Robert Newcomb v. Bryan Thomas Sweeney et al. (2014)

RULING REGARDING SUBJECT MATTER JURISDICTION AND RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 104.22)

By motion dated September 7, 2012, originally filed in United States District Court,¹ and, thereafter, filed with this court on May 17, 2013, the plaintiff, Robert Newcomb, moved for summary judgment as to count one of his complaint.   The defendants, Bryan Thomas Sweeney and Beth Ann Graves, objected to the motion by memorandum dated September 28, 2012, originally filed with the United States District Court, and, thereafter, filed with this court on May 17, 2013.

The motion for summary judgment came before the court and was heard on November 18, 2013.   After reviewing the applicable pleadings, the court questioned whether it had subject matter jurisdiction and ordered the parties to file memoranda addressing that issue.   The parties filed simultaneous memoranda on January 6, 2014.   On January 27, 2014, the parties came before the court and were heard on the question of subject matter jurisdiction and on the motion for summary judgment.   The court concludes that it has subject matter jurisdiction and, therefore, can consider the plaintiff's motion for summary judgment.   The motion for summary judgment is granted.

I

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed his complaint with this court on February 16, 2011.   The defendants removed the case to the United States District Court for the District of Connecticut on March 15, 2011.   The plaintiff then filed a two-count amended complaint, dated April 8, 2011, in District Court.   On April 29, 2013, having dismissed count two of the complaint, the District Court remanded the case to the Superior Court.   In the remaining first count of the complaint, the plaintiff seeks a determination that he is the proper beneficiary of four individual retirement accounts (“the IRAs”) that had been owned by an acquaintance, decedent Krystyna Jean Sweeney (“decedent”).

The four IRAs each named the plaintiff as beneficiary.   The beneficiary designations were executed on four different dates:  December 13, 2006, January 11, 2007, May 16, 2007, and May 22, 2007.   The plaintiff alleges that he is the sole beneficiary on each of the four accounts.   He claims that the defendants, who are the decedent's stepchildren, are challenging the plaintiff's title to the IRA accounts pursuant to General Statutes § 45a–98.²  The plaintiff alleges that he filed an affidavit with the Westport Probate Court, notifying that court of his intention to establish, with the Superior Court, his title to the IRAs and his right to receive the proceeds of those accounts.³

II

SUBJECT MATTER JURISDICTIONAParties' Positions

First, the plaintiff claims that the defendants should bear the burden of establishing that this court has subject matter jurisdiction because the defendants invoked the jurisdiction of the Probate Court relative to the ownership of the IRAs. Second, the plaintiff argues that this court has subject matter jurisdiction, pursuant to General Statutes § 45a–98(b), because the Probate Court has jurisdiction relative to the IRAs, pursuant to General Statutes § 45a–98(a)(3).   The plaintiff's third and final argument is that, when the District Court dismissed the second count of the complaint and remanded the remaining count to this court, it “determined that the Probate Court had jurisdiction over this matter.”   Thus, the plaintiff concludes, the District Court decision constitutes the law of the case.

In contrast, the defendants assert that this court does not have subject matter jurisdiction because not all property previously owned by the decedent constitutes property covered by General Statutes § 45a–98, which defines Probate Court jurisdiction, and the IRAs “fall squarely within the scope of the statutory jurisdictional exemption” set forth in General Statutes § 45a–347.

B

Discussion

The court does not agree with the plaintiff's suggestion that the defendants bear the burden of establishing subject matter jurisdiction.   First, the plaintiff offers no authority in support of the latter claim.   Second, his argument flies in the face of binding precedent.  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).   Even if the burden of establishing subject matter jurisdiction were to fall upon the defendants, they take the position that the Probate Court had no jurisdiction with regard to the IRA accounts and that this action should be dismissed.

To address the plaintiff's second argument, it is first necessary to understand the nature of an IRA. “An IRA is a trust created for the exclusive benefit of an individual or his or her beneficiaries ․ An IRA account may be established using a bank, a savings bank, a mutual fund or an insurance company ․ The financial institution acts as trustee of the account and is responsible for the record-keeping, reporting and disclosure requirements.”   (Citations omitted.)   Bristol Savings Bank v. Risall, Superior Court, judicial district of Hartford, Docket No. CV–92–509344–S (November 12, 1992, Aronson, J.) [7 Conn. L. Rptr. 563].

