William F. Vechiola v. Frank T. Fasanella (2014)

MEMORANDUM OF DECISION

The two-count fourth revised complaint in this action alleges Interference with Expectancy of Inheritance and Breach of Fiduciary Duty. The plaintiff William F. Vechiola's claims against the defendant, Frank T. Fasanella, are based upon the defendant's use of a power of attorney.   The defendant raised special defenses of lack of jurisdiction of this court and that the plaintiff defrauded the heirs of the deceased, Marie Milano, out of a substantial portion of their inheritance.   This action was tried to the court over the course of nine days between March 27, 2013 and June 27, 2013.   Subsequently, the parties filed trial briefs on September 10, 2013 and reply briefs on September 24, 2013.

FINDINGS

Based on the testimony and exhibits introduced at trial this court makes the following findings.

The plaintiff, William F. Vechiola (Vechiola) is a resident of Trumbull, Connecticut, and the nephew, by marriage, of the decedent, Marie E. Milano (Marie).   The defendant, Frank T. Fasanella, is a resident of Norwalk, Connecticut and a nephew of Marie's.   Marie Milano resided on Sidney Street in Bridgeport, Connecticut and then on Horseshoe Drive in Trumbull, Connecticut.   Marie had been married to a Fred Milano (Fred) who died on January 17, 1998.   Marion Vechiola was Fred's sister.   Marion Vechiola, the plaintiff's mother, predeceased Marie.   Marie's brother was James F. Fasanella, the defendant's father.

Fred and Marie Milano never had children of their own.   Marie had siblings James F. Fasanella, Frank D. Fasanella, Matthew Fasanella and Clara Faulkner.   At the time of her death on July 10, 2010, Marie was survived by three siblings (James F. and Frank D. Fasanella and Clara Faulkner), nine nieces and nephews by blood and one nephew by marriage, the plaintiff.

The plaintiff had a very close personal relationship with Fred and Marie Milano from the time he was very young.   The plaintiff frequently would see them and did many chores for them.   In 1980 Fred and Marie gave the plaintiff a cemetery plot adjacent to their own.   The plaintiff and his wife, Karen Moyher, played cards with Fred and Marie frequently.   Fred purchased life insurance policies for the plaintiff and Karen Moyher.   After Fred passed away the plaintiff increased his attention to Marie including cooking for her, Sunday visits and meals, preparing, storing and freezing food for Marie's weekly needs, and shopping for her.   After Fred's death on January 17, 1998, the plaintiff and his wife continued to socialize with Marie, often having her at their home for dinners and social occasions.   The plaintiff was significantly involved in the care and well being of Marie, had a good relationship with her, and she trusted him.   She sent the plaintiff many cards and notes expressing her love and affection for him and his wife.   Marie also occasionally made monetary gifts to the plaintiff.

Marie had good relationships with members of her family including her brother James Fasanella, her sister, Clara Faulkner and her brother-in-law, William Faulkner.   Marie also socialized with other members of the Fasanella family.   In 2003, 2004, and 2005, Marie spent some holidays at the defendant's home.   Up until 1998, the Fasanella family had gathered at the Horseshoe Drive home.   The defendant's relationship with Marie also was close.   Between 1998 and May of 2005, the defendant saw Marie once or twice a month.

Until the time of his death in January 1998, Fred had been in control of their financial matters although Marie participated.   After Fred's death, Marie began handling her own financial affairs.   She also began to change beneficiaries on life insurance policies.   These various insurance policies and annuities were purchased through Brian Smith, an insurance agent for New York Life. Smith had been a close personal friend of the Milanos since 1986.   Smith doesn't recall Marie having eye trouble or trouble reading in 2005.   Marie always was able to converse with Smith.

Before Fred's death, several life insurance policies were sold to Fred and Marie insuring Marie's life, with Marie as the owner.   As the owner of these policies Marie controlled who was the beneficiary, who could get loans and who could direct the proceeds.   Marie was present when Fred discussed the nature and extent of his financial affairs with Smith.   Subsequent to Fred's death, Marie made all her financial decisions and was private about them.   Marie had been a bookkeeper at Bridgeport Brass for many years and claimed that she ran the credit union there.

