie's testimony, wherein she states that Ruth Tyler had a variety of visitors.   Moffie says that she saw Ruth Tyler almost daily from when she entered the assisted living facility in 2004 to June of 2005 and remembers the cross plaintiff, Russell Tyler and Thomas Tyler coming with approximately the same frequency, along with the cross plaintiff's wife and Russell Tyler's daughter.   Moffie deposition, p. 51–52.   She states that she did not recall seeing the plaintiff visit his mother.   She also said that she did not get the impression that the cross plaintiff, Russell Tyler or Thomas Tyler were trying to influence her.  Id., p. 53.   Thomas Tyler states in his affidavit that he visited her with the same frequency as the cross plaintiff and Russell.   Thomas Tyler affidavit.   In Russell Tyler's affidavit he states that he visited Ruth Tyler several times a week, along with the cross plaintiff and Thomas Tyler, around the time when the Trust was created.   Russell Tyler affidavit.   He states that she was represented by Tatoian, who “she had known for many years and who had no legal, business or family connection to any member of [the] family prior to his representation of [Ruth Tyler].”  Id. As noted above, Tatoian stated in his affidavit that he would never have acted as Ruth Tyler's representative if he believed that she was subject to undue influence.   Tatoian affidavit.   While this may be somewhat self-serving, there is no suggestion that Tatoian in any way benefitted personally from his representative or that his conduct was not professional.   Thus, there is no reason to doubt his assertion.

Plaintiff and Cross Plaintiff

In his affidavit, the cross plaintiff states that he and his wife would take Ruth Tyler to church, the laundromat and the store.   See Bruce Tyler's affidavit.   The plaintiff and cross plaintiff focus on Thomas Tyler's visits to Ruth Tyler, stating that he “had access” to her.   In his deposition, the cross plaintiff states that Thomas Tyler visited Ruth Tyler every morning and gave her a donut.   He asserts that while the plaintiff was too busy to visit their mother frequently, she never complained about the plaintiff's lack of attention.   Bruce Tyler deposition, p. 47;  Bruce Tyler affidavit, p. 11.   In fact, Ms. Moffie testified that Thomas, Bruce and Russell along with other family members visited Ms. Tyler on a daily basis.   Referring to the time before she entered the assisted living facility, the cross plaintiff states that, when she was living at home, she became less able to take care of herself and more susceptible to Thomas Tyler's influence.   Bruce Tyler affidavit, p. 12.   He also states that Thomas Tyler changed Ruth Tyler's doctor, claiming that this further isolated her.   In his affidavit, the cross plaintiff states that Tatoian never visited Ruth Tyler after the Trust was created.   Bruce Tyler affidavit, p. 24.   He states that Thomas Tyler witnessed the acknowledgment of the 1999 Will, and his friend Jean Sullivan witnessed the acknowledgment of the Trust.   Bruce Tyler affidavit, p. 23.

