Sharon Kunz v. Dale Sylvain et al. (2014)

MEMORANDUM OF DECISION

In this action, the plaintiff, Sharon Kunz, seeks an order invalidating her deceased father's, Joel Sylvain (Joel), 2005 amended inter vivos trust, which removed her as a beneficiary of his estate, and reinstating the terms of his original 1996 inter vivos trust.   She also seeks an accounting and money damages.   The plaintiff claims that the 2005 amendments to Joel's living trust are invalid because her father did not possess the necessary mental capacity to reasonably understand the nature and consequences of his actions and that the defendants, Dale and Kenneth Sylvain, her brothers, and Hilda Sylvain, her stepmother, unduly influenced Joel's actions.   Upon consideration of all of the credible evidence presented during a five-day court trial and the arguments and post-trial briefs of the parties, the court finds the issues for the defendants on both counts.

FINDINGS OF FACT

The court finds the following facts.

Joel Sylvain had three children;  Sharon Kunz, the plaintiff, and Dale and Kenneth Sylvain, who are defendants to this action.   The defendant Hilda was Joel's second wife who he married in 1993.   Hilda had previously been married to one of Joel's ten siblings and had been an aunt to Dale, Sharon and Kenneth, prior to marrying Joel.

On November 15, 1996, Joel executed “The Joel L. Sylvain Living Trust” (the 1996 Trust), for estate planning purposes.   When he executed the 1996 Trust, Joel was represented by the law firm Nirenstein, Horowitz and Associates in Hartford, which specialized in estate planning.   The 1996 Trust consisted of approximately forty pages, and contained twelve articles, each containing a number of subsections.   It named Joel Sylvain as trustor and trustee.   Joel's three grown children, Dale, Sharon and Kenneth, were identified in the 1996 Trust.   Section 4 named Hilda and Dale Sylvain as “Disability Trustees” and “Death Trustees” in the event that Joel became disabled or died.   The 1996 Trust made specific distributions upon Joel's death including giving all of his personal and real property to Hilda.   Under the 1996 Trust, Joel's remaining property would be distributed equally among Joel's three children, or if any of his children predeceased him, to their children.

The 1996 Trust was signed by Joel Sylvain as trustor and trustee.   Both signatures were acknowledged by a notary public.   Upon execution of the 1996 Trust, Joel's assets were then transferred to the trust, which Joel administered until he was deemed disabled and placed in a nursing home in 2007.   There is no claim in this case that 1996 trust was invalid, or that Joel lacked the requisite mental capacity to execute it.

On August 22, 2005, Joel executed a restatement of the 1996 Trust, with certain amendments (the 2005 Trust).   In executing the 2005 Trust, Joel was represented by the same law firm that represented him in the execution of his 1996 Trust, and in particular, Attorney Ed Vinhaterior.   Like the 1996 Trust, the 2005 Trust consisted of approximately forty pages and twelve articles, each with a number of subsections.   The two documents contained essentially the same provisions except that the 2005 Trust contained two primary amendments:  (1) to remove Hilda, who was 79, as one of the two death and disability trustees and to replace her with defendant Kenneth;  and (2) to exclude Sharon as a beneficiary of the trust.   Other minor changes were also made to the 2005 Trust document that made the document current with the law.   In particular, as to the plaintiff, Section 7 of the 2005 Trust identified Joel's three children, Dale, Sharon and Kenneth, but expressly and “intentionally” excluded Sharon and her descendants “from receipt of any portion of [his] Trust Estate.”   The 2005 Trust, as amended, was signed by Joel Sylvain as trustee and trustor, and Joel's signatures were acknowledged by a notary public and witnessed by Attorney Vinhaterior and his paralegal.

As was his and his firm's practice, Attorney Vinhaterior spoke to Joel alone, with only a paralegal present concerning the changes to his trust.   Joel told Attorney Vinhaterior that he wanted to exclude his daughter as a beneficiary of his trust estate, as well as remove Hilda as a death and disability trustee and replace her with Kenneth.   Attorney Vinhaterior spent at least one hour with Joel explaining and executing the necessary documents to accomplish Joel's wishes.   Attorney Vinhaterior had no concerns about Joel's mental state or capacity at the time Joel signed the documents nor did he believe that Joel was under any duress.   Had he believed either to be true, he would not have gone forward with the amendments.