Because of Fred's death on January 17, 1998, Marie changed the beneficiaries on each life insurance policy from herself to others.   Brian Smith had suggested that beneficiary changes were necessary because Fred had died, but he did not suggest who the beneficiaries should be.

Marie also began to purchase annuity contracts from New York Life through Brian Smith.   Smith explained the nature of an annuity to Marie and explained how an annuity would pass to others upon her death.   Smith explained that an annuity would pass directly to the beneficiary rather than going through probate.   Marie provided the information for taking out each annuity and the information regarding the beneficiaries of each annuity and life insurance policy.   Smith had recommended that it would be better to have named beneficiaries for the annuities.   Smith never suggested any particular beneficiary to Marie for the life insurance policies and the annuities.   Marie purchased the following annuities:

June 14, 2001:  N.Y. Life Annuity;  ending in –1891 original beneficiaries—Matthew and Gary Fasanella and Carol Masciola;

June 26, 2002:  N.Y. Life Annuity;  ending in –7145 original beneficiary—Estate of Marie Milano;

July 20, 2005:  N.Y. Life Annuity;  ending in –0046 beneficiary—Plaintiff;

August 24, 2005:  N.Y. Life Annuity;  ending in –0491 beneficiary—Estate of Marie Milano.

Marie Milano also utilized Totten Trusts, also known as a “poor man's will,” as part of her financial Estate Planning.   On November 30, 2000, Marie opened an account at Wachovia Bank ending in –9965 in her name, in Trust for the plaintiff.   On March 21, 2002, Marie opened an account at Webster Bank ending in –8765 in her name in Trust for the plaintiff.   Marie also held a savings certificate account at Bank of America ending in –7658 in her name in Trust for her brother James F. Fasanella.   On January 9, 2003, Marie opened an account at Wachovia Bank ending in –6520 in her name in Trust for the plaintiff.   On January 31, 2003, Marie opened an account at Webster Bank ending in –3559 in her name in Trust for her sister, Clara Faulkner.   On January 31, 2003, Marie opened an account at Webster Bank ending in –3612 in her name in Trust for her brother Frank D. Fasanella.   On June 19, 2003, Marie opened an account at A.X.A. Equitable naming her brother Frank D. Fasanella as beneficiary.

After Marie Milano's medical condition began to worsen, she opened the following accounts.   In September 2005, Marie opened an account at T.D. Bank North ending in –7978 as a joint checking account with plaintiff.   In September of 2005, Marie opened another account at T.D. Bank North ending in –9440 as a joint savings account with the plaintiff.   On September 22, 2005, Marie opened an account at Bank of America ending in –0546 as a joint checking account with the plaintiff.   On September 23, 2005, Marie opened an account at Webster Bank ending in –7825 in her name in Trust for the plaintiff.

On September 26, 2005, Marie opened an account at Wachovia Bank ending in –3056 in her name in Trust for the plaintiff.   Also on September 26, 2005, Marie opened an account at Peoples Securities ending in –0206 as a joint account with the plaintiff.   On September 26, 2005, Marie opened an account at Peoples United Bank ending in –0120, in her name in Trust for the plaintiff.   On September 26, 2005, Marie opened an account at Peoples United Bank ending in –0127 in her name in Trust for the plaintiff.   On September 29, 2005, Marie opened an account at Peoples United Bank ending in –1078, as a joint account with the plaintiff.   On October 11, 2005, Marie opened an account at Peoples United Bank ending in –0163 in her name in Trust for the plaintiff.   On October 11, 2005, Marie opened an account at Peoples United Bank ending in –0166 in her name in Trust for the plaintiff.   The plaintiff drove Marie to the bank on these dates in September and October 2005.   On June 21, 2010, when Marie was incapacitated, the defendant closed the four Peoples accounts ending in –0120, –0127, –0163 and –0166 which Marie had opened in September and October 2005.