These statements without further objective factual evidence, do not indicate that Ruth Tyler was susceptible to undue influence.   They are merely expressions of cross plaintiff Bruce Tyler's opinion that his mother was susceptible.   Viewing all of the evidence in the light most favorable to the plaintiff and the cross plaintiff, it is undisputed that while Thomas Tyler may have had the disposition and the desire to exert undue influence, in actuality he lacked sufficient control over Ruth Tyler to exercise undue influence.   He had access to her, as did the cross plaintiff, Bruce and Russell, her lawyer, Tatoian, and the medical and support staff.   The plaintiff's lack of access to her is due to his own decision not to visit her.   In his own words, he chose not to visit because he had stress in his own family circumstances due to his divorce and unemployment.   The plaintiff simply has no direct personal knowledge to support his claims and is unable to provide objective credible support for them.   There is no evidence that he was prevented from visiting his mother. ft is undisputed that Ruth Tyler revised the terms of her Will in 1999, established the Trust in 2004, and funded the Trust in 2005 all with the advice of her attorney.   She then passed away in 2010.   At the time she established and funded the trust she was not shut away from society, but living and actively participating in daily activities in the assisted living facility.   Her behaviors, health and attitudes were readily apparent to anyone who chose to visit the facility.   There is not even a hint of dementia or any other condition that would prevent her from exercising her own free will.   The parties seem oblivious to the fact that she raised these five brothers and observed their rivalries and personalities over a lifetime.   The plaintiff and cross plaintiff have provided no evidence that she was under Thomas Tyler's control for all or any of that time.   The defendants have provided evidence that she regularly spoke to the cross plaintiff, numerous family members, the assisted living staff, and others in the community.   The plaintiff and cross plaintiff have never provided evidence that she voiced concerns about the Trust, even though she was living independent of the defendants in an assisted living facility.   Plaintiff complains at least in part that the subject trust was an irrevocable document whose purpose at least in part was to enable Ruth Tyler to access Medicare funding as a resident of the assisted living facility and assure that her needs were met while preserving the assets of her estate in the trust.   This is a decision that is completely independent of the plaintiff's claims.   If the trust complied with the legal requirements, including that it be irrevocable, it is a valid estate planning instrument.   It is not evidence of undue influence on the part of Thomas Tyler.   At best, the facts taken in the light most favorable to the plaintiff indicate that Thomas Tyler persuaded his mother to change her will in 1999 and, five years later, she established a trust consistent with the provisions of that will and which entitled her to payment of her medical bills permitted her to claim.   Neither she nor any of the other brothers chose to tell the plaintiff and cross plaintiff about the 1999 Will and Trust, but that alone simply cannot rise to the level of undue influence on the defendants' part.

Conspiracy

In addition, the plaintiff alleges that the defendants “conspired to keep the Trust and the 1999 Will a secret among themselves ․” “The [elements] of a civil action for conspiracy are:  (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.”  (Internal quotation marks omitted.)  Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635–36, 894 A.2d 240 (2006).   Any action for conspiracy would therefore be dependent on a criminal or unlawful act.   As there is no dispute as to the undue influence allegations, there is also no dispute as to the conspiracy allegations.

Plaintiff's Claim to His Share of the Trust

Finally, the plaintiff alleges that, due to the acts and omissions of the defendants, he “has been wrongfully deprived of his share of the trust estate of the Decedent.”   Neither party has provided any case law or statutes which clarify what this cause of action is.   It appears to allege a cause of action for tortious interference with expectancy of inheritance.   Connecticut appellate courts have not recognized such a cause of action.   The decision by the superior court in DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV 10 6007472 (August 27, 2010, Peck, J.) (50 Conn. L. Rptr. 605, 607), addressing the viability of such a claim stated that “the likely elements of a claim for tortious interference with an expectancy of inheritance are as follows:  1) the existence of an expected inheritance;  2) the defendant's knowledge of the expectancy;  3) tortious conduct by the defendant, such as fraud or undue influence;  and 4) actual damages to the plaintiff resulting from the defendant's tortious conduct.”   The action, if it was permitted in this state, would therefore require proof of undue influence.   As above, the plaintiff and cross plaintiff have failed to establish the existence of a material fact by which a jury could find in their favor as to the allegations of undue influence.   Therefore, the plaintiff is unable to maintain a claim for tortious interference with expectancy of inheritance.

D. Violation of Duty as Trustee

Tatoian argues that the undisputed facts indicate that he had no duty to present financial accountings to the plaintiff and cross plaintiff during Ruth Tyler's lifetime because she was then the only beneficiary entitled to income and he was her attorney.   He further claims that he is not liable for any loss of Trust property or for his decision not to sue the financial advisor because he maintained the same securities he received from Ruth Tyler and did not willfully mismanage the Trust.   The plaintiff and cross plaintiff respond that the magnitude of the loss to the Trust demonstrates that Tatoian acted imprudently.   They further claim that Tatoian's maintenance of the same securities should not protect him from liability because he failed to provide them with accountings which would have alerted them to the lack of diversity of assets and enabled them to order diversification.   Finally, they assert that Tatoian cannot rely on provisions of the Trust because the Trust was the product of undue influence.