In addition to executing the 2005 Trust on August 22, 2005, Joel executed other legal documents designating his son Kenneth as the conservator of his person and estate should he become incapable of managing his affairs, and naming Dale as his power of attorney.   He also executed a new will giving all of his property to his living trust as amended.   These documents were properly witnessed and acknowledged.   The witnesses to the 2005 last will and designation of conservators for future incapacity expressly attested that Joel signed those documents in their presence and that he was of sound mind memory and judgment and under no improper influence or restraint when he did so.   With respect to the power of attorney document, two independent witnesses acknowledged that Joel acknowledged that his action was “a free act and deed.”

Prior to amending his living trust, Joel told Hilda that he planned to take steps to remove her as a trustee upon his death or disability and exclude the plaintiff as a beneficiary.   Hilda had no concerns about being removed as a trustee, and as to Joel's decision to exclude the plaintiff from benefiting from his estate, Hilda told him:  “It's your money, do what you want.”   Hilda did not encourage or discourage Joel from excluding the plaintiff from the 2005 Trust.

Because Joel could no longer drive, prior to August 22, 2005, he called Dale and asked him to drive him to his attorneys' office in Hartford.   Dale agreed to drive his father to Hartford and did so on August 22, 2005.   Dale testified credibly that while he was with his father on August 22, 2005, Joel was in good physical and mental condition, was walking on his own, and was not confused or otherwise showing signs of dementia.   Dale believed that Joel knew the nature of his financial assets and his long-term health care policy, and that he knew Dale and his other relatives.   On the way to the law firm, Dale asked Joel why he was meeting with his attorney.   Joel responded:  “To clean up the mess Sharon made.”

Upon arriving at the law firm, Dale and Joel were ushered into an office with Attorney Vinhaterior and his paralegal.   Joel said:  “I want to write my daughter out.”   Dale was then escorted out of the lawyer's office and did not see his father again until after the legal matters were completed.   When Joel came out of the lawyer's office, he said to Dale:  “I fixed it, I wrote her out.”   Prior to that time, Dale had never suggested to his father that he remove the plaintiff as a beneficiary, and had never heard Hilda or Kenneth make that suggestion.

As to his physical and mental health, beginning in the late 1990s, Joel had a number of medical issues and was diagnosed with Parkinson's disease and later with Lewy Body Dementia, which is a type of dementia associated with Parkinson's disease.   Both conditions were deemed progressive in nature.   In 2005, Joel had been diagnosed with mild to moderate dementia.   As a result of these and his other physical conditions, Joel had certain physical limitations, which resulted in his inability to walk independently, write clearly, drive a car, or bathe or dress himself or manage his medications.

In 2005, Joel lived at home with Hilda, who cared for him.   Medical records and firsthand accounts established that at times in 2005, as a result of his dementia, Joel exhibited confusion, had memory lapses and hallucinations.   His family testified that he had “good days and bad days.”   Throughout 2005, the credible evidence presented established that on his good days, Joel knew his family members, including his three children, knew and understood his financial circumstances, was able to converse lucidly with his family members and read, understood and discussed television and newspapers stories and articles.

Joel was not isolated.   He had visitors at his home, left his apartment for errands and meals with Hilda, had access to and spoke on the phone and attended adult day care, where his daughter visited him even after she was estranged from the family.   He expressed his views, sometimes adamantly to his family members about financial and other matters, and the family followed his directives.   Throughout this time period, Joel managed and directed his own financial affairs, although he had assistance from Hilda and Dale, and remained trustor and trustee of his 1996 Trust.   He understood that his physical and mental health was deteriorating and took steps to ensure that his affairs were in order both as to his health care and finances, including executing a power of attorney and assigning a health care agent.   Medical records from 2005 confirm and reveal that although he was exhibiting symptoms of dementia, including confusion, he was also alert and aware, as well as able to process and understand information.

