Barbara Kraul aka Basia Kraul v. Yvonne Pierzchalski aka Iwona Pierzchalski et al. (2014)

MEMORANDUM OF DECISION

This is a probate appeal pursuant to General Statutes § 45a–186(a) brought by the plaintiff Barbara Kraul from a January 31, 2013 decision by Probate Judge Andre Dorval, probate district # 8, finding that a will of Wojciech Wysocki dated January 10, 2012 met the Connecticut statutory requirements for execution.   The will was submitted by the defendant Yvonne Pierzchalski, named executor in the will.

The sole issues in the appeal were set forth in the December 10, 2013 Joint Trial Management Report to this court, page 2, and may be summarized as follows:  (1) Determining that the January will was witnessed as required by General Statutes § 45a–251, (2) Determining that Wysocki signed the January will in the presence of both witnesses, and (3) Determining whether the probate judge considered in his decision the improper execution of a subsequent March will by the two witnesses.

At the outset, the court notes that “[a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court.”  (Internal quotation marks omitted.)  Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 489–90, 854 A.2d 40 (2004).

The court makes the following findings of fact de novo:

1. Wysocki had surgery scheduled on January 11, 2012.

2. Wysocki met with his attorney, Paul Reynolds, prior to January 11, 2012 and discussed a hand-written document that he had drawn up explaining his intentions for a distribution of his assets by will.

3. Reynolds asked him at this meeting to provide him with a type-written version of his notes and to review and consider any other bequests to be made.

4. Subsequent to meeting with Reynolds, Wysocki had his employee Yvonne Pierzchalski type a document based on his notes.

5. Wysocki provided this document as well as his notes to Reynolds.

6. On January 10, 2012, one day before the surgery, Wysocki called Reynolds to ask whether his will was completed.   Reynolds stated that he had not completed the will and moreover, he was not in town.

7. Reynolds told Wysocki on January 10, 2012 to take the typed list and to sign it and have it witnessed by two people.   He also told Wysocki that it “wouldn't hurt” to have it notarized.

8. On the early evening of January 10, 2012, Yvonne Pierzchalski, who worked at Wysocki's business as a bookkeeper and assistant, organized the signing of Wysocki's will.   Using the list she had typed previously, she now typed at the bottom of the list “This will was prepared according to my will and it should be executed upon my death as specified above.”

9. Wysocki came to Pierzchalski's home.   He sat in the living room.   Two witnesses arrived, first Manny DaSilva and then R. Keith Larsen.   The will was on a coffee table.

10. Wysocki signed the will first and then had DaSilva and Larsen sign, in that order, all in each other's presence.

11. Wysocki and Pierzchalski then took the will to Peoples United Bank. There the language below the signatures was added in print:  “The executor of the will should be Yvonne Pierchalski” followed by Wysocki's signature again.

12. An employee of Peoples Bank then notarized the document.   The document as completed is Exhibit 2.

13. The plaintiff Kraul, Wysocki's surviving spouse, testified that both signatures of Wysocki on the purported will were genuine.

14. The plaintiff denied that the statement concerning the executor was written by Wysocki.   The court questions whether this is true because Pierzchalski's name is spelled wrong (lacking a “z”) in this declaration.   It is correctly spelled in the body of the will that was typed by Pierzchalski herself.

15. The subject January 10, 2012 will was provided to Reynolds.   He prepared a will in better legal form dated in March, Exhibit 3, but it was not executed in keeping with General Statutes § 45a–251.   The witnesses were the same, but they did not see Wysocki sign the will in their presence.

16. Wysocki died on April 26, 2012.

Connecticut's Statute of Wills, § 45a–251, provides:  “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the decedent and attested by two witnesses, each of them subscribing in the testator's presence;  but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the decedent situated in this state.”  “[O]ur [S]tatute [of Wills] amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution, or never, so far as the act of the testator is concerned.”   (Emphasis added;  internal quotation marks omitted.)  Hatheway v. Smith, 79 Conn. 506, 511, 65A, 1058 (1907).   The statute has, from its inception, been treated as an act that “permits a disposition of property by will upon compliance with the prescribed conditions.”  (Emphasis added.)  Id. Thus, to be valid, a will must strictly comply with the requirements of the statute.   See Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991);  see also Hatheway v. Smith, supra, 79 Conn. 511 (Statute of Wills “prohibitory and exhaustive”).   The statute is designed to “effectuate the policies of safeguarding titles and frustrating fraudulent claims.”  Starcez v. Kida, 183 Conn. 41, 45 n.2, 438 A.2d 1157 (1981).

The language of § 45a–251 plainly provides that for any testamentary instrument to be valid it must be subscribed by the decedent and attested by two witnesses in the decedent's presence.   The witnesses presented to this court by the proponent of the will establish that the procedural requirements of § 45a–251 have been met.

The plaintiff does not attempt to disprove this evidence directly, but rather questions the credibility of the proponent's witnesses.   She claims a “pall” has been cast over the procedure.   She first questions why Pierzchalski receives an inheritance when she is a “stranger” to the testator.   Pierzchalski, however, testified that she served Wysocki as a loyal employee and frequently hosted Wysocki at holiday times.   The witnessing of the will by Pierzchalski's boyfriend and another friend does not strike the court as odd as Pierzchalski was given the task by Wysocki of organizing a signing of the will at the last minute.

The witnesses to the January will testified without reservation and the court finds their testimony credible.   Their mistake in their signing the March will outside Wysocki's presence was not due to their dishonesty, but to Reynold's failure to obtain witnesses at the hospital where Wysocki was being treated.   Further, any mistakes made by Reynolds in March, did not affect his advice to Pierzchalski to execute Wysocki's list as a will in January.

The court has found as a fact that Reynolds only saw the list prior to the execution of the January will.   He saw the January will itself when it was fully executed.   The use of multiple pens was not pursued by the plaintiff as the only evidence before the court consisted of copies.   Finally, questions about the propriety of the sale of Wysocki's business do not affect the execution of the January will.

The court has considered the testimony of the witnesses and finds that the proponent, executrix, has met her burden.  “All that was necessary was that upon the whole proof it should reasonably appear more probable than otherwise that the instrument was executed in the manner required by the statute.”   Pope v. Rogers, 93 Conn. 53, 55, 104 A. 241 (1918).

This court therefore affirms the decision of the probate court.

BY THE COURT

Henry S. Cohn, J.

Cohn, Henry S., J.