The question presented to this court is whether the Probate Court has (or, in this case, had) jurisdiction to address a dispute as to the plaintiff's beneficial ownership of the IRAs. The answer to that question must begin with a review of Probate Court jurisdiction.  “The general parameters of Probate Court jurisdiction are well settled.   The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties ․ A Probate Court may exercise jurisdiction based on statutory authority only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power ․ Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a statute.   The Probate Court generally has no jurisdiction over equitable claims, the sole exception being when the equitable claim is incidental to, and connected with, the settlement of a particular estate.”  (Citations omitted;  internal quotation marks omitted.)  Bender v. Bender, 292 Conn. 696, 707, 975 A.2d 636 (2009).

Historically, the Probate Court lacked jurisdiction to try titles to property.   Consequently, the question of beneficial ownership, if disputed, was resolved in a court of general jurisdiction.  Wilson v. Warner, 84 Conn. 560, 565–66, 80 A.2d 718 (1911);  see 1 W. Locke & P. Kohn, Connecticut Probate Practice (1951) § 73, p. 137;  § 77, p. 143;  § 90, p. 169.   This court must determine whether the current statute outlining the general powers of the Probate Court compels a different result.   That statute includes the following provision, upon which the plaintiff relies:  “Courts of probate ․ shall have the power to ․ (3) except as provided in section 45a–98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate ․ which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate ․” General Statutes § 45a–98(a)(3).

Our Supreme Court has concluded that “the broad language of [45a–98(a)(3) ] creates several ambiguities.   The phrase ‘determine title’ is language traditionally associated with property law, rather than [a] contract based action ․ and may be intended to apply only to actions originating in property law.   Conversely ․ the phrase may apply broadly to all actions relevant to the ownership and use of property, including contract actions.   We also note that the reference to property ‘that constitutes, or may constitute, all or part of ․ any decedent's estate’;  General Statutes § 45a–98(a)(3);  could be intended to limit jurisdiction to disputes over whether the property at issue belongs to the estate, rather than whether it can be conveyed by the estate.”  (Citations omitted.)  Bender v. Bender, supra, 292 Conn. 709–10.   Our Supreme Court, having examined “the genealogy and legislative history of the statutes governing Probate Court jurisdiction;” Id., 710;  found that the provision enacted in 1993, codified at General Statutes § 45a–98(a)(3), granted the Probate Court limited additional jurisdiction, including vesting “the Probate Court with concurrent jurisdiction with the Superior Court to try title to real and personal property in which a claim is made that said property is an asset of a trust, [or] a decedent's estate ․” Id., 716.

In the present case, by a filing dated December 1, 2010, the defendants moved “to determine title” in the Probate Court.   That motion asked the Probate Court to, inter alia, invalidate the plaintiff's designation as beneficiary on the IRAs and to direct the temporary administrator to take control of the IRAs. P1's Ex. B. Thereafter, the plaintiff brought this action in Superior Court, pursuant to General Statutes §§ 45a–98(b) and 45a–98a.   The essence of the defendants' claim appears to be that the IRAs were personal property of the decedent, that the plaintiff's designation as beneficiary is invalid, and, therefore, that the corpus of the IRAs are assets of the decedent's estate.

General Statutes § 45a–347 does not, on its face, deprive this court of subject matter jurisdiction.   That section provides in relevant part that “[t]he designation in accordance with the terms of ․ any ․ individual retirement account ․ of any person to be a beneficiary or owner of any right, title or interest thereunder upon the death of another, shall not be subject to any statute or law governing the transfer of property by will, even though such designation is revocable by the person who made it, or the rights of such beneficiary or owner are otherwise subject to defeasance.”   Thus, although § 45a–347 makes clear that IRAs are not subject to the statute of wills, it does not go so far as to purport to strip the Probate Court of the jurisdiction conferred on it by General Statutes § 45a–98(a)(3).