Joel's decision to exclude Sharon from his 2005 Trust stemmed from a family dispute over Joel's care and treatment, which pitted Sharon against the rest of the family, as well as Sharon's erratic behavior.   Joel had obtained a long-term health care policy which provided him approximately $500,000 in benefits.   After Hilda was hospitalized in early 2005, the three children became more involved in Joel's care.   At that time, Sharon owned a home health care agency, and provided a home health aide to care for Joel during the day.   The aide remained after Hilda returned home from the hospital.   The cost for these services was charged to and paid for by Joel's long-term healthcare policy.   In the spring of 2005, Joel became concerned that too much money was being spent on the home health aide, which he did not believe he needed, and that the principal balance on his long-term health care policy was being reduced too quickly.   A family meeting was held at Joel's residence to discuss the matter, during which Sharon became enraged and left.

After the family meeting, Joel decided to remove the plaintiff as his health care agent, and the services of her home nursing agency were terminated.   The plaintiff then became estranged from the family, but would often call them, intoxicated and belligerent, resulting in calls by family members to the police.   She also made a complaint to the state department of social services asserting that Joel was being neglected.   Although Sharon did not visit her father at his home after the dispute, she did visit him at the adult day care facility, where he spent a significant amount of time.

Eventually, in late 2006, Joel's conditions worsened and he was moved to a nursing home, where Joel understood that he would likely remain for the rest of his life.   At that point, Joel discussed with Dale and Ken distributions under the trust and told his sons he wanted Hilda to receive a cash payout of $50,000, even though the trust did not provide for such a payment.   The boys abided by their father's wishes.   Dale and Kenneth consulted with Joel's attorneys and became the disability trustees under the 2005 Trust.   Also with the assistance of Joel's attorneys, Dale and Ken determined how much money would be needed to cover Joel's health care needs during the remaining years of his life and those funds remained in the trust for that purpose.   The remaining money, minus the $50,000 provided to Hilda, was distributed evenly between Ken and Dale.

DISCUSSION

The plaintiff's third amended complaint is in two counts.   The first count asserts that at the time that Joel executed the amendments to his inter vivos trust on August 22, 2005, he lacked the requisite mental capacity, and as a result the amendments are invalid.   The second count asserts that Joel's decision to amend his trust and exclude Sharon as a beneficiary was unduly influenced by Hilda, Dale and Kenneth.   Each count is considered below.

A. Count One—Lack of Capacity

The plaintiff claims that at the time Joel executed the 2005 Trust he suffered from a number of serious physical and mental conditions that resulted in his inability to understand the nature, extent and consequences of his decision to amend his living trust.   As a result, the plaintiff claims that the 2005 Trust is invalid, making the 1996 Trust the operative trust document.   The defendants assert that the evidence establishes that Joel had the requisite mental capacity to understand the nature of his act, specifically his decision to exclude his daughter as a beneficiary of his trust.   The court finds that the credible evidence produced at the trial established that in August 2005, Joel had the requisite mental capacity to amend his living trust to remove the plaintiff as a beneficiary.

The law presumes a person's competence or sanity in the performance of legal acts.  Stanton v. Grigley, 177 Conn. 558, 564, 418 A.2d 923 (1979);  see also Hayes v. Candee, 75 Conn. 131, 52 A. 826 (1902);  Deroy v. Estate of Baron, 136 Conn.App. 123, 128, 43 A.3d 759 (2012);  In re Sanzo's Appeal from Probate, 133 Conn.App. 42, 51, 35 A.3d 302 (2012).  “In considering the matter of mental incompetency, it must be acknowledged that ‘[m]ental impairments admit of a wide variety of conditions of varying degrees of severity, depending upon the particular case.’   53 Am.Jur.2d 460, Mentally Impaired Persons § 1 (1996).”  Twichell v. Guite, 53 Conn.App. 42, 47, 728 A.2d 1121 (1999).   A person may have “sufficient mental capacity to understand the nature and effect of a deed of real estate, and at the same time be unable to comprehend the more complicated and unusual transaction of an assignment of stock coupled with a deed of trust.”  McCue v. McCue, 100 Conn. 448, 457, 123 A. 914 (1924).

The parties agree that this is not a will contest, but a challenge to the validity of the 2005 Trust, which is in the nature of a contract.   Although the trust was a contract and not a will, the amendment at issue—essentially disinheriting the plaintiff—was testamentary in nature.   Neither the court nor the parties have located any Connecticut Supreme or Appellate Court cases on point concerning the proper capacity standard for the court to apply under such circumstances.