On September 9, 2004, Marie executed a Last Will and Testament.   On the same date, Marie issued a Power of Attorney to the defendant which remained in effect until her death.   The defendant was named executor of Marie's estate under the terms of the Will. Marie's Will left her residuary estate equally to thirteen people.

Marie's medical condition began to deteriorate in the spring of 2005 when the defendant noticed that she was shuffling her papers around and seemed to be confused.   The defendant recommended that Marie hire a person to keep track of her financial affairs, namely Andrea Federico.   Marie hired Federico who began work with Marie on her books in May of 2005.   In May 2005, Marie was having trouble with her vision.   Federico met with Marie one time in May 2005, prior to beginning her work and thereafter saw Marie once per week between May of 2005 and December of 2005.   Marie had a little difficulty with the differences between debits and credits as used by Federico, but directed the work done for her by Federico.   Any questions which Federico had concerning the accounts were answered by Marie to Federico's satisfaction.   From May 2005 until Marie suffered a T.I.A. type stroke in December of 2005, Federico worked and observed Marie's condition.   Federico found that Marie was hard of hearing, had trouble seeing, and her ability to walk was shaky.   Marie was 90 years old and frail but able to talk about her bills and related matters.   Marie's condition gradually worsened during the time she and Federico were together.

Anthony Musto, M.D. an ophthalmologist, began treating Marie in July of 1993 and continued to treat her through October of 2006.   Dr. Musto treated Marie on November 2, 2005 and found that there was nothing about the way she presented herself any different than the way she had presented herself in the twelve years prior in which he had treated her.   He noted that her mental status in November 2005 was normal.   Dr. Musto noted that Marie was well developed, well nourished, alert and oriented, and mood appropriate.   Dr. Musto made the same notations for the visit with Marie on December 2, 2005.   Dr. Musto believed that Marie could do line reading if the text was big enough in November and December in 2005.   Dr. Musto believed that Marie could read the large type on the People's Accounts opened in September and October of 2005, including the account number, the type of account, the title of the account including her name and the plaintiff's name and that the plaintiff was named as Totten Trust Beneficiary.   Likewise, in Dr. Musto's opinion, Marie Milano could read the print on the deposit confirmations for the People's bank transactions.   Dr. Musto believed that Marie could read the bold letters on the Peoples bank documents relatively easily and that she could see her own signature on those documents.

Pogos Voskanian, M.D., a psychiatrist and forensic psychiatrist from Huntington Valley, PA testified that Marie was an individual subject to undue influence.   Dr. Voskanian based his opinion on a review of some of the records and documents involved here.   Eric Frazer, Psych.   D., of New Haven, Connecticut, reviewed all of the exhibits and all transcripts.   Dr. Frazer, a clinical and forensic psychologist, opined that the record and transcripts did not lead to a finding that Marie was unduly influenced.   Dr. Frazer found no evidence of a weakened intellect.

Other facts and background will be supplied as necessary.

DISCUSSION

The defendant's trial brief questions this court's subject matter jurisdiction in this matter.   This issue was the subject of a motion for summary judgment decided by Judge Radcliffe on February 7, 2013 [55 Conn. L. Rptr. 525].   This court adopts the opinion of Judge Radcliffe as the law of this case.   This court does have subject matter jurisdiction.

The first count of the operative complaint dated April 3, 2013, charges interference with expectation of inheritance.   The plaintiff alleges a close and personal relationship of love and trust between himself and Fred and Marie Milano.   The plaintiff alleges and proved that as part of her estate planning, Marie provided for many relatives after her death (including brothers and sister, nieces and nephews) through the purchase of annuities, life insurance, joint accounts and Totten Trusts.

