Lamberton v. Lamberton ( 2020 )

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LANCE LAMBERTON ET AL. v. REARDEN
LAMBERTON ET AL.
(AC 42587)
Elgo, Bright and Flynn, Js.
Syllabus
The plaintiffs appealed to this court from the judgment of the Superior
Court, which affirmed the order of the Probate Court awarding the
defendant L, the nominated executor of the estate of the decedent, A,
legal fees incurred in the defense of A’s will, pursuant to statute (§ 45a-
294). The plaintiffs, who are the son and grandson, respectively, of A,
objected to L’s petition to admit A’s will to probate. On appeal to this
court, the plaintiffs claimed that the Superior Court erred in finding that
a nominated executor in a will not yet admitted to probate has standing
to seek reimbursement of legal fees prior to being appointed executor
by the Probate Court and abused its discretion in awarding legal fees
prior to a hearing on the merits of an objection to the will submitted
to probate. Held:
1. The Superior Court properly found that L had standing as the nominated
executor to request legal fees prior to the admission to probate of A’s
will: pursuant to § 45a-294, the Probate Court had jurisdiction to award
an executor expenses incurred in defending a will, even if that will
was not admitted to probate; moreover, the plaintiffs failed to identify
precedential authority supporting their contention that an executor must
be appointed by the Probate Court in order to have standing to seek
reimbursement of legal fees, and the plaintiffs’ suggestion that a nonap-
pointment would strip the nominated executor of the right to seek
reimbursement of fees would render the critical language of § 45a-294
meaningless; furthermore, L had fiduciary duties both to file the will
with the Probate Court and to endeavor to procure its admission and,
thus, L’s duties were not inferior to those of an executor appointed by
the Probate Court.
2. The Superior Court did not abuse its discretion in awarding legal expenses
to L in the amount awarded by the Probate Court; the plaintiffs failed
to provide notice to the Superior Court, either in their stipulated facts
or their reasons for the appeal, that they were challenging the amount
of fees the Probate Court had issued, nor was the Superior Court
apprised that the plaintiffs sought a de novo hearing on the reasonable-
ness of such fees.
Argued January 8—officially released May 5, 2020
Procedural History
Appeal from an order of the Probate Court for the
district of Stamford awarding legal fees to the named
defendant, brought to the Superior Court in the judicial
district of Stamford-Norwalk and tried to the court,
Hon. Kenneth Povodator, judge trial referee; judgment
affirming the Probate Court’s order, from which the
plaintiffs appealed to this court. Affirmed.
Terence J. Gallagher, with whom, on the brief, was
Patrick L. Poeschl, for the appellants (plaintiffs).
Paul Greenan, for the appellee (named defendant).
Opinion
FLYNN, J. The plaintiffs, Lance Lamberton and Roark
Lamberton-Davies, appeal from the Superior Court’s
judgment in a de novo appeal from an order of the
Probate Court for the district of Stamford awarding the
defendant Rearden Lamberton,1 the nominated execu-
tor,2 legal fees incurred in the defense of a will in Pro-
bate Court, pursuant to General Statutes § 45a-294. The
plaintiffs claim that the Superior Court (1) erroneously
found that a nominated executor in a will not yet admit-
ted to probate has standing to seek reimbursement of
fees prior to being appointed as an executor by the
Probate Court while a will contest is pending and (2)
abused its discretion in awarding the fees prior to the
conclusion of a hearing on the merits of an objection
to the writing submitted to probate.
The Superior Court concluded that, ‘‘to the extent
that the parties effectively were seeking a declaratory
ruling as to the ability or standing of a [nominated]
executor to seek interim reimbursement of expenses
incurred in defending a will submitted to probate, prior
to its admission to probate, and the ability of the [nomi-
nated] executor to seek an allowance against future
expenses for that same purpose, all under the provi-
sions of . . . § 45a-294, the court has determined that
notwithstanding the ongoing nature of the proceeding,
the [nominated] executor has standing and a right to
seek such reimbursement on an interim basis.’’ The
court further found that ‘‘the [nominated] executor also
has a right to seek an allowance against future expenses
for that same purpose.’’ The court also decided that
‘‘the plaintiffs either can be perceived to have conceded
(not challenged) the issue of reasonableness, or can be
deemed to have waived any claim of unreasonableness’’
of the legal fees awarded.