One Connecticut superior court has determined that:  “the mental capacity to make a will may be different from the mental capacity to make an inter vivos trust agreement.   Certainly some inter vivos trusts are far more complicated documents than some simple wills, and these documents would require that the settlor have a higher degree of mental capacity and understanding.”   Whittemore v. Neff, Superior Court, judicial district of Windham, Docket No. 064348 (June 11, 2001, Foley, J.) [29 Conn. L. Rptr. 651].   In Whittemore, the court concluded that a “higher degree of mental capacity may be required to execute an inter vivos trust than is required to execute a will.”  Id.¹

Other states have approached the matter differently.   See Maimonides School v. Coles, 71 Mass.App.Ct. 240, 881 N.E.2d 778 (2008) (court properly applied standard for testamentary capacity and not more demanding test for contractual capacity to an amendment to an inter vivos trust because amendment was not complex and the inter vivos trust comprised the “integrally related components of a single testamentary scheme”);  Andersen v. Hunt, 196 Cal.App.4th 722, 731 (2011) (because the trust amendment was simple and of a testamentary nature, the proper standard of review of the decedent's capacity, was the test for testamentary capacity).

In Connecticut, “[t]o 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.”   (Internal quotation marks omitted.)  Deroy v. Estate of Baron, supra, 136 Conn.App. 128–9, quoting Sanzo's Appeal from Probate, 133 Conn.App. 42, 50, 35 A.3d 302 (2012).  “An individual may possess the mental capacity necessary to make a will although incapable of transacting business generally.”  Id. Turner's Appeal, 72 Conn. 305, 317, 44 A. 310 (1899) (“In this State one may make a valid will though mentally incapable of transacting business generally”).

To make a valid trust, according to the Restatement of Trusts, “A person has capacity to create a trust by transferring property inter vivos in trust to the extent that he has capacity to transfer the property inter vivos free of trust.”   1 Restatement (Second) Trusts, Capacity of Settlor, Transfer of Inter Vivos in Trust, § 19, p. 64 (1959).   In Connecticut, “ ‘The test of [a grantor's] mental capacity to make the deeds ․ was whether at the time of executing them he possessed “understanding sufficient to comprehend the nature, extent and consequence” of them.   1 Swift Dig. 173;  Hale v. Hills, 8 Conn. 39, 44 [1830].’  Nichols v. Nichols, 79 Conn. 644, 657, 66 A. 161 (1907).”   Twichell v. Guite, supra, 53 Conn.App. 50.

The court does not have to decide what precise standard of capacity to apply to that of testamentary or contract, because it finds that the credible evidence adduced at trial clearly established that, under either standard, Joel had the requisite mental capacity to understand the nature and consequences of his decision to amend his trust and to remove the plaintiff as a beneficiary.

The parties disagree as to what precisely Joel needed to understand about the 2005 Trust.   The plaintiff claims that Joel needed the requisite mental capacity to understand the 2005 Trust in its entirety, whereas the defendants claim Joel needed only to understand the nature and consequences of the amendments to the trust and in particular, removing the plaintiff as a trustee, leaving his sons to share his assets.   The court agrees with the defendants.

In 2005, Joel amended the 1996 Trust in only two notable ways, (1) to remove his elderly wife as a trustee and replace her with his son, defendant Kenneth;  and (2) to remove his daughter, the plaintiff, as a beneficiary, leaving his two sons to share the remainder of his estate.   The remainder of the trust document, except for some minor charges to update the trust to conform to changes in the law, remained the same as the 1996 Trust.   The plaintiff does not claim that Joel lacked the requisite mental capacity to execute the original 1996 trust, which was a lengthy estate planning document containing numerous provisions.   In fact it is that document which the plaintiff seeks to have the court enforce.   Since Joel's decision to amend his trust involved two significant changes, with the remainder of the document staying essentially the same, the court finds it was only necessary for him to have the capacity to understand the extent nature and consequences of those two actions.

