Posts Tagged ‘Connecticut Appellate Court’

Woman’s Holographic Will Effective Despite State Law


It might seem odd that interstate problems in probate proceedings arise. After all, we have had 50 states and a handful of other jurisdictions gathered together in the United States for a half-century, and nearly that many for most of the two centuries before that. Shouldn’t differences in probate interpretations been ironed out by now?

Not necessarily. Perhaps it is a result of the fact that Americans are much more mobile today than they were even a few decades ago. Perhaps it is partly because of improvements in communication, letting interstate issues rise to the surface more readily. For whatever reason, a recent case involving Pennsylvania and Connecticut demonstrates that there can still be uncertainty about application of probate principles.

Rose and Mae (we’ll leave their last names out of this explanation), sisters, lived together in a house in Philadelphia for many years. They jointly owned their home, and they also were two of five joint owners of a farm in Connecticut. The farm was an inheritance, still held in the names of Rose, Mae, their brother Stephen, their sister Alyce, and a nephew (John) who had inherited his father’s share.

At Christmas time in 2000, while Rose was recovering from a stroke, Stephen sent a card to his sisters. He urged them to do some estate planning, since if they failed to do so “the lawyers would have a field day” and there estate taxes would be very high. He was wrong about that last assertion, incidentally, but that is not the point of our story.

In any event, Rose responded to her brother’s suggestion by dictating the language of a will to Mae’s son, who lived nearby. He wrote out her will, she made a few changes (adding her middle initial, for instance) and signed the document. She did not have it witnessed, and did not talk to an attorney about improving the quality of her will — she lived another six years, but did not update the document.

After Rose’s death (and after Mae entered a nursing home), Mae’s son initiated a probate proceeding in Pennsylvania, where Rose had lived and died. He sought admission of the handwritten document as a “holographic” will; Pennsylvania law recognizes such documents even if they are not signed by two witnesses. Initially John, Stephen and Alyce (Rose’s nephew and two siblings) objected to the Pennsylvania probate, but then they withdrew their objections. The will was admitted to probate in Pennsylvania.

Then Mae’s son filed an action in Connecticut to have the Pennsylvania probate proceeding recognized there. Such a proceeding is called an “ancillary” probate, meaning that it relies on the validity and rulings of the court in another state (the “domiciliary” state). John, Stephen and Alyce objected, arguing that Connecticut law does not permit holographic wills. They also argued that evidence showed that Rose was unduly influenced, and that Connecticut public policy did not favor wills such as Rose’s.

The Connecticut trial court ruled that the question was not whether Rose’s will would satisfy Connecticut law, but whether it had been found to be valid in Pennsylvania. Since it had, said the judge, the only issue was whether there was sufficient reason to challenge that ruling — finding none, the will was admitted and effectively transferred Rose’s interest in the inherited family farm to Mae’s family.

The Appellate Court of Connecticut agreed with the trial judge, and upheld his ruling (interestingly, only nephew John had appealed, not that it actually matters). The result: Rose’s holographic will, not itself valid in Connecticut, was effective to pass Connecticut property because it was valid in Pennsylvania and admitted to probate there.

The appellate judges noted that the common law rule had been different. Until the 1850s, when Connecticut had expressly adopted a statute recognizing the validity of wills which were valid when and where they were executed, a will would not be effective to pass Connecticut real property unless it met that state’s tests for validity. For the past 150 years, though, Connecticut had expressly approved out-of-state wills that met their local requirements for execution. Goodwin v. Colchester Probate Court, January 19, 2016.

Would Arizona courts reach the same conclusion? From the description, for instance, it appears that Rose’s holographic will would not meet Arizona’s requirements for admission to probate (Arizona is one of the states that, like Pennsylvania, recognizes holographic wills — but they have to meet Arizona’s requirements). If Rose had held real estate in Arizona, would her will have been effective? Although the precise question has not been addressed in Arizona, the result should be the same — though there is one 70-year-old Arizona case that might support an opposing argument.

Another point needs to be made: we are constantly surprised that people might leave their estates in such disorder as to trust handwritten notes which might be subject to dispute. In the six years after her brother suggested she ought to plan her estate, could Rose not find an hour to visit a lawyer to get good advice? For that matter, couldn’t she have undertaken that project sometime in the decades before her brother’s suggestion?