We conclude that the court properly decided that
§ 45a-294 permits the award of legal fees as a reasonable
expense incurred by a nominated executor to defend
a will prior to admission of the will to probate. We
further conclude that, in light of the reasons for appeal
to the Superior Court and the paucity of the stipulation
of facts, the court properly decided that the plaintiffs
waived or conceded the issue of their reasonableness.
The parties agreed to the following stipulation of
undisputed facts for the purposes of appeal to the Supe-
rior Court from the decree of the Probate Court: ‘‘Adelle
Lincoln Alessandroni died on December 23, 2016, and
was domiciled in the [judicial] district of [Stamford-
Norwalk] . . . at the time of her death. . . . [The
defendant] is Adelle Alessandroni’s grandson, and is the
executor named in her will. . . . On or about January
6, 2017, The Greenan Law Firm, LLC, on behalf of [the
defendant], filed a petition with the Stamford Probate
Court to admit Adelle Alessandroni’s will to probate.
. . . Lance Lamberton, who is the son of Adelle Ales-
sandroni, objected to the will on various grounds. . . .
Roark Lamberton-Davies, who is the son of Lance Lam-
berton and grandson of Adelle Alessandroni, also joined
in making objections to the will. . . . Due to these
objections, [Adelle] Alessandroni’s will has not yet been
admitted, and litigation remains ongoing. . . . No
other wills have been submitted to the Probate Court.
. . . On August 14, 2017, [the defendant], through coun-
sel, filed a motion for payment of attorney’s fees and
costs associated with defending the will in the Probate
Court. That motion was subsequently amended on Sep-
tember 12, 2017, to seek approval of $18,058 for all
attorney’s fees and costs to date. . . . On or about
August 15, 2017, [the defendant], through counsel, also
filed a motion for a trial retainer, seeking $35,000 to
defend the will in the pending will contest. . . . On or
about November 14, 2017, after a hearing that was not
on the record, the Stamford Probate Court, Fox, J.,
ordered the payment of $18,058 in attorney’s fees and
a $12,000 trial retainer to be paid to The Greenan Law
Firm, LLC, from assets of the estate.’’
The following procedural history also is relevant to
our analysis of this matter. On December 13, 2017, the
plaintiffs appealed to the Superior Court from the pro-
bate order granting the fees. Because the Probate Court
proceedings were not conducted on the record, the
appeal to the Superior Court was held de novo.3 On
January 23, 2019, the court, Hon. Kenneth Povodator,
judge trial referee, affirmed the Probate Court’s order,
awarding the defendant ‘‘$18,058 as reimbursement for
legal expenses incurred between January 3, 2017 and
September 12, 2017,’’ and ‘‘$12,000 to be used as a
retainer against future legal expenses to be incurred in
pursuing admission of the will to probate, such sums
to be paid out of the assets of the estate.’’ The plaintiffs
then filed this appeal to this court on February 11, 2019.
We note that, at the time of this decision, the underlying
will contest in the Probate Court is still ongoing.4 A
temporary administrator has been appointed by the Pro-
bate Court, for limited purposes, pending the outcome
of some of these issues.
I
We first address the plaintiffs’ claim that the court
erred in holding that the defendant had standing to seek
reimbursement of legal fees. They argue that, because
the defendant had not yet been appointed as executor
by the Probate Court, he did not have the right to seek
payment of his legal fees pursuant to § 45a-294. We
disagree.
A trial court’s determination of whether a party has
standing ‘‘is a conclusion of law that is subject to ple-
nary review on appeal.’’ (Internal quotation marks omit-
ted.) Heinonen v. Gupton, 173 Conn. App. 54, 59, 162
A.3d 70, cert. denied, 327 Conn. 902, 169 A.3d 794 (2017).