Although the decision to disinherit a child or substitute a trustee is of significant consequence, it is not particularly complex.   To make such decisions, Joel needed to understand his financial condition, know and recognize his family members and understand that his daughter would not receive any of his estate.   See Appeal of Gilman, 115 Conn. 724, 161 A. 845 (1932) (holding that in determining whether testator had the requisite mental capacity, the fact finder should consider whether testator had sufficient mental capacity to know the business in which he was engaged, the natural objects of his bounty, and the estate of which he was possessed).   Even under the higher contract standard for capacity, the court finds that Joel had the requisite mental capacity to understand his decisions, and in particular, his decision to disinherit the plaintiff.

The credible evidence produced at trial established that in the months both proceeding and following August 22, 2005, Joel had good days and bad days.   Although he had been diagnosed with dementia at that time, that alone is not sufficient to prove his incapacity.   See Dripps v. Meader, 94 Conn. 559, 560, 109 A. 808 (1920) (finding that “[m]ere ․ weakening judgment, failing memory or mind, are not necessarily inconsistent with testamentary [capacity].   One's memory may be failing and yet his mind not be unsound.   One's mental powers may be weakening, and still sufficient testamentary capacity remain”).

Medical records and reports of Joel's credible family members established that in the months immediately preceding and following the execution of the 2005 Trust, Joel had good days during which he was alert, communicative, knew his family, understood his finances and was able to make decisions.   Although he had dementia, the condition had not yet progressed to the point that he was fully incapacitated.   Although Joel needed significant assistance from his family, he was, for the most part, able to manage and direct his affairs.

Moreover and importantly, on the day that he executed the 2005 Trust, Joel had one of his good days.   Firsthand accounts of Joel's mental state on August 22, 2005 from his son and attorney, established that Joel was not confused in any way and did not have any hallucinations or other signs of his dementia.   Joel's attorney met with him for an hour and went over the documents with him.   Attorney Vinhaterior had no concerns about Joel's ability to understand the nature, extent and consequences of his actions or decision to amend his trust.   The signing of the 2005 Trust and other documents that day were properly notarized and witnessed by disinterested persons.

Accordingly, the court concludes that the plaintiff has failed to establish that Joel lacked the requisite mental capacity to understand the nature and consequences of his decision to amend his trust and in particular to remove the plaintiff as a beneficiary or to remove Hilda as a trustee.

2. Count Two—Undue Influence

In count two of the complaint the plaintiff claims that Joel's decision to remove her as a trust beneficiary was a result of the undue influence on the part of the defendants.

Undue influence is “the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control.”   (Internal quotation marks omitted.)  Gengaro v. City of New Haven, 118 Conn.App. 642, 649, 984 A.2d 1133 (2009).   There are four elements to an undue influence claim:  “ ‘(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 ․ Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction ․ consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth ․ active solicitations and persuasions by the other party, and the relationship of the parties.’  (Citations omitted;  internal quotation marks omitted.)  Pickman v. Pickman, 6 Conn.App. 271, 275–76, 505 A.2d 4 (1986).”  Id., 649–50;  Dinan v. Marchand, 279 Conn. 558, n.1, 560, 908 A.2d 201 (2006).   Direct evidence of undue influence is not necessary provided there are material facts proven from which reasonable inferences could be made to conclude that there was undue influence.   Larocque v. O'Connor, 90 Conn.App. 156, 166, 876 A.2d 1229 (2005));  see also Salvatore v. Hayden, 144 Conn. 437, 440, 133 A.2d 622 (1957).   The party asserting undue influence generally has the burden to prove it, by a fair preponderance of the evidence.  Hills v. Hart, 88 Conn. 394, 396 (1914).   Hills v. Hart, 88 Conn. 394, 396 (1914);  see also Pepin v. Ryan, 133 Conn. 12, 47 A.2d 846 (1946);  Stanton v. Quigley, 177 Conn., 558 at 564, 418 A.2d 923 (1979);  Larocque v. O'Connor, 90 Conn.App. 156, 165–66, 876 A.2d 1229 (2005).   Moreover, “[t]here must be proof not only of undue influence but that its operative effect was to cause the testator to make a [devise] which did not express his actual testamentary desires.”  Hills v. Hart, 88 Conn. 394, 402, 91 A. 257 (1914).