Totten Trusts transmit a legal interest in the funds on deposit to a beneficiary when the depositor dies.  In re Totten, 179 N.Y. 112, 125–26, 71 N.E. 748 (1904).   Connecticut law provides for the creation of such a deposit trust account, also known as a “poor man's will,” under Connecticut General Statutes § 36a–296 which provides as follows:

Sec. 36a–296. (Formerly Sec. 36–110).   Deposits or share accounts in trust. (a)(1) No bank, Connecticut credit union, or federal credit union shall establish any deposit or share account in which deposits or shares are to be held by one natural person in trust for another natural person unless the depositor or share account holder provides the bank, Connecticut credit union, or federal credit union with the name and a residential address for the beneficiary, upon establishing the deposit or share account or thereafter at the request of the bank, Connecticut credit union, or federal credit union.   The depositor or share account holder may also provide the bank, Connecticut credit union, or federal credit union with a writing signed by the depositor or share account holder specifying the terms of the trust under which such deposit or share account is to be held.   Unless such writing specifies to the contrary, it shall be conclusively presumed that the depositor or share account holder intends to create a trust of all funds credited to the deposit or share account from time to time upon the following terms:  (A) The depositor or share account holder during the depositor's or share account holder's life may withdraw, or authorize charges against, such funds;  (B) if the depositor or share account holder survives the named beneficiary, the named beneficiary's death shall terminate the trust and title to the deposit or share account shall thereupon vest in the depositor or share account holder free and clear of the trust;  (C) if the named beneficiary survives the depositor or share account holder, the depositor's or share account holder's death shall terminate the trust and title to the deposit account or share account, subject to any membership restrictions for Connecticut credit unions or federal credit unions, shall thereupon vest in the named beneficiary free and clear of the trust.

A Totten Trust allows the creator and the depositor of such an account to exercise complete and exclusive control of the account while alive.   Upon the depositor's death, title to the funds remaining in the account vests immediately in the beneficiary.  Manulik v. Devitt, 176 Conn. 663, 668 (1979).   Thus, the funds on deposit constitute a tentative trust, revokable at will during the life of the depositor.  Salvio v. Salvio, 186 Conn. 311, 322–23 (1982).

Both parties here acknowledge that the Connecticut Supreme Court and the Connecticut Appellate Court have not recognized interference with inheritance as a cause of action.   Connecticut Superior Court decisions and the Restatement of Torts, however, do recognize it as a valid cause of action.  Depasquale v. Hennessey, 2010 Conn.Super. Court LEXIS 2202 [50 Conn. L. Rptr. 605] (2010) (Peck, J.);   4 Restatement (Second) Torts S. 744(B) (1979).   The Restatement of Torts, S. 774(B) provides:

One who by fraud, duress or other tortious means, intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Thus, the elements of this cause of action are:  1) an expected inheritance or gift;  2) knowledge by the defendant of the expectancy;  3) tortious conduct by the defendant;  and 4) actual damage suffered by the plaintiff as a result.   Depasquale v. Hennessey, supra.

Here, the plaintiff knew of the existence of the four Totten Trust accounts at Peoples United Bank because Marie had told him and the plaintiff had a reasonable expectation of inheriting these funds.   The defendant knew of the nature of the Peoples Totten Trust accounts in June and closed them on June 21, 2010.   When the defendant closed the four Peoples Totten Trust accounts and placed the money in an account under Marie's name alone, he knew that he and his family would inherit the funds.   In Marie's last Will and Testament, all thirteen persons named as residuary remainder men have an equal share in the residuary estate, including the defendant.   As a result of the defendant's action, the defendant, his father and brothers as well as the plaintiff and the other remainder men each would receive approximately $32,835.20.   Thus, the plaintiff would receive $32,835.20 instead of approximately $427,908.49.   The court will find that the plaintiff suffered actual damage as a result of the defendant's tortious conduct.

The court will find from Marie's conduct in establishing and changing various accounts and insurance policies over the years, it was never Marie's intent to provide for the thirteen remainder men named in her will equally, but that Marie intended the thirteen to share equally in the residue of her estate.