‘‘We conduct that plenary review, however, in light of
the trial court’s findings of fact, which we will not over-
turn unless they are clearly erroneous.’’ (Internal quota-
tion marks omitted.) Id. Additionally, the issues raised
in this appeal necessarily involve statutory interpreta-
tion, for which our review also is plenary. See, e.g.,
Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532
(2012).
Resolution of the standing issue rests on the interpre-
tation of § 45a-294, the statutory provision that provides
for reimbursement of just and reasonable expenses in
a will contest. Section 45a-294 (a) provides: The court
of probate having jurisdiction of the testate estate of
any person shall allow to the executor his just and
reasonable expenses in defending the will of such per-
son in the probate court, whether or not the will is
admitted to probate.’’ The parties disagree on how the
term ‘‘executor’’ should be interpreted, as no statutory
definition is provided either in subsection (a) of § 45a-
294 or in any other surrounding, relevant statutory pro-
vision. The plaintiffs argue that a nominated executor
of a contested will does not constitute an executor for
purposes of the statute. The defendant, on the other
hand, argues that the distinction between a nominated
and a court-appointed executor is immaterial for pur-
poses of the expense reimbursement statute. For the
reasons that follow, we agree with the defendant.
Our Supreme Court has explained that ‘‘[t]he process
of statutory interpretation involves a reasoned search
for the intention of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. In seeking to determine
that meaning, we look to the words of the statute itself,
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter.’’ (Internal quotation marks omitted.)
Fleet National Bank’s Appeal from Probate, 267 Conn.
229, 237–38, 837 A.2d 785 (2004). ‘‘A fundamental tenet
of statutory construction is that statutes are to be con-
strued to give effect to the apparent intention of the
lawmaking body. . . . Where the words of a statute
are clear, the task of a reviewing court is merely to
apply the directive of the legislature since where the
wording is plain, courts will not speculate as to any
supposed intention because the question before a court
then is not what the legislature actually intended but
what intention it expressed by the words that it used.
. . . When two constructions [of a term] are possible,
courts will adopt the one which makes the statute effec-
tive and workable . . . . [Further, a] statute should be
construed so that no word, phrase or clause will be
rendered meaningless.’’ (Citations omitted; internal
quotation marks omitted.) Verrastro v. Sivertsen, 188
Conn. 213, 220–21, 448 A.2d 1344 (1982). General Stat-
utes § 1-2z instructs: ‘‘The meaning of a statute shall,
in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered.’’
The plaintiffs argue that the text of § 45a-294 creates a
plain and unambiguous meaning of the term ‘‘executor’’
that requires that the individual officially be appointed
by the Probate Court, and, when there is an objection to
the will, such appointment can be made by the Probate
Court only after fully considering that objection.
Because the objection in this case had not yet been
resolved, the plaintiffs argue that the defendant cannot
be deemed an executor with standing to seek legal fees
for purposes of § 45a-294. The plaintiffs fail to cite to
any precedential authority, and we are unaware of any,
that directly supports their contention that an executor
must be appointed by the Probate Court in order to
have standing to recover expenses. Because the term
‘‘executor’’ is not defined by the text of the statute itself,
the plaintiffs urge us to ascertain the meaning of the
term ‘‘executor’’ in light of related statutes, namely,
those that invoke the role of a fiduciary.5
The plaintiffs rely on the definition of ‘‘fiduciary’’ set
forth in other sections of title 45a of the General Statutes
governing probate courts and procedure, including Gen-
eral Statutes §§ 45a-315 and 45a-340.6 We do not pre-
sume that the plaintiffs are arguing that these statutes
are invoked or are controlling here; instead, we inter-
pret their argument to be that they should aid in the
interpretation of the term ‘‘executor’’ in the context at
issue in the present matter. The plaintiffs focus on the
nature of the roles that are included within the defini-
tions of a ‘‘fiduciary’’ for purposes of the other stat-
utes—i.e., administrator of an estate, conservators,
trustees—and suggest that, as compared to those other
roles, that of a nominated executor falls short in the type
of responsibilities involved. The plaintiffs, referring to
those other fiduciaries, argue: ‘‘These people have all
been authorized to protect a person or a fund. In turn,
they are responsible to the Probate Court in an account-
ing or report. Here the nominated executor does not
have that level of responsibility or accountability.’’ The
plaintiffs also look outside of the probate statutes and,
citing General Statutes § 52-555, assert that ‘‘in other
contexts, the definition of who may act on behalf of
an estate has been very narrow and strictly applied.’’