“The distinction between a legatee who is a child and one who is a stranger, being the religious adviser, business agent, attorney, or physician of the testatrix, is marked.   The law casts the burden of showing the absence of undue influence upon the legatee holding such fiduciary relation;  otherwise the burden of proving undue influence remains with the party alleging it.”  Id. “Confidence, close and continuing, should exist between parent and child.   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.   Lockwood v. Lockwood, 80 Conn. 513, 523, 69 A. 8;  Mooney v. Mooney, 80 Conn. 446, 452, 68 A. 985;  Dale's Appeal, 57 Conn. 127, 144, 17 A. 757.”  Id.²

The court finds that the plaintiff has failed to present credible evidence to establish her claim of undue influence, and failed to establish any material facts from which reasonable inferences could be drawn that Joel's decision to remove the plaintiff as a beneficiary to his will was the result of undue influence by the defendants.   The court reaches this conclusion based on the following findings.

Joel had reasons to exclude the plaintiff as a beneficiary of his estate, including the plaintiff's estrangement from the family due to her disagreement with the rest of the family over Joel's healthcare, and her erratic and drunken behavior toward the family.   See, e.g. Gervais v. Lavallee, Superior Court, judicial district of New London, Docket No. 540772 (October 22, 1998, Hurley, J.T.R.) (holding that the decedent “was clearly of sound mind and in good health at the time he execute his ․ will.   Although he specifically excluded his son ․ from the will, for reasons he did not disclose, that does not diminish his capacity.   There was animosity between them ․ Therefore, the presumption of lack of testamentary capacity that arises when the natural object of the testator's bounty is excluded, is defeated”);  Neff v. Whittemore, Superior Court, judicial district of Tolland, Docket No. CV–0061006–S (August 2, 2000, Sferrazza, J.) (holding that “the revised distribution scheme actually confirms the testator's awareness of the persons who were the natural objects of his bounty.   The exclusion of bequests to three of his children was motivated, in part, by the testator's resentment toward those of his offspring who displayed, in his opinion, disrespect for their parents”).

When the 2005 Trust was executed on August 22, 2005, Joel was represented by experienced counsel who, with a paralegal present explained the nature of the amendment to Joel. Based on his conversations with Joel, he did not believe that Joel was executing the amendments under duress.   The 2005 Trust document was acknowledged by a notary public.  “ ‘An acknowledgement is the formal declaration, before an authorized official, by the person who executed an instrument that it is his free act and deed.’  Commercial Credit Corp. v. Carlson, 114 Conn. 514, 517, 159 A. 352 (1932).”  Twichell v. Guite, supra, 53 Conn.App. 42.

Joel was not a person subject to influence regarding his financial affairs and estate planning.   From all accounts, Joel was determined and head strong, and if anything, his family took direction from him.   Although he was suffering from significant physical and mental conditions in the summer of 2005, as the court found supra, he was not mentally incapacitated.   Although due to his medical conditions, Joel needed a great deal of assistance from his family in his day to day activities, including writing checks, driving, bathing and dressing, in the spring and summer of 2005, it was Joel that was making decisions related to his health care, finances and estate planning, and the defendants who carried out his wishes.   The defendants assisted Joel by making deposits, writing checks, driving him places and took direction from him.

There was no credible evidence that the defendants had dispositions to exert undue influence.   In fact the opposite was true.   For example, Dale testified that at the plaintiff's suggestion in the spring of 2005, he raised the issue with Joel about making certain distributions of the trust to avoid the look back provisions for Medicare or to assist the grandchildren with college.   Joel appeared aggravated by these suggestions and told Dale, “you will get [the money] when you get it.”   Dale was embarrassed by his father's reaction, and did not bring up the subject again.   Although Hilda paid the bills, she was passive when it came to Joel's financial affairs and estate planning decisions.   Similarly, Kenneth, the youngest of Joel's three children, appeared reluctant to be involved in his father's affairs at all, but only did so because his father asked him.   Finally, Dale and Kenneth willingly followed Joel's wishes to provide Hilda with a $50,000 cash payment from the trust, even though the trust did not provide for cash distributions for her.