General Statutes § 45a–541a, the Prudent Investor Rule, states:  “(a) Except as provided in subsection (b) of this section, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule, as set forth in sections 45a–541 to 45a–541l, inclusive. (b) The prudent investor rule is a default rule that may be expanded, restricted, eliminated or otherwise altered by provisions of the trust.   A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on provisions of the trust.”   In Jackson v. Conland, 178 Conn. 52, 57, 420 A.2d 898 (1979), the court upheld trust provisions which “reveal clearly that it was the settlor's intent to relieve the trustees of the limitations otherwise imposed upon their actions by the prudent investor rule.”

“Trust funds received by executors, trustees, guardians or conservators may be kept invested in the securities received by them, unless it is otherwise ordered by the Court of Probate or unless the instrument under which such trust was created directs that a change of investments shall be made, and the fiduciaries thereof shall not be liable for any loss that may occur by depreciation of such securities.”  General Statutes § 45a–204.   Several early cases applying previous versions of the statute found that a trustee who retains initial investments will not be liable “so long as in the exercise of reasonable prudence they may deem it unnecessary to make any change”;  Beardsley v. Bridgeport Protestant Orphan Asylum, 76 Conn. 560, 564, 57 A. 165 (1904);  Peck v. Searle, 117 Conn. 573, 582–83, 169 A. 602 (1933) (applying substantially identical statutes to the present § 45a–204).⁸  Neither of these cases explicitly states that the court is expanding liability beyond the statutory language.

Due to the paucity of recent Connecticut cases addressing retention of initial investments and the application of § 45a–204, the court will look to the Restatement (Third) of Trusts and to other jurisdictions.   The Restatement (Third) of Trusts § 92 states that “[s]ometimes a statutory or trust provision expressly grants the trustee “absolute,” “sole and uncontrolled,” or similar discretion to retain assets received as a part of the trust estate, or expressly states that the trustee shall not be liable for retaining such assets.   Language of this type does not wholly insulate the trustee from judicial intervention or liability for abuse of discretion ․ Such language, however, confers upon the trustee greater than ordinary latitude in the exercise of judgment with respect to the retention of inception investments, although it does not allow the trustee to act in bad faith or in a state of mind not contemplated by the settlor ․ Nor does it allow the trustee to act recklessly or in disregard of the fiduciary duty of loyalty.”  (Citations omitted.)   3 Restatement (Third) of Trusts § 92, comment (d)(1), p. 408 (2007).  “Except as otherwise provided by the terms of the trust, the trustee is ordinarily under a duty to the beneficiaries to diversify the portfolio.”   3 Restatement (Third) of Trusts § 92, comment (d)(2), p. 408 (2007).  “The terms of the trust, however, may permit the trustee to retain all the investments made by the settlor, or a larger proportion of them than would otherwise be permitted.”  Id., 410.  “It is a question of interpretation whether and to what extent an authorization in the trust instrument to retain property received as a part of the trust estate dispenses with or modifies the trustee's normal duty with respect to diversification.”  Id. See Hoffman v. First Virginia Bank, 220 Va. 834, 838, 263 S.E.3d 402 (1980) (beneficiaries could not sue trustee for failing to diversify where trust instrument stated trustee was “without liability ․ for depreciation in the value of the securities retained in accordance with this authorization”);  Blauvelt v. Citizens Trust Co., 3 N.J. 545, 71 A.2d 184 (1950) (no liability where trust instrument authorized trustee to retain stocks and contained exculpatory language, but exculpatory language carefully scrutinized).