Essentially, the plaintiffs attempt to assert a policy argu-
ment that the defendant was not the type of individual
whom § 45a-294 intended to protect. During oral argu-
ment before this court, the plaintiffs made clear their
position that, as a nominated executor, the defendant
did not have the same fiduciary responsibilities as an
appointed executor. We are not persuaded.
The plaintiffs highlight the possibility that, due to the
objections pending in the Probate Court, the defendant
may never be appointed as the executor of the estate.
The plaintiffs fail to explain how this would deprive
the defendant of the opportunity to invoke § 45a-294.
The suggestion that a potential nonappointment would
strip the nominated executor of his right to seek reim-
bursement of legal fees would render the critical portion
of the statute—‘‘whether or not the will is admitted
to probate’’—meaningless. The language of the statute
explicitly provides that, even if the defense of the will
is unsuccessful and the will is not admitted to probate,
the nominated executor who defended the will, none-
theless, is entitled to reimbursement of legal fees. As
the court succinctly wrote, ‘‘[t]he contingency [the
plaintiffs] identify, then, is one specifically anticipated
and addressed by the statutory language.’’ We agree
with the Superior Court’s well reasoned analysis regard-
ing this particular issue. ‘‘An executor can be appointed
by the Probate Court only after the will designating
that individual/entity as executor has been admitted to
probate. Therefore, admission of the will is effectively
a condition precedent to appointment of the executor.
If there is a successful challenge to the will being admit-
ted to probate, there never will be an executor
appointed under the will. How then, can [t]he court of
probate having jurisdiction of the testate estate of any
person . . . allow to the executor his just and reason-
able expenses in defending the will of such person in
the Probate Court if the will is not (has never been)
admitted to probate? Under the plaintiffs’ analysis, such
an ‘executor’ would never have standing because such
individual would never have been appointed
‘executor.’ ’’
The plaintiffs’ proposition also ignores the fact that,
during the pendency of the proceedings, the defendant
actively had been defending the will and expending the
necessary legal fees in order to do so. The defendant
argues that, as a nominated executor, he had a fiduciary
duty to offer and to defend the decedent’s will in the
admissions process even though he was not yet offi-
cially appointed by the Probate Court. During ques-
tioning from the appellate panel, the plaintiffs presented
an unpersuasive argument for why and how the defen-
dant’s role as a nominated executor differed from that
of an individual who may have been appointed by the
Probate Court as executor.7 The plaintiffs made a gen-
eral contention that a nominated executor may choose
to decline the nomination and, therefore, not have any
fiduciary responsibilities, but they failed to explain
how—in circumstances like those before us, where the
nominated individual has accepted the nomination and
taken on the corresponding responsibilities of
defending the will—the nominated executor’s responsi-
bilities are inferior to those of an executor appointed
by the Probate Court.