Two basic principles, one relative to statutory construction and the other relative to jurisdiction, buttress the foregoing conclusion.   Our Supreme Court has directed that courts “must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective.   In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law ․ Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both ․ If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so ․ Therefore, [w]e must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other ․ In addition, [i]f two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable ․” (Citations omitted;  internal quotation marks omitted.)  Rainforest Cafés, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 377–78, 977 A.2d 650 (2009);  see Tomlinson v. Tomlinson, 305 Conn. 539, 552, 46 A.3d 112 (2012).   Thus, even if §§ 45a–98(a)(3) and 45a–347 can, in any way, be read in a manner that renders them inconsistent, it is this court's obligation to question, and if appropriate avoid, such a reading.   For the reasons stated, this court concludes that both statutes can and should be construed in a manner that permits both to operate effectively.

Similarly, this court is obligated to interpret the relevant statutes consistent with the following mandate:  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).

In view of the foregoing conclusions, the court need not reach the question of whether the District Court remand order constitutes the law of the case.   For all of the foregoing reasons, this court concludes that it has subject matter jurisdiction and, therefore, it is appropriate to address the plaintiff's motion for summary judgment.

II

SUMMARY JUDGMENTAParties' Positions

The plaintiff moves for summary judgment, arguing that there are no genuine issues as to any material fact with respect to his right to the title and proceeds of the IRAs. The plaintiff claims that he possesses the IRAs and that the defendants' special defenses are without merit.   He argues that the IRAs were properly executed and clearly designate him as beneficiary.   The plaintiff directs the court's attention to deposition testimony by the persons who prepared and witnessed the beneficiary designations, who testified that the decedent was competent when she executed those designations.

The defendants oppose the motion for summary judgment, asserting that this court should impose a constructive trust, for their benefit, on the IRA assets.   They argue that the decedent held those assets in trust;  an argument based on their belief that their father, Thomas Sweeney, wanted his assets to be passed, ultimately, to his children.⁴  They argue, further, that not only was the decedent an alcoholic, but that the Probate Court findings establish that the decedent was susceptible to manipulation.

B

Summary Judgment Standard

Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to material fact and that the moving party is entitled to judgment as a matter of law.  Practice Book § 17–49.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 595–96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).  “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Internal quotation marks omitted.)  Id., 596;  see DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115–16,49 A.3d 951 (2012).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

“The courts hold the movant to a strict standard.   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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).

C

Summary Judgment on the Complaint

The plaintiff offers evidence that he regularly visited his grandmother, Katherine Maliszewski, in Westport beginning in the 1980s;  that the decedent was Maliszewski's friend and next door neighbor;  and that the decedent had been friends with the plaintiff's deceased mother.   The plaintiff visited with both his grandmother and the decedent for many years;  he performed chores for the decedent;  the decedent visited the plaintiff at his home;  and the decedent was godmother to the plaintiff's daughter.

On June 20, 2008, the decedent executed a handwritten will that, after her death, was the subject of a challenge in the Westport Probate Court.   The Probate Court ruled that the will would not be admitted to probate due to influence by the scrivener, Deborah Scott.   That decision is the subject of a pending appeal.   Newcomb v. Day, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–13–6018830–S.

The plaintiff offered evidence of his longstanding, close relationship with the decedent, and evidence that Deborah Scott was not involved in the IRA beneficiary designations that were signed in 2006 and 2007.   The plaintiff also presented the deposition testimony of the bank employees who were present when the decedent signed each of the four beneficiary designations.⁵  Those employees testified that the decedent was competent on each occasion when she signed those documents;  neither employee observed any issue regarding the decedent's understanding of the documents or her ability to make rational decisions on those occasions;  and neither employee observed any evidence that the decedent was under the influence of alcohol on any of the occasions that they met with her.   On the contrary, they recalled discussions with the decedent regarding her choice of beneficiary, contingent beneficiary, and her reasons for those choices.   The court concludes that the plaintiff has made a prima facie showing that there are no genuine issues of material fact.