Marie opened four Totten Trust accounts at Peoples United Bank in September and October of 2005 in trust for the plaintiff.   Those accounts had account numbers ending –0120;  –0127;  –0163;  and –0166.   Marie Milano had opened other trust accounts in the past.   In opening these accounts, Marie is conclusively presumed to have intended that the monies be received by the named beneficiary at the time of her death.  Dalia v. Lawrence, supra, 226 Conn. at 66.   The court will find that the defendant acted contrary to Marie's wishes and desires in closing those accounts, despite having a power of attorney to do so.   The court will find that this conduct was tortious.

The defendant in his trial brief argues that the burden of proof on the plaintiff is by clear and convincing evidence.   However, the defendant's contention is unsupported by the pleadings and the evidence.   The defendant contends that as a result of the plaintiff's relationship with Marie, the plaintiff was a fiduciary for her.   Nothing in the defendant's special defenses alleges that the plaintiff was a fiduciary for Marie.   This court has found no controlling authority to increase the burden of proof on a plaintiff in a factual situation similar to this.

Moreover, the facts and the evidence submitted support a finding that the plaintiff at all times acted in Marie's best interests.   He paid particular attention to her personal and social needs.   He helped Marie cash Totten Trust accounts held for him when she needed cash and recommended, with the defendant, that her Sidney Street home be sold when it was not being used.   The plaintiff closed a joint account held with Marie when she needed more cash.   The plaintiff and his wife attended to Marie's needs as her condition deteriorated subsequent to the T.I.A. in December 2005.   The court will find that the defendant has failed to prove that the plaintiff's acts have defrauded Marie's heirs out of a substantial portion of their inheritance.

The defendant argues that Marie was unduly influenced by the plaintiff.   The evidence and record in this case belie that contention.   The evidence did not demonstrate that the plaintiff made active solicitations to obtain any benefit from Marie nor was there evidence of a disposition to do the same.   Although the plaintiff did have opportunity to exercise control over Marie, he did not attempt to destroy her free agency.   To the contrary, the plaintiff took funds from accounts designated for him and deposited the funds into accounts for Marie's care.

Contrary to the defendant's contention, the burden of proof to prove the absence of undue influence did not shift to the plaintiff in these circumstances.   Our Supreme Court has stated:

Ordinarily, the burden of proof on the issue of undue influence rests on the one alleging it, and this is true whether the issue arises in a will contest or in a proceeding in equity to set aside a conveyance ․ In will contests, we recognize an exception to this principle when it appears that a stranger, holding toward the testator a relationship of trust and confidence, is a principal beneficiary under the will and that the natural objects of the testator's bounty are excluded ․ The burden of proof, in such a situation, is shifted, and there is imposed upon the beneficiary the obligation of disproving, by a clear preponderance of evidence, the exertion of undue influence by him ․ A similar rule would seem to apply in proceedings to set aside conveyances ․ We have said, however, that the law “does not brand every legacy as prima facie fraudulent simply because the legatee enjoys the trust and confidence of the testator ․ [I]t is only where the beneficiary is, or has acquired the position of, a religious, professional or business adviser, or a position closely analogous thereto, that the rule of public policy can be invoked which requires such a beneficiary to show that he has not abused his fiduciary obligation.”  ․ It has been stated frequently that the rule should not be extended beyond the limitations placed upon it in its recognition ․ There is a marked distinction between the situation where the beneficiary is a stranger and the situation where he is a child of the testator or grantor ․ When, as here, a child is the beneficiary, the burden of proving the absence of undue influence does not shift to the child, even though it appears that a confidential relationship existed ․ “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.

Berkowitz v. Berkowitz, 147 Conn. 474, 476–78 (1960) (citations omitted).

The present case is closely analogous to the foregoing given the strong personal relationship between Marie and the plaintiff.   The plaintiff and his wife attended to Marie as if she were a parent.   Marie reciprocated.