It is ‘‘the duty of the executor named in a will to
present it for probate and endeavor to procure its admis-
sion, and this includes a right of appeal from a decision
of the [c]ourt of [p]robate refusing to admit it; however,
it is in no part of his duty to attack or take ground
against its validity.’’ Avery’s Appeal, 117 Conn. 201,
203–204, 167 A. 544 (1933), citing Belfield v. Booth, 63
Conn. 299, 309, 27 A. 585 (1893). A person cannot be
forced to ‘‘act as executor on the will of another against
his desire or by mere force of the circumstance that
the testator has nominated him to such office.’’ Kravitz
v. McCarthy, 14 Conn. Supp. 368, 372 (1946). If, how-
ever, he has possession of the will, a nominated execu-
tor must deliver it to the proper official of the court
of probate within thirty days, even if he impliedly or
expressly declines to serve as executor. See General
Statutes §§ 45a-282 and 45a-283 (a).8 If the nominated
individual is willing to serve as the executor of the will
in which he is named, he has a duty to ‘‘endeavor to
procure its admission.’’ Avery’s Appeal, supra, 203; see
also Sokar’s Appeal from Probate, 7 Conn. Supp. 196,
197 (1939). Here, the defendant was named executor
of the will by the decedent. He did not decline to act;
he offered the will’s admission to probate and has been
actively pursuing its admission. We, therefore, reject
the premise of the plaintiffs’ argument that the defen-
dant had no fiduciary duties and would have no such
duties until and unless the will is admitted and the
Probate Court specifically appoints him as executor.
The defendant had duties imposed by statute and case
law both to file the will with the Probate Court and to
endeavor to procure its admission.
The plaintiffs also argue against the danger of prema-
turely awarding legal fees, because ‘‘[s]hould a nomi-
nated executor ultimately not become the executor due
to the sustaining of an objection, there is no mechanism
to recover any inadvisably advanced fees. The lack of
such a mechanism is a further indication that the stat-
utes contemplate the awarding of fees after the Probate
Court hearing on the objection has been held.’’ (Foot-
note omitted.) We are not convinced.
Section 45a-294 (a) expressly provides for reimburse-
ment of expenses whether or not the will is admitted
to probate. The statute reflects practical concerns. The
alternative—to require the nominated individual to
advance, out of his own funds, money for legal counsel
for proceedings that could last months or years, as is
the situation in the present case—is impractical. Sec-
tion 45a-294 (a) provides that the court shall allow to
the executor his just and reasonable expenses in
defending the will in Probate Court. As the court stated:
‘‘Indeed, the very use of the term ‘executor’ in the statu-
tory language, applicable in the event of a successful
challenge to the will under which that individual was
[nominated] executor, necessarily means that the term
‘executor’ as used in this statute cannot mean only
an individual duly appointed by the Probate Court as
executor.’’ This proposition is bolstered by the public
policy concerns that are addressed by the statute.
A statute adopted by our legislature must be given
effect according to its terms unless it yields absurd or
unworkable results. See General Statutes § 1-2z.
Because a nominated executor who is willing to accept
appointment has certain fiduciary responsibilities to
offer the will for probate and to defend the will in the
probate process, we conclude that no absurdity results
from a court order, pursuant to § 45a-294, granting reim-
bursement of necessary and reasonable expenses in
defending the will in the admissions process. Nor is the
statute unworkable because a temporary administrator
has been appointed by the Probate Court who, upon
receipt of the court order, could have authority to pay
the sums authorized by the court. Therefore, we con-
clude that the court properly found that the defendant
had standing as the nominated executor to request legal
fees prior to admission to probate of the will nomi-
nating him.
II
We next address the plaintiffs’ claim that the court
improperly ordered the defendant’s claim for legal fees
paid in an amount found reasonable by the Probate
Court. ‘‘It is well established that we review the trial
court’s decision to award attorney’s fees for abuse of
discretion. . . . Likewise, when we review a trial
court’s decision to award fees to an executor, adminis-
trator or trustee, [t]he test is, has the court exercised
a reasonable discretion, or, in other words, is its exer-
cise so unreasonable as to constitute an abuse of discre-
tion. . . . This standard applies to the amount of fees
awarded . . . and also to the trial court’s determina-
tion of the factual predicate justifying the award. . . .
Under the abuse of discretion standard of review, [w]e
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion that it did. . . .
When determining whether the trial court used the
appropriate legal standard, our review is plenary.’’ (Cita-
tions omitted; internal quotation marks omitted.)
McGrath v. Gallant, 143 Conn. App. 129, 135, 69 A.3d
968 (2013).