In their answer to the complaint, in addition to denying the central allegations of the complaint, the defendants raised six special defenses.   They allege that the complaint fails to allege a cognizable cause of action, that the plaintiff is precluded from recovery by the doctrine of unclean hands, that he engaged in fraud by taking advantage of the decedent, that the accounts are subject to a constructive trust, that the instruments at issue were executed under duress, and that the decedent lacked testamentary capacity when she signed the account designations.

In the very brief supplemental memorandum that the defendants filed on October 10, 2013, they focus solely on the decedent's alleged “susceptibility to undue influence,” ⁶ a claim that they base on the Probate Court decision.   In prior pleadings, the defendants based their opposition to the motion for summary judgment on three points.   First, they claimed that the decedent told them, at various times, that she would “not be taking away” any assets that had belonged to their father, Robert Sweeney.   In other words, the defendants asserted that, after their father died in 1991 and his assets were passed to their stepmother, those assets were to be preserved for them.   Second, they contended—and the plaintiff does not dispute—that the decedent had a long history of alcohol abuse.   Finally, they argued that, based on the evidence of Deborah Scott's undue influence on the decedent in June 2008, one can—and should—extrapolate backward to conclude that the decedent was unduly influenced on the four separate occasions when she completed beneficiary designations for the four IRAs.

The Probate Court decision focused, very specifically, on the events that involved Deborah Scott and the days surrounding the execution of the June 20, 2008 will, which the Probate Court did not admit to probate.   The Probate Court considered, inter alia, that Scott invited herself to the decedent's home two days prior to the decedent undergoing serious surgery on June 21, 2008, that Scott raised the issue of the decedent's need for a will, she discussed the terms of the proposed will, and she handwrote out those terms.   Scott included herself in the will as a legatee and contingent beneficiary, and oversaw the signing and attestation of the will.   Moreover, when the decedent later expressed an interest in preparing another will, Scott—who had taken the handwritten will home with her to Georgia—failed to assist the decedent in creating a new will.   The Probate Court considered all of the foregoing facts in combination and concluded that the handwritten will was the product of Scott's undue influence.

The defendants failed to offer any admissible evidence—or any evidence at all—from which this court could conclude that the facts, upon which the Probate Court relied, serve to invalidate the beneficiary designations of 2006 and 2007.   They did not offer evidence that Scott had any relationship with the plaintiff;  that Scott, the plaintiffs, or anyone other than the decedent played any role in the beneficiary designations;  or that the plaintiff even learned of the beneficiary designations prior to the decedent's death.

In her deposition, defendant Beth Graves testified that, after her father died, she visited the decedent a “couple of times a year,” “[m]aybe several times a year.”   She also testified that her co-defendant, Douglas Sweeney, lives in Florida “and didn't have much contact” with the decedent.   Graves stated that she had been a bartender for twenty-five years, that “she can tell” when somebody has been drinking, and that “lots of times [she] would know that [the decedent] was drinking,” so, on those occasions, she cut short her visits with the decedent.   Graves testified that the decedent told her that “she would always take care of us” and that the defendants “were written in as beneficiaries to the IRA.” However, Graves acknowledged that the factual basis for her claim of undue influence is based solely on inferences that she drew.⁷

The defendants argue, however, that the plaintiff has been ill, preventing them from “fully explor[ing] the ways by which he was able to manipulate [the decedent].” ⁸  They also argue that the decedent's “last years ․ were marked by ․ alcoholism.”   The defendants rely on our Supreme Court's decision in Dale's Appeal from Probate, 57 Conn. 127, 17 A.2d 757 (1888), for the proposition that the decedent's susceptibility to influence in June 2008 “is relevant ․ and should be evaluated by the factfinder at trial.”