Despite the allegations of undue influence by the defendant, the allegations are unsupported in the evidence.   Although plaintiff was in a position to do so because of his frequent contact with Marie while caring and attending to her needs, there is scant credible evidence to support a claim of undue influence.   There is evidence of many expressions by Marie of her love for and appreciation of the plaintiff and his wife.

There is little question that Marie Milano's condition was deteriorating later in her life.   In 2008 and 2009, she didn't understand her affairs anymore, could barely speak, and was bedridden.   In 2009 until the time of her death, Marie was disabled and unable to communicate.   However, during September and October of 2005, the critical period in terms of the Peoples accounts at issue here, although she had begun to fail, Marie was still in full command of her faculties.

Dr. Musto, Marie's ophthalmologist, believed that there was nothing different about the way Marie presented herself in November 2005 than what it had been in the twelve years he had treated her.   In both November and December 2005 visits, Dr. Musto noted that Marie was well developed, well nourished, alert and oriented, and mood appropriate.   Dr. Musto thought her mental status was normal.

Dr. Voskanian, a forensic psychiatrist, reviewed most of the pertinent records in this matter and determined that Marie was subject to undue influence due to a weakness of intellect.   Dr. Voskanian believed that Marie already had mild dementia in September and October of 2005.   His failure to have reviewed all of the relevant records undercuts his opinion, however.   Dr. Voskanian opined that Marie had been subjected to undue influence when she executed the pertinent Peoples Bank documents.   Dr. Voskanian believed that the plaintiff had an opportunity to exert undue influence since the plaintiff had driven Marie to the bank and was present when the documents were executed, and that no one else knew about these documents.   Dr. Voskanian believed that to be unusual since Marie usually discussed such matters with the defendant but did not with the Peoples documents.   That assumption is unsupported by the other evidence, including the testimony of the defendant who stated that Marie was private about her paperwork, her bills and her accounts and investments.

Dr. Eric Frazer, a clinical and forensic psychologist, testified after reviewing the medical records, exhibits, and trial testimony of witnesses, that Marie was not subject to undue influence.   Dr. Frazer agreed that there was an opportunity to exert undue influence by the plaintiff, however, no action was taken on that opportunity.   That opinion is consistent with the evidence in this case.   For example, the plaintiff had the opportunity to exercise control over Marie's “in trust for” accounts in the plaintiff's name, however the funds were deposited into bank accounts for Marie's care.   It would be unusual for someone exploiting another to give money back to the person being exploited.

Dr. Frazer believed that Marie did not have a weakened intellect or weakened mental state based upon his review of the records and testimony.   His opinion is supported by documentary evidence including Marie's note or letter dated August 20, 2005, on the occasion of Dolly's 91st birthday, which is well written, coherent, organized, and thoughtful.   Dr. Musto, who had the opportunity to observe Marie over a substantial period of years, was of the same opinion.   Frazer's opinion as to Marie's mental status was largely corroborated by other witnesses including Brian Smith, who was a close personal friend of the Milanos since 1986, Rita Kiriloniene, a care giver to the elderly who first met Marie in July 2006, and Andrea Federico, the bookkeeper who worked for Marie from May 2005 through December 2005, the plaintiff, and the defendant.

The defendant has failed to prove undue influence by the plaintiff.   See Berkowitz v. Berkowitz, supra at 476.

The defendant's conduct was “tortious” even though the defendant acted pursuant to a valid power of attorney.   Marie is conclusively presumed to have intended that the monies be received by the named beneficiaries in the trusts at the time of her death.  Dalia v. Lawrence, supra at 66.   In June 2010 when Marie was incapacitated, the defendant Frank Fasanella acted contrary to her wishes and desires when he closed the accounts, notwithstanding the power of attorney.   Therefore, the defendant's conduct was tortious.   The plaintiff suffered actual damage as a result of the defendant's tortious conduct since the plaintiff did not receive the funds in the Totten Trust accounts.

Accordingly, based on all of the foregoing, the plaintiff has proved interference with expectation of inheritance as charged in the first count of the fourth revised complaint.