It is perhaps not too surprising that Rose might want to leave the bulk of her estate to her sister (with whom she lived) and her sister’s family. It is only surprising that she left her affairs in a condition that enhanced the likelihood that “the lawyers would have a field day,” and that she would create legal disputes among her family members. It would have been so easy to avoid that result.

Court Selection of Conservator Should Have Family Input

It is a recurring question in guardianship and conservatorship cases: when there is family conflict, or an allegation that a family member has taken advantage of an individual, who should the courts appoint to manage the person’s financial and personal affairs? Family should have priority, of course — but what should the courts do when family members have misbehaved?

We have written about earlier cases from other jurisdictions. Some examples: in a Wisconsin case in 2000, a court decided that a chosen family member should have priority even though it appeared that there might be conflicts with caregivers. A California court in 2004 removed a family member and appointed a private fiduciary as trustee and personal representative (executor) after family disputes ran up legal bills of almost four hundred thousand dollars. And a 1996 case in Arizona upheld the appointment of a professional private fiduciary over the objections of family members.

A recent Connecticut case adds a new element to the family-vs-professional-fiduciary discussion. It deals with how the court should select a private fiduciary once it becomes apparent that family members can not serve.

In the summer of 2007 Janet Follett decided that her mother, Zoe Ross (both names have been changed here), had declined to the point that appointment of a conservator was appropriate. Ms. Follett had held her mother’s power of attorney for quite some time — though the power was a so-called “springing” power of attorney, which was not effective until a doctor certified that Ms. Ross had become incapable of handling her own affairs. Ms. Follett had secured the appropriate doctor’s statement earlier in the year. She had in fact been handling her mother’s finances for some time before that — she had been a joint signer on Ms. Ross’s bank account since 2002, for example.

Ms. Follett and her sister did not see eye-to-eye when it came to handling their mother’s affairs. In the course of the court proceedings to secure a conservatorship, the court-appointed attorney for Ms. Ross agreed with Ms. Follett’s sister that it would be better if a neutral professional was appointed as conservator.

At a four-day hearing early in 2008, the judge heard testimony from nine different witnesses about Ms. Ross’s condition, the suitability of Ms. Follett to serve as conservator, and the size and nature of Ms. Ross’s estate. Later, the judge entered an order finding that Ms. Follett should be disqualified to serve as conservator. Instead, the judge appointed local lawyer Robert Mirto to serve as conservator. Mr. Mirto had not testified, had not been discussed in the hearing process, and had not been interviewed by the parties about his possible service as conservator.

Ms. Follett appealed, arguing that (a) she should have been appointed as conservator and (b) if she wasn’t going to be appointed, she should have been given a chance to interview the prospective conservator, to object to the individual and to suggest other candidates. The Connecticut Appellate Court agreed with her as to the second argument, but not as to the first.

The appellate court noted that there was evidence of at least some transactions that Ms. Follett should not have entered into using her authority as co-signer and agent on her mother’s power of attorney. In addition, both her sister and the court-appointed attorney argued for appointment of a non-family member as conservator. Given those circumstances, said the appellate judges, the lower court was justified in choosing a professional fiduciary over a family member.

But it was improper, agreed the appellate court, for the judge to simply choose a favorite fiduciary to serve. The history of probate court — and especially of Connecticut’s unusual probate system, relying as it does on part-time non-lawyer probate judges — made it important to strive for open and transparent administration of conservatorships. Recent Connecticut legislative changes had heightened the focus on those values, and had been part of an effort to change the culture of probate courts in the state. Given that background, the selection of a private fiduciary should be more open and concerned participants should be given an opportunity to participate in the process.

The appellate judges directed that the selection decision should be referred back to the probate court for a new hearing. The court’s decision not to appoint Ms. Follett was approved, but the appointment of Mr. Mirto was reversed and the probate court instructed to give the parties an opportunity to be heard on selection of a non-family member conservator. Falvey v. Zurolo, July 19, 2011.

What will the follow-up hearing look like? Nothing in the appellate opinion makes clear how it might work. The only indication is that Ms. Follett (and, for that matter, her sister and the court-appointed attorney) must be given notice of who is being considered, and an opportunity to challenge the appointment of that individual. The probate judge might well choose to appoint Mr. Mirto again, though any objections will need to be disposed of first.


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