In Dale's Appeal from Probate, supra, 57 Conn. 129, 134–35, our Supreme Court addressed a situation in which a will was executed in 1880, the testatrix died in 1887, and evidence of her mental condition in 1887 was admitted on the issue of her competency in 1880.   Her treating physician, who saw no sign of mental impairment when he met her for the first time in the last week of her life, testified that, at that time, she was competent to do “anything she wanted to in the way of her business affairs ․” Id., 143.   The court held that “[w]hen the question is one of sanity or testamentary capacity at a given time, upon the presumption that the mind does not ordinarily pass suddenly and sharply from sanity or capacity into the opposite condition, nor from the latter into sanity or capacity, but gradually and imperceptibly as day into night, the law permits the evidence to cover long spaces of time in either direction.   Of course, it weakens as time lengthens and in either direction at last ceases to be of any force.   All this however is for the jury to determine under proper instructions from the court.”  Id.

The defendants' reliance on Dale s Appeal from Probate is misplaced.   That case stands for the proposition that evidence of behavior on one occasion may be admissible relative to a person's state of mind seven years prior to that occasion.   To demonstrate that proffered evidence meets the test of admissibility at trial is not the functional equivalent of establishing the existence of a material fact sufficient to rebut the plaintiff's prima facie showing.   Evidence that is not conclusive may nonetheless be admissible.  “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative ․ [T]he relevance requirement ․ is a fairly low hurdle.”  (Citations omitted;  internal quotation marks omitted.)  State v. Allen, 289 Conn. 550, 562, 958 A.2d 1214 (2008).

At oral argument, the defendants acknowledged that they have no evidence regarding the decedent's capacity on the specific dates when she designated the plaintiff as the beneficiary of the IRAs. It is well established that the issue of lack of testamentary capacity must be resolved on the basis of the decedent's state of mind at the time the IRA designations were executed.   See Jackson v. Waller, 126 Conn. 294, 301–02, 10 A.2d 763 (1940).   The defendants' acknowledgement that they have no such evidence compels the conclusion that they failed to rebut the plaintiff's prima facie showing that there is no genuine issue of material fact with regard to his right to the title and proceeds of the IRAs.

D

Special Defenses

The defendants have raised six special defenses, which the court must analyze to determine whether there are genuine issues of material fact that would preclude the entry of summary judgment.  “Only one of the defendants' special defenses needs to be valid in order to overcome the motion for summary judgment.”  Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996);  see Episcopal Church in Diocese of Connecticut v. Gauss, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06–CV–08–4020456–S (March 15, 2010, Stevens, J.) (49 Conn. L. Rptr. 630), aff'd, 302 Conn. 408, 28 A.3d 302 (2011), cert. denied, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012) (plaintiffs in property dispute “entitled to summary judgment unless any of the defendants' special defenses preclude this disposition”);  Milford Hospital v. Champeau, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–00–069269–S (April 27, 2001, Grogins, J.) (in collection action “court must examine the defenses raised by the defendants in order to determine whether the plaintiff is entitled to judgment as a matter of law as to the issue of liability”).

(1)

Failure to State a Cognizable Cause of Action

The defendants' memoranda and affidavits in opposition to the motion for summary judgment make no reference to the special defense of “failure to state a cognizable cause of action.”   In any case, the plaintiff alleges, in the first count, that he seeks a judgment establishing title to the IRAs, and that he has a right to receive the proceeds of the IRAs, pursuant to General Statutes § 45a–98.   As was discussed, supra, this court concludes that § 45a–98 governs this case.   Therefore, this court finds that the plaintiff has stated a cognizable cause of action.

(2)

Unclean Hands

To state a special defense based on “unclean hands,” a party must allege facts “that, if admitted, would rise to the level of unclean hands so as to preclude the court from rendering ․ relief.”  Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 526–27, 686 A.2d 481 (1996) (denying motion to amend answer to include unclean hands special defense).  “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation.”  (Internal quotation marks omitted.)  Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).   The defendants rely on the fact that the plaintiff asked the decedent to serve as his child's godmother.   They offer no support, and the court is not aware of any, that would permit the conclusion that asking someone to serve as godparent for their child constitutes wilful misconduct.

(3)

Fraud

In Connecticut, a common law remedy exists for fraudulent conveyance.   Molitor v. Molitor, 184 Conn. 530, 535, 440 A.2d 215 (1981).   The party seeking to set aside a conveyance as fraudulent bears the burden of proving either “(1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligation or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.”  Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984).   The party seeking to set aside the conveyance need not satisfy both alternatives.  Id.