In the second count of the fourth revised complaint the plaintiff claims a breach of the fiduciary duty which the defendant owed to Marie Milano pursuant to the power of attorney, and that the plaintiff sustained damages as a result of that breach.

A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the other.   Konover Corp. v. ZelIer, 228 Conn. 206, 219 (1994).   A durable power of attorney creates a formal contract of agency between one executing the power of attorney, and the principal who holds, and may act pursuant to the power of attorney.  Long v. SchuIl, 184 Conn. 252, 256 (1981).   Thus, a fiduciary relationship results.

In Everett v. Everett, Superior Court, judicial district of Stamford–Norwalk at Stamford, docket no.   6004013 (December 16, 2010, Adams, J.), the court stated:

The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut law are:  (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff (2).   That the defendant advanced his or her own interests to the detriment of the plaintiff;  (3).   That the plaintiff sustained damages;  (4).   That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty.

Here, the defendant had a fiduciary duty to Marie pursuant to his power of attorney.   Once there is a showing of a fiduciary duty, the burden of proof shifts to the fiduciary to prove fair dealing by clear and convincing evidence, clear and satisfactory evidence or clear convincing and unequivocal evidence.   Dunham v. Dunham, 204 Conn. 303, 322–23 (1987).

Although he acted pursuant to the power of attorney, the defendant did not have the power to put his interpretation on Marie's designation of beneficiaries of accounts.   The defendant closed the accounts where he disagreed with Marie's prior designation of beneficiary.   The defendant did so for his own gain and that of his relatives.   By so acting, the defendant acted directly contrary to Marie's intent and directly harmed the plaintiff's interest in these trust accounts.

Limoncelli v. Limoncelli, Superior Court, judicial district of New Haven, docket no.   CV030483531 (December 8, 2004, Pittman, J.) [38 Conn. L. Rptr. 395], is closely analogous to the present case.   In Limoncelli, the defendant, acting with a power of attorney, closed Totten Trust accounts held by her father naming the plaintiff as beneficiary.   The father had used joint accounts and a Totten trust account as his means of estate planning.   Without reason or justification, the defendant closed the accounts and converted the funds for her own use.   A similar fact pattern exists here.

Here, without permission or consent from Marie, the defendant apparently felt that he and other members of his family were entitled to a greater share of Marie's estate.   The defendant closed the trust accounts and deposited the funds into accounts from which he and his family would benefit, to the plaintiff's detriment.   The defendant, Frank Fasanella, had no authority to invade the trust accounts for such purpose.   The defendant was not acting in Marie's best interests nor did he act in good faith.   The defendant's actions in closing the Peoples Totten Trust accounts directly caused the plaintiff to suffer damages.

Accordingly, judgment for the plaintiff will enter on the second count of the fourth revised complaint, charging breach of fiduciary duty.

In summary, judgment will enter for the plaintiff on the first and second counts of the fourth revised complaint.   The defendant has failed to prove the special defenses.

DAMADP1⌑When the accounts were closed by the defendant, the value of each account was as follows:

Account ending in –0120:  $ 60,840.91

Account ending in –0127:  $ 69,353.13

Account ending in –0163:  $116,996.85

Account ending in –0166:  $180,717.60

Total:  $427,908.49

The plaintiff is entitled to statutory interest on this sum in the amount of 10% per annum pursuant to Connecticut General Statutes § 37–3a.   The per diem interest is $117.23.   The interest begins to run on the date of Marie's death, July 7, 2010.   Total interest as of the date of this judgment is $150,763.45.

Additionally, the plaintiff filed an offer of compromise in the amount of $375,000.00 on December 20, 2011.   Pursuant to Connecticut General Statutes § 52–192a(c) the plaintiff is entitled to 8% interest per year from the date the complaint was signed, namely, January 19, 2011.   The amount of interest awarded pursuant to the statute is $102,229.11.

SO ORDERED.

HARTMERE, J.T.R.

Hartmere, Michael, J.