Several provisions of the Trust are of import to this decision.   Section 2, entitled “Payment of Income and Principal During Grantor's Life,” states that “[u]ntil the death of the Grantor, and after paying the expenses of management and investment of the trust estate, the Trustees may pay all or a portion of the net income from the trust to the Grantor adding unused income to principal.   The Trustees are authorized to distribute such income to Grantor or to Grantor's attorney-in-fact under a durable power of attorney.   The Trustees shall be under no obligation to make any such payments of income to the Grantor.   Any undistributed income shall be added to the principal of the trust.   At the Grantor's death, all accrued net income and undistributed net income shall be added to the principal of the trust estate.”   Section 4, entitled “Residuary Estate,” states that “[a]fter provision has been made for the payments and reservations specified in Section 3 above, upon the Grantor's death, the Trust shall terminate and the principal thereof (including any accumulated income) shall be distributed, in substantially equal shares, to the Grantor's children, JOHN E. TYLER, JR., BRUCE D. TYLER, THOMAS J. TYLER, RUSSELL J. TYLER and JAY M. TYLER, share and share alike, per stirpes and not per capita, subject to the direction that any sums due and owing to the Grantor by her sons, BRUCE D. TYLER and JAY M. TYLER, shall be deducted from any share which they are to receive under the terms of this Paragraph 4. In the event that either BRUCE D. TYLER and JAY M. TYLER dispute, in any way, the terms and provisions of this Paragraph 4, the Grantor directs the Trustees to deduct from the share that either is to receive under the terms of this paragraph 4, any and all expenses incurred by the Trustees in defending or resolving said dispute, including Attorneys fees, any and all costs, travel, board and lodging expenses incurred by the Trustees, said determination as to expenses to be made by the Trustees in their sole and unlimited discretion.   The Trustees shall also determine, in their sole and unlimited discretion, the proportionate share of these expenses to be deducted from the share that either BRUCE D. TYLER and/or JAY M. TYLER is to receive from the terms and provisions of this Paragraph 4.”

Section 5(a), entitled “General Management and Investment Powers of Trustees,” states that “[t]he Trustees shall have full power and authority to manage and control the trust estate, to borrow money from any source (including the power to borrow from a Trustee or any affiliate of a Trustee) and to sell, exchange, lease, grant options, rent, mortgage, pledge, assign, transfer or otherwise dispose of or encumber all or any part of the trust estate (for terms beyond the termination of the trust estate or otherwise), upon such terms and conditions as they may see fit.   The Trustees may invest and reinvest, including during Grantor's life by purchase on margin, all or any part of the trust estate in such stocks, common and preferred (including the corporate stock of any corporate Trustee, or any of its affiliates), debentures, shares or participations in any common or mutual fund, interests in any general or limited partnership or limited liability company, bonds, notes, repurchase agreements and deposit accounts of any kind from or in any bank (including any corporate Trustee, or any of its affiliates), savings and loan associations or other financial institution or brokerage firm, stock options and warrants, securities or other property, real or personal, within or without the State of Connecticut, domestic or foreign, whether or not of the class or kind now or hereafter ordinarily approved or held to be lawful for the investment of trust funds, as they may, in their discretion, select.   The Trustees may make and change such investments from time to time according to their discretion;  and they may continue to hold any stocks, securities or other property received by them hereunder, without any duty of diversification.”   Section 5(l), entitled “Exculpation of Individual Trustees,” states that “[n]o individual Trustee shall be liable for any mistake or error of judgment, or for any action taken or omitted, either by the Trustee or by any agent or attorney employed by the Trustee, or for any loss or depreciation in the value of the trust, except in the case of willful misconduct.”