The defendants' special defense of fraud is, on its face, insufficient as a matter of law.   The defendants allege, simply, that “Newcomb is precluded from obtaining the relief he seeks because of his acts of fraud in taking advantage of the decedent.”   Such conclusory allegations are insufficient.   Acts constituting fraud must be pleaded with some degree of specificity.  Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952) (“the mere allegation that a fraud has been perpetrated is insufficient;  the specific acts relied upon must be set forth”).   Indeed, at oral argument, the defendants conceded that they have no evidence that the plaintiff engaged in fraud in connection with the beneficiary designations.

(4)

Constructive Trust

“A constructive trust is the formula through which the conscience of equity finds expression.   When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee ․ The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment ․ Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ․ A claimant seeking a constructive trust must identify property in the hands of the [defendant] that represents or embodies ․ property obtained at the claimant's expense or in violation of the claimant's rights.”  (Citations omitted;  internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 466, 970 A.2d 592 (2009).  “[A] constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.”  (Internal quotation marks omitted.)  Giulietti v. Giulietti, 65 Conn.App. 813, 856, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001).

In the present case, the defendants have offered no admissible evidence that the plaintiff engaged in any conduct to support the special defense of constructive trust.   Indeed, the plaintiff introduced evidence that he was not aware, until after the decedent passed away, that she had designated him as beneficiary on the IRAs. The defendants offered no evidence in rebuttal of the plaintiff's prima facie showing.   See Hinckley v. Marquis, Superior Court, judicial district of Waterbury, Docket No. CV–01–0168329–S (September 27, 2004, Matasavage, J.) (declining to impose a constructive trust on IRA proceeds).

The defendants also appear to argue that the decedent held her IRA assets in trust for the defendants.   They claim that before the decedent's husband died in 1991, he expected the decedent to “take care of” her stepchildren.   Defendant Beth Ann Graves testified at her deposition that, at some point prior to 1991, her father told her that he was “going to take care of my mother and [the decedent] and that they would both, in turn, take care of us.”   Pl.'s Ex. K, Graves Dep. 28.   She testified further that, shortly after her father passed away, she had a conversation with the decedent and the decedent said, “I would never take away what was your dad's.   And those conversations came up at other times, as well.”   Pl.'s Ex. K, Graves Dep. 28.   Graves also testified that the decedent “told me that we were written as beneficiaries to the IRA.” Pl.'s Ex. K, Graves Dep. 31.   Significantly, the defendants did not offer evidence of any communications between Thomas Sweeney and the decedent regarding the ultimate disposition of the IRAs or regarding the IRAs at all.   Cf. Starzec v. Kida, 183 Conn. 41, 438 A.2d 1157 (1981) (evidence of promise and confidential relationship sufficient to impose constructive trust).

“A constructive trust is an equitable remedy imposed to prevent unjust enrichment.   Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ․ Before a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of transfer of the property ․ A confidential relation exists not only where there is a fiduciary relation ․ but also where, because of family relationship ․ the transferor ․ is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.”  (Citations omitted;  internal quotation marks omitted.)  Gulack v. Gulack, 30 Conn.App. 305, 311–12, 620 A.2d 181 (1993).  “The elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property.”  Id., 310.

The defendants did not analyze the elements of a constructive trust.   They merely argue, relying on Graves' deposition testimony, that “the record evidence in this case is sufficient to create genuine issues about [the decedent] and her act of designating Newcomb to be the beneficiary of the retirement accounts and her violation of the constructive trust by which she held the assets that were earmarked for the heirs-at-law.”   The defendants offered little evidence regarding the nature or contents of any IRA accounts held by Thomas Sweeney up to the time of his death in 1991.   Similarly, the record reflects insubstantial evidence that the decedent's IRAs were originally owned by Thomas Sweeney.⁹

The issues relative to a constructive trust in this case include, first, whether the decedent and Thomas Sweeney shared a confidential relationship;  second, whether the decedent failed to dispose of property in the manner she allegedly promised Thomas Sweeney;  and third, whether her alleged promise to Thomas Sweeney induced him to transfer his property to her.   See Riccio v. Riccio, 75 Conn.App. 556, 558–59, 816 A.2d 733 (2003).