Joel was not isolated.   Although his activities were limited by his physical and mental infirmities, he had visitors, went to adult day care and to medical appointments, and had access to the phone and used it.   All of the defendants had access to Joel. Hilda, of course, lived with Joel. Dale and Ken visited and called him at his home on a regular basis.   Although the plaintiff was estranged from her brothers, she testified that she visited Joel regularly at the adult day care center.

There was no credible evidence presented that anyone other than Hilda was even aware that Joel intended to remove the plaintiff as a beneficiary prior to August 22, 2005, and no credible evidence that the defendants attempted to influence Joel to make this decision.   Although Hilda paid the bills and wrote out the check for her and Joel's household, she did not direct Joel's financial or estate planning decision.   She testified credibly that she left that decision to remove the plaintiff as a beneficiary up to Joel. Dale only found out about Joel's decision while driving him to his attorney's office.

Accordingly, the court concludes that the plaintiff has failed to prove that Joel's decision to remove the plaintiff as a beneficiary to his 2005 Trust was the result of defendants' undue influence of Joel.³

CONCLUSION

The court finds the issues for the defendants on counts one and two of the complaint.   Accordingly, judgment shall enter for the defendants.

Cobb, J.

FOOTNOTES

FN1. In a case involving eligibility of Title XIX medical assistance benefits, the Appellate Court distinguished wills and trusts stating “A will is a unique kind of transfer, with special rules associated with the proper execution and administration thereof ․ The creation of a revocable trust is not a testimentary act and need not conform to the requirements of the common law statute of wills.”  (Internal quotation marks omitted.)   Bezzine v. Department of Social Services, 49 Conn.App. 432, 443, 715 A.2d 791 (1998)..  FN1. In a case involving eligibility of Title XIX medical assistance benefits, the Appellate Court distinguished wills and trusts stating “A will is a unique kind of transfer, with special rules associated with the proper execution and administration thereof ․ The creation of a revocable trust is not a testimentary act and need not conform to the requirements of the common law statute of wills.”  (Internal quotation marks omitted.)   Bezzine v. Department of Social Services, 49 Conn.App. 432, 443, 715 A.2d 791 (1998).

FN2. The court rejects the plaintiff's assertion that the burden of proof on this claim shifts to the defendants because they had fiduciary relationships with Joel by virtue of the fact that they were beneficiaries of the trust and that Dale and Kenneth were Joel's power of attorney for financial matters as well as his death and disability trustees under the trust.   The plaintiff has cited no precedent to support her contention that a fiduciary relationship is established by virtue of being a beneficiary to a trust or a disability or death trustee.   Although Dale and Kenneth were designated by Joel as his attorney in fact and his successor attorney in fact, respectively, that fact alone is not sufficient to shift the burden here particularly under the circumstances here where there is no evidence that Dale or Ken exercised their power of attorney in relation to Joel's decision to amend his trust.   Neither Dale nor Ken were present in the room when the 2005 Trust documents were executed, and Joel was able to, and did, sign the 2005 trust himself, as Trustor and Trustee..  FN2. The court rejects the plaintiff's assertion that the burden of proof on this claim shifts to the defendants because they had fiduciary relationships with Joel by virtue of the fact that they were beneficiaries of the trust and that Dale and Kenneth were Joel's power of attorney for financial matters as well as his death and disability trustees under the trust.   The plaintiff has cited no precedent to support her contention that a fiduciary relationship is established by virtue of being a beneficiary to a trust or a disability or death trustee.   Although Dale and Kenneth were designated by Joel as his attorney in fact and his successor attorney in fact, respectively, that fact alone is not sufficient to shift the burden here particularly under the circumstances here where there is no evidence that Dale or Ken exercised their power of attorney in relation to Joel's decision to amend his trust.   Neither Dale nor Ken were present in the room when the 2005 Trust documents were executed, and Joel was able to, and did, sign the 2005 trust himself, as Trustor and Trustee.

FN3. Because the court has found the issues on the merits for the defendants, it is not necessary to address the defendants' special defenses that this action is barred by laches and the applicable statute of limitations..  FN3. Because the court has found the issues on the merits for the defendants, it is not necessary to address the defendants' special defenses that this action is barred by laches and the applicable statute of limitations.

Cobb, Susan Quinn, J.