Section 8(h), entitled “Trustee Accountings,” states that “[t]he Trustee shall render an account at least once each twelve months to each adult beneficiary and to the natural or legal guardians, if any, of each minor or otherwise legally disabled beneficiary then receiving or entitled to receive income hereunder.   The account shall show the receipts, disbursements and distributions of principal and income since the last accounting, and the assets on hand.   If no objection shall be made to any account so rendered within ninety (90) days after a copy thereof has been deposited in the mail addressed to any person entitled thereto, as hereinabove provided, such beneficiary shall be conclusively presumed to have approved or assented to all actions reflected in the account so rendered.   Notwithstanding any statute or law to the contrary, no Trustee shall be required to qualify or to file inventories or accountings in any probate or other court.”

As a threshold issue, the plaintiff and cross plaintiff's allegations in their complaints and statements in depositions belie their claim that the Trust provisions are barred by the plaintiff's undue influence claim.   The complaint attacks the distribution of the Trust and seeks reformation of the Trust, but he does not challenge the trust itself or portions of the Trust related to the trustee's duties.   In the plaintiff's deposition he states that he is only contesting “the part of the trust that distributes the money.”   Jay Tyler deposition, p. 40–41.   The cross plaintiff is not contesting the Trust, but merely contesting Tatoian's actions as trustee.

Regarding Tatoian's failure to produce accountings, the court finds that Tatoian was not required to furnish accountings to anyone other than Ruth Tyler prior to Ruth Tyler's death.   The Trust states that beneficiaries entitled to receive income are also entitled to twice yearly accountings.   It also states that the Tyler brothers are entitled to receive income from the Trust only upon Ruth Tyler's death.   The plaintiff was not entitled to any accountings because his loans from Ruth Tyler exceeded his share of the Trust;  therefore he was never entitled to receive income.   The cross plaintiff was only entitled to accountings after Ruth Tyler's death.   Therefore the motion for summary judgment should be granted as to the third count of the complaint, alleging negligent failure to furnish accountings, and the sixth count of the complaint and third count of the cross complaint alleging deprivation of the right to seek a court order under § 45a–204 because there were no accountings prior to Ruth Tyler's death.

There are no disputed facts as to whether Tatoian diversified the Trust.   In his affidavit in support of the motion for summary judgment, Tatoian states that “[f]rom the date that the Trust was funded until the date of the liquidation of the Trust Account I kept invested the securities received by me as the Trust corpus.   I did not buy, sell or otherwise trade any securities or holdings and all interest, dividends and other earnings or distributions were either reinvested in the same security issuing the distribution or retained in the Trust Account.”   The plaintiff and cross plaintiff have not refuted this.   The only question, therefore, is whether, as a matter of law, the Trust provisions or General Statutes § 45a–204 by their express terms insulate Tatoian from liability due to losses the Trust sustained.

Under the plain language of § 45a–204 Tatoian may not be held liable so long as he maintains the securities which were initially invested and is not ordered to diversify either by the Trust document or by the Probate Court.   The previous Connecticut cases applying this rule suggest that there may have been some limitation to the exculpation provided by previous versions of this section, but absent a specific statement by a higher court modifying the clear statutory language, the court will interpret the statement that “fiduciaries thereof shall not be liable” to mean that they shall not be liable for failure to meet the standards explicitly set by the General Statutes, in this case, for failing to meet the standard of a prudent investor, or for failure to diversify.   Therefore, under § 45a–204, Tatoian is not liable for maintaining the securities which he initially received.

Moreover, the Trust provides in its own terms that Tatoian 1) may maintain the initially invested securities, 2) had no duty to diversify and 3) would only liable for willful misconduct.   These three provisions further insulate him from liability for the decline in the stocks during 2009 and 2010.⁹  Each provision reinforces the other and demonstrates an intent that Tatoian could maintain the securities as they were without subjecting himself to any potential liability.

Under the clear language of § 45a–204 and the language of the Trust, the court grants the motion for summary judgment as to the fourth count of the complaint and the first count of the cross complaint, alleging violations of the prudent investor rule, and as to the fifth count of the complaint and the second count of the cross complaint, alleging that Tatoian failed to diversify the Trust's assets.