The absence of any evidence that Thomas Sweeney elicited a promise from the decedent to convey his assets to her on the condition that she ultimately convey those same assets to the defendants, is fatal to the defendants' special defense seeking the imposition of a constructive trust.   See Menard v. Gaskell, 92 Conn.App. 551, 885 A.2d 1254 (2005).   The defendants' have not made a prima facie showing that the IRAs were the subject of a constructive trust.

(5)

Duress

“For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim ․ The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will.”  (Internal quotation marks omitted.)  In re Travis R., 80 Conn.App. 777, 782, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).

The defendants have not made a prima facie showing in support of their special defense of duress, nor have they offered admissible evidence to rebut the plaintiffs showing that, inter alia, he did not carry out any wrongful acts or threats, nor did he take any action that would have prevented the decedent from choosing alternative beneficiaries for the IRAs. At oral argument the defendants acknowledged that they have no evidence that the plaintiff engaged in any conduct that constitutes duress.

(6)

Lack of Testamentary Capacity

“To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it ․ The burden of proof in disputes over testamentary capacity is on the party claiming under the will ․ While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity ․ It is equally clear that an individual may possess the mental capacity necessary to make a will although incapable of transacting business generally.”  (Citations omitted;  internal quotation marks omitted.)  Deroy v. Baron, 136 Conn.App. 123, 127–28, 43 A.3d 759 (2012).

It is not clear that “lack of testamentary capacity” is a valid special defense in this action, since the challenge is not to the execution of a will, but rather to the designation of beneficiary for IRAs. Even assuming, however, that such a special defense is viable in this context, the defendants have offered no admissible evidence that the decedent lacked testamentary capacity at the time she designated the plaintiff as beneficiary on the IRAs. The claim of lack of testamentary capacity is decided based upon the mental condition and capacity of the decedent when she executed the instrument, at that very time and none other.   See Jackson v. Waller, supra, 126 Conn. 302.

Although the Probate Court found that Scott exercised undue influence over the decedent and refused to admit the will prepared by Scott, the Probate Court did not find that the decedent lacked testamentary capacity, notwithstanding the evidence of her alcoholism.   In the present case, the defendants have done no more than offer evidence that the decedent was an alcoholic.   They have failed to offer any evidence that she lacked testamentary capacity at the time she designated the plaintiff as beneficiary to the IRAs. Therefore, the defendants have failed to rebut the plaintiff's prima facie showing that the decedent possessed testamentary capacity at the time she established the beneficiary designations on the IRAs.

III

CONCLUSION

For all of the foregoing reasons, the motion for summary judgment is granted.

So ordered.

BY THE COURT,

John A. Danaher, III, J.

FOOTNOTES

FN1. Newcomb v. Sweeney, United States District Court, Civil Action No. 3:11–cv–00399–VLB..  FN1. Newcomb v. Sweeney, United States District Court, Civil Action No. 3:11–cv–00399–VLB.

FN2. General Statutes § 45a–98 empowers courts of probate to, inter alia, “determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trusts any decedent's estate ․ which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate ․”.  FN2. General Statutes § 45a–98 empowers courts of probate to, inter alia, “determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trusts any decedent's estate ․ which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate ․”

FN3. General Statutes § 45a–98 also provides that the jurisdiction of the courts of probate to determine title or rights “is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.”.  FN3. General Statutes § 45a–98 also provides that the jurisdiction of the courts of probate to determine title or rights “is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.”

FN4. The defendants claim that Thomas Sweeney, who died in 1991 at age fifty-five, first married their mother, then divorced her and married the decedent.   Thereafter, he divorced the decedent, returned to their mother, and then, in the late 1970s, he again left their mother to remarry the decedent..  FN4. The defendants claim that Thomas Sweeney, who died in 1991 at age fifty-five, first married their mother, then divorced her and married the decedent.   Thereafter, he divorced the decedent, returned to their mother, and then, in the late 1970s, he again left their mother to remarry the decedent.

