Steven Embersits v. Lucinda Embersits, Executrix of the Estate of John Embersits (2014)

SUPPLEMENT TO NOVEMBER 7, 2013 MEMORANDUM OF DECISION

Footnote ¹

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. The court wishes to add by way of this footnote what it decided in this case in a memorandum dated November 7, 2013.   The footnote will be at the end of the decision.The complaint indicates that on October 20, 2009 the Probate Court for Madison admitted a will dated June 24, 1982 to probate.   The plaintiff filed a petition in Probate court in which he “sought permission to conduct discovery, and if such discovery revealed the existence of a later will, the revocation, annulment or setting aside of the October 20, 2009 order admitting the June 24, 1982 will to probate (par. 34 of Complaint).   The complaint refers to the various ways his right to discovery was improperly limited in Probate Court.Paragraph 37 of the plaintiff's complaint states that “on December 30, 2011 the Court of Probate issued an order on the plaintiff's petition which upheld the October 20, 2009 order admitting the June 24, 1982 will to Probate and found that no evidence was presented regarding the existence of another will” (copy of order was attached to the complaint).   The complaint then states:  “Wherefore pursuant to General Statutes § 45a–186, the plaintiff Steven J. Embersits hereby appeals from the order and decree of the Court of Probate for the Madison–Guilford District, seeks a trial de novo on all matters decided by the Court of Probate, and prays that this court will grant such relief as is proper.”The appeal then by its very language sought that liberal scope of discovery provided for in probate appeals in Superior Court—a right to which is established by the Practice Book and not predicated on the need to hold a trial de novo to establish the right.   The trial de novo—the plaintiff's second request—had logically to be a trial which would determine the plaintiff's right to have the admission of the 1982 will revoked, a request denied by the Probate Court.In Superior Court a scheduling order was established setting forth dates in which discovery must be completed.   The plaintiff proceeded to obtain discovery or not as he decided—discovery rules, which albeit being liberal, contemplate an exercise of the right within reasonable time limits and resort to the court if there is some complaint that the liberal discovery is being thwarted.The plaintiff's complaint contemplated a trial de novo whose purpose had to be to discover whether a new, post–1982 will had been prepared by his deceased father.   That would be the only basis to conclude, if such discovery revealed the existence of such later will, that the October 20, 2009 order admitting the 1982 will to probate be revoked.   In fact the plaintiff agreed to a trial date.After the discovery process in Superior Court was completed this court held the trial de novo and this court concluded that on the merits the appeal should be dismissed which requested revocation of the order admitting the 1982 will to probate because no evidence of a later will was found and no such will was presented to this court.   The court, thus, denied the request to annul or revoke the acceptance of the 1982 will to Probate as a result of the de novo trial..  FN1. The court wishes to add by way of this footnote what it decided in this case in a memorandum dated November 7, 2013.   The footnote will be at the end of the decision.The complaint indicates that on October 20, 2009 the Probate Court for Madison admitted a will dated June 24, 1982 to probate.   The plaintiff filed a petition in Probate court in which he “sought permission to conduct discovery, and if such discovery revealed the existence of a later will, the revocation, annulment or setting aside of the October 20, 2009 order admitting the June 24, 1982 will to probate (par. 34 of Complaint).   The complaint refers to the various ways his right to discovery was improperly limited in Probate Court.Paragraph 37 of the plaintiff's complaint states that “on December 30, 2011 the Court of Probate issued an order on the plaintiff's petition which upheld the October 20, 2009 order admitting the June 24, 1982 will to Probate and found that no evidence was presented regarding the existence of another will” (copy of order was attached to the complaint).   The complaint then states:  “Wherefore pursuant to General Statutes § 45a–186, the plaintiff Steven J. Embersits hereby appeals from the order and decree of the Court of Probate for the Madison–Guilford District, seeks a trial de novo on all matters decided by the Court of Probate, and prays that this court will grant such relief as is proper.”The appeal then by its very language sought that liberal scope of discovery provided for in probate appeals in Superior Court—a right to which is established by the Practice Book and not predicated on the need to hold a trial de novo to establish the right.   The trial de novo—the plaintiff's second request—had logically to be a trial which would determine the plaintiff's right to have the admission of the 1982 will revoked, a request denied by the Probate Court.In Superior Court a scheduling order was established setting forth dates in which discovery must be completed.   The plaintiff proceeded to obtain discovery or not as he decided—discovery rules, which albeit being liberal, contemplate an exercise of the right within reasonable time limits and resort to the court if there is some complaint that the liberal discovery is being thwarted.The plaintiff's complaint contemplated a trial de novo whose purpose had to be to discover whether a new, post–1982 will had been prepared by his deceased father.   That would be the only basis to conclude, if such discovery revealed the existence of such later will, that the October 20, 2009 order admitting the 1982 will to probate be revoked.   In fact the plaintiff agreed to a trial date.After the discovery process in Superior Court was completed this court held the trial de novo and this court concluded that on the merits the appeal should be dismissed which requested revocation of the order admitting the 1982 will to probate because no evidence of a later will was found and no such will was presented to this court.   The court, thus, denied the request to annul or revoke the acceptance of the 1982 will to Probate as a result of the de novo trial.

Corradino, Thomas J., J.T.R.