The final issue is whether Tatoian is liable for his decision not to sue the investment advisor.  General Statutes § 45a–541i states:  “(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances.   The trustee shall exercise reasonable care, skill and caution in:  (1) Selecting an agent;  (2) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust;  and (3) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.

“(b) In performing a delegated function, an agent owes a duty to the trustee and to the trust to exercise reasonable care to comply with the scope and terms of the delegation and to exercise the delegated function with reasonable care, skill and caution.   An attempted exoneration of the agent from liability for failure to meet such a duty is contrary to public policy and void.

“(c) A trustee who complies with the requirements of subsection (a) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.

“(d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state and can be held liable by the courts of this state for any breach of duty arising out of the delegation agreement or the terms of sections 45a–541 to 45a–541l, inclusive.”

This statute states that an exoneration of the agent shall be void.   Therefore even though he is an agent of Tatoian and a fiduciary who would otherwise be covered by § 45a–204 Section 5(l) of the Trust, he is still potentially subject to liability as a result of the duty imposed by the above statute.   Tatoian has stated that any suit against the investment advisor would be futile, but it is not clear as a matter of law that he has sufficient basis for making this determination.

CONCLUSION

The court therefore grants the motion for summary judgment as to all counts of both the third amended complaint and the fourth amended cross complaint, except for the seventh count of the third amended complaint and the fourth count of the fourth amended cross complaint.   There is no issue of material fact for a jury to determine as to whether Ruth Tyler was in fact susceptible to undue influence, whether Thomas Tyler had sufficient opportunity to exert undue influence on Ruth Tyler or whether he in fact, did so.   There is therefore no material fact for the jury to consider as to the first, second and fourth elements required to establish a claim of undue influence under the law of this state.   Therefore, the defendants are entitled to judgment as a matter of law as to counts one and two of the third amended complaint.  General Statutes § 45a–204 and the trust provisions bar the actions against Tatoian for failure to provide accountings to the plaintiff and cross plaintiff and for alleged mismanagement of the 2004 Trust.   Therefore, the court grants summary judgment as to counts three, four, five, and six of the third amended complaint and as to counts one, two and three of the fourth amended cross complaint.   Because Tatoian may still be liable for his decision not to bring an action against the investment advisor, the court denies the motion for summary judgment on the seventh count of the third amended complaint and the fourth count of the fourth amended cross complaint.

SO ORDERED.

SOMMER, J.

FOOTNOTES

FN1. While technically Bruce Tyler is a defendant, he does not join with the other defendants in their pleadings, therefore he is not included with the other defendants..  FN1. While technically Bruce Tyler is a defendant, he does not join with the other defendants in their pleadings, therefore he is not included with the other defendants.

FN2. The complaint and cross complaint allege two periods, January 1, 2008 to December 1, 2008 and January 1, 2008 to December 1, 2007.   The court infers the date range above..  FN2. The complaint and cross complaint allege two periods, January 1, 2008 to December 1, 2008 and January 1, 2008 to December 1, 2007.   The court infers the date range above.

FN3. Bruce Tyler is listed as a defendant in the heading to the first count, but no wrongdoing by him is alleged in this or any subsequent count..  FN3. Bruce Tyler is listed as a defendant in the heading to the first count, but no wrongdoing by him is alleged in this or any subsequent count.

FN4. The court infers that this is intended to refer to section 8h, which references accountings, rather than 8b, which references resignation of Trustees..  FN4. The court infers that this is intended to refer to section 8h, which references accountings, rather than 8b, which references resignation of Trustees.