FN5. Pl.'s Ex .F and G..  FN5. Pl.'s Ex .F and G.

FN6. The court notes that the defendants did not specifically allege, in any of their special defenses, that the plaintiff or anyone else exercised undue influence on the decedent when she executed the beneficiary designations.  “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 ․ [T]here 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.”  (Citation omitted;  internal quotation marks omitted) Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006)..  FN6. The court notes that the defendants did not specifically allege, in any of their special defenses, that the plaintiff or anyone else exercised undue influence on the decedent when she executed the beneficiary designations.  “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 ․ [T]here 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.”  (Citation omitted;  internal quotation marks omitted) Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).

FN7. “Q. Isn't it true, ma‘am, really the basis for your claim as to Mr. Newcomb is because Mr. Newcomb is the beneficiary under the will;  you therefore, infer that he exercised undue influence on her?  ․ A. Yes, because it goes against everything she told me for years and years and years.”   Pl's Ex. K, Graves Dep. 61–62..  FN7. “Q. Isn't it true, ma‘am, really the basis for your claim as to Mr. Newcomb is because Mr. Newcomb is the beneficiary under the will;  you therefore, infer that he exercised undue influence on her?  ․ A. Yes, because it goes against everything she told me for years and years and years.”   Pl's Ex. K, Graves Dep. 61–62.

FN8. After the defendants made this claim, the plaintiff recovered from surgery for a brain tumor and was deposed on July 30, 2013.   The defendants now claim that they have uncovered, as evidence of the plaintiff's “manipulation,” the fact that the plaintiff named the decedent as godmother to his daughter..  FN8. After the defendants made this claim, the plaintiff recovered from surgery for a brain tumor and was deposed on July 30, 2013.   The defendants now claim that they have uncovered, as evidence of the plaintiff's “manipulation,” the fact that the plaintiff named the decedent as godmother to his daughter.

FN9. At the court's request, the plaintiff produced exhibits that were referred to relative to the motion for summary judgment but which had not been filed by either party in connection with their relative positions on the motion.   Specifically, the plaintiff provided the court with interrogatory responses by the defendants in which the defendants responded to the following question:  “6. In connection with your claim that the monies in the IRA accounts ․ originally belonged to Thomas Sweeney state the complete factual basis upon which you base your claim.”   The defendants' response was:  “Defendants state that their support rests on statements made to them by Thomas Sweeney and by the decedent as well as on account documents received in third party discovery.”   The court was not presented with the “account documents” referred to in the response.   The plaintiff also asked the defendants to state “the complete factual basis underlying or supporting your affirmative defense that the accounts at issue are subject to a constructive trust in favor of the defendants.”   The defendants' response was:  “The purported will, executed at around the same time as the account designations, appears on its face to be the product of fraud and undue influence.   In addition, the documents executed by the decedent are inconsistent with statements she made during her lifetime.”.  FN9. At the court's request, the plaintiff produced exhibits that were referred to relative to the motion for summary judgment but which had not been filed by either party in connection with their relative positions on the motion.   Specifically, the plaintiff provided the court with interrogatory responses by the defendants in which the defendants responded to the following question:  “6. In connection with your claim that the monies in the IRA accounts ․ originally belonged to Thomas Sweeney state the complete factual basis upon which you base your claim.”   The defendants' response was:  “Defendants state that their support rests on statements made to them by Thomas Sweeney and by the decedent as well as on account documents received in third party discovery.”   The court was not presented with the “account documents” referred to in the response.   The plaintiff also asked the defendants to state “the complete factual basis underlying or supporting your affirmative defense that the accounts at issue are subject to a constructive trust in favor of the defendants.”   The defendants' response was:  “The purported will, executed at around the same time as the account designations, appears on its face to be the product of fraud and undue influence.   In addition, the documents executed by the decedent are inconsistent with statements she made during her lifetime.”

Danaher, John A., J.