Kathleen Dix v. Dena Dix et al. (2013)

MEMORANDUM OF DECISION

Dennis Dix executed a will on February 19, 2001, which was admitted to probate by the probate court for the District of Newington on March 22, 2011.   The probate court construed the dispositive provisions of that will in a way that effectively disinherits the plaintiff Kathleen Dix, the surviving spouse of Dennis Dix. The effect of the probate court's interpretation of the will is that all of Dennis Dix's estate will devolve to his children, the defendants Dena and Thomas Dix (collectively, defendants).¹

This is Mrs. Dix's appeal from the probate court's decree, pursuant to General Statutes § 45a–186.   While her appeal raises numerous issues, this court need only address itself to a pleading dispute that has arisen.   Mrs. Dix has moved to strike the special defense asserted by the defendants in their amended answer and special defense dated August 16, 2013.   See # 110.   The special defense reads as follows:  “Appellant/Plaintiff failed to timely file her claim for spousal election within the time required by Connecticut General Statutes Section 45a–436.”

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).   Special defenses are proper subjects of a motion to strike.   Practice Book § 10–39.   In ruling on a motion to strike a special defense, the trial court is “to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).

Practice Book § 10–50 states, in relevant part, “[f]acts which are consistent with such statements [by the plaintiff in her complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.”   The Supreme Court has interpreted this language to mean that “a special defense [pleads] facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.”  Grant v. Bassman, 221 Conn. 465, 472–73, 604 A.2d 814 (1992).

The complaint is a thoroughgoing assault on virtually every aspect of the probate court's construction of the will.   It seeks in so many words that the orders and decrees of the probate court be declared “null and void.”   Prayer for Relief, ¶ a.   It asks that the clauses of the will distributing Dennis Dix's assets and possessions and the residuum of his estate be declared “invalid,” and that his estate be distributed pursuant to the intestacy provision of the general statutes;  General Statutes § 45a–437;  not the spousal election provision, General Statutes § 45a–436.   See Id., ¶¶ b and f. In the alternative, the complaint seeks to have this court construe the will in such a way that Dennis Dix's estate will be distributed as if he had died intestate.  Id., ¶ d.   Further, it asks that the surviving spouse clause of the will be construed so as to give Mrs. Dix her share as if her husband had died intestate.  Id., ¶ e.

As an alternative to this last request, the complaint proposes distribution to Mrs. Dix under the spousal election statute.   And, it attacks that statute as unconstitutional as the probate court applied it to the facts of this case.   Id., ¶ g.

This analysis makes it clear that the special defense is not consistent with the major thrust of the complaint.   Mrs. Dix at least implicitly acknowledges in her complaint that she did not file the required notice to take her statutory share within the 150–day period set by § 45a–436(c).  If the defendants had requested that Mrs. Dix revise her complaint to set forth her claims in individual counts, the special defense they have asserted might have been properly pled as to a count seeking distribution of the estate under § 45a–436, but that is not the state of the pleadings.   As the pleadings stand now, even if the defendants were to prove the allegations of their special defense, they would not have proven that the plaintiff has no cause of action because that cause of action is far broader than a claim to take under the spousal election statute.

Accordingly, because the special defense does not show that the plaintiff has no cause of action, the motion to strike it is GRANTED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. Briefly stated, Mr. Dix's will left “the majority of my possessions” to Dena and Thomas Dix, except for $5.00, which he left to Mrs. Dix, whom he claimed in the will had “abandoned” him.   The probate court interpreted “the majority of my possessions” to mean all of Mr. Dix's possessions except for those specifically bequeathed in the will..  FN1. Briefly stated, Mr. Dix's will left “the majority of my possessions” to Dena and Thomas Dix, except for $5.00, which he left to Mrs. Dix, whom he claimed in the will had “abandoned” him.   The probate court interpreted “the majority of my possessions” to mean all of Mr. Dix's possessions except for those specifically bequeathed in the will.

Shortall, Joseph M., J.T.R.