FN5. The defendants also filed a motion for permission to file a motion for summary judgment (# 254) on April 15, 2013.   The plaintiff and cross plaintiff objected to this motion (# 260) on April 17, 2013, stating that the defendants were required pursuant to the March 11, 2013, scheduling order to submit dispositive motions “by April 15, 2013,” meaning before that date.   The defendant responded that “by” meant no later than (# 261).   The cross plaintiff requested an extension of time to respond to the motion for summary judgment (# 262), which the court denied (# 262.1) because permission to file a motion for summary judgment had not yet been granted.   This court finds that the plain meaning of “by” and the court's practice indicates that the defendants were free to file their dispositive motions by the end of April 15, 2013.   In addition, the plaintiff and cross plaintiff had sufficient time to respond to the defendants' motion between when it was filed on April 15, 2013 and when this court heard it at short calendar on June 3, 2013 and they did not object to the court's taking of the motion for summary judgment on the papers at the June 3, 2013 short calendar..  FN5. The defendants also filed a motion for permission to file a motion for summary judgment (# 254) on April 15, 2013.   The plaintiff and cross plaintiff objected to this motion (# 260) on April 17, 2013, stating that the defendants were required pursuant to the March 11, 2013, scheduling order to submit dispositive motions “by April 15, 2013,” meaning before that date.   The defendant responded that “by” meant no later than (# 261).   The cross plaintiff requested an extension of time to respond to the motion for summary judgment (# 262), which the court denied (# 262.1) because permission to file a motion for summary judgment had not yet been granted.   This court finds that the plain meaning of “by” and the court's practice indicates that the defendants were free to file their dispositive motions by the end of April 15, 2013.   In addition, the plaintiff and cross plaintiff had sufficient time to respond to the defendants' motion between when it was filed on April 15, 2013 and when this court heard it at short calendar on June 3, 2013 and they did not object to the court's taking of the motion for summary judgment on the papers at the June 3, 2013 short calendar.

FN6. While the cross plaintiff is not asserting any legal claims of undue influence, his deposition and affidavit testimony indicate that he supports the plaintiff's contention of undue influence, and he and the plaintiff submitted their opposition to the motion for summary judgment jointly.   The court will consider this in evaluating his statements, even though they do not have the weight of a party admission..  FN6. While the cross plaintiff is not asserting any legal claims of undue influence, his deposition and affidavit testimony indicate that he supports the plaintiff's contention of undue influence, and he and the plaintiff submitted their opposition to the motion for summary judgment jointly.   The court will consider this in evaluating his statements, even though they do not have the weight of a party admission.

FN7. The court will construe the answers to interrogatories as plaintiff's affidavit, despite its lack of a signature or other identifying markings..  FN7. The court will construe the answers to interrogatories as plaintiff's affidavit, despite its lack of a signature or other identifying markings.

FN8. General Statutes § 255 (1902 Rev.) was identical to the present statute, except that it stated “they shall not be liable for any loss ․” rather than “the fiduciaries thereof shall not be liable for any loss ․” General Statutes § 4837 (1930 Rev.) was also identical, except that it stated “trustees shall not be liable for any loss ․” rather than “the fiduciaries thereof shall not be liable for any loss ․”.  FN8. General Statutes § 255 (1902 Rev.) was identical to the present statute, except that it stated “they shall not be liable for any loss ․” rather than “the fiduciaries thereof shall not be liable for any loss ․” General Statutes § 4837 (1930 Rev.) was also identical, except that it stated “trustees shall not be liable for any loss ․” rather than “the fiduciaries thereof shall not be liable for any loss ․”

FN9. The cross plaintiff has moved to strike the ninth special defense, which refers to one of these sections of the trust, section 5(l).  The third special defense states in general terms that the Trust waives any statutory obligation relied on by the plaintiff while the fourth special defense specifically provides that Tatoian is not liable by virtue of section 5(l), therefore the ninth special defense is not necessary for this opinion..  FN9. The cross plaintiff has moved to strike the ninth special defense, which refers to one of these sections of the trust, section 5(l).  The third special defense states in general terms that the Trust waives any statutory obligation relied on by the plaintiff while the fourth special defense specifically provides that Tatoian is not liable by virtue of section 5(l), therefore the ninth special defense is not necessary for this opinion.

Sommer, Mary E., J.