Certain additional facts are necessary for a proper
understanding of this claim. The stipulation of facts
before the court stated that, on August 14, 2017, the
defendant, through counsel, filed a motion for payment
of legal fees and costs associated with defending the
will in the Probate Court. That motion subsequently
was amended to seek approval of $18,058 for all legal
fees and costs incurred to date. On August 15, 2017,
the defendant also filed a motion for a trial retainer
seeking $35,000 to defend the will in the pending will
contest. On or about November 14, 2017, after a hearing
that was not conducted on the record, the Stamford
Probate Court, Fox, J., ordered the payment of $18,058
in legal fees already incurred and a $12,000 trial retainer
to be paid to The Greenan Law Firm, LLC, from assets
of the estate. The reasons for appeal filed pursuant to
General Statutes § 45a-1869 and Practice Book § 10-7610
stated, in relevant part, that the Probate Court had
disregarded the explicit requirement that only a fidu-
ciary has standing to file a motion for reimbursement
of attorney’s fees or for a retainer. The appeal to the
Superior Court then stated that the defendant was not
a fiduciary and, as such, did not have standing to file
a motion for legal fees. Further, it stated that ‘‘[i]t is
very possible that, due to the objections pending in the
Probate Court, [the defendant] may never be appointed
as the executor of the estate’’ and, because he had not
been named executor, he could not invoke § 45a-294
to seek reimbursement of fees. Nowhere in the reasons
for appeal of the probate decree to the Superior Court
is there any mention that the plaintiff sought to chal-
lenge the amount of the fees awarded by Judge Fox if
the court were to decide that an award of fees before
the will had been admitted to probate was proper.
The lack of reference to any challenge to the amount
of the fees awarded by the Probate Court resulted in
no notice to Judge Povodator that the amount of fees
was at issue if he were to decide that an allowance of
reasonable expenses in defending the will, including
legal fees, could be issued to the nominated executor
prior to the will having been admitted to probate and
the nominated executor being appointed by the Probate
Court. The concise stipulation of facts on which the
probate appeal was heard de novo before the court
mentioned only that the parties stipulated to the amount
that Judge Fox had awarded in the probate proceeding.
The reasons for appeal questioned only the defendant’s
standing to file a motion for legal fees, invoking § 45a-
294. Judge Povodator stated in his memorandum of
decision that ‘‘the reasons only relate to the legal issues
identified, focusing on the propriety of addressing the
issues and not how they were decided.’’ The court went
on to observe that it was ‘‘going to decide the case based
on the manner [in which] it was presented, whereby
the plaintiffs either can be perceived to have conceded
(not challenged) the issue of reasonableness, or can be
deemed to have waived any claim of unreason-
ableness.’’
On appeal to this court, for the first time, the plain-
tiffs, citing McGrath v. Gallant, supra, 143 Conn. App.
131, claim that, where there is no record made before
the Probate Court, the Superior Court must apply fac-
tors set forth in Hayward v. Plant, 98 Conn. 374, 385,
119 A. 341 (1923), and make an independent reasonable-
ness determination with regard to the result reached by
the Probate Court. The plaintiffs claim that the Superior
Court erred in awarding legal fees before conducting
an evidentiary hearing on the merits upon an objection
to the validity of the will. The plaintiffs argue that the
Superior Court was required to make a determination
that the fees were just and reasonable, which could
not have occurred before the conclusion of such an
evidentiary hearing.
This might be so, had the plaintiffs alerted the court
that the issue of the reasonableness of the award was
a basis for the appeal, but neither the stipulation of
facts nor the reasons for appeal fairly alerted the court
that the amounts awarded by the Probate Court were
at issue. In response to a question from the appellate
panel at oral argument, the plaintiffs’ counsel stated,
‘‘we didn’t object to the dollar amounts, and we still
don’t object to the dollar amounts.’’ He then added that
the basis of their objection was that the awarding of
fees was made without an evidentiary basis from which
the Superior Court could have concluded that they were
just and reasonable.11 After review of the stipulation
and reasons for appeal filed with the Superior Court,
we conclude that the court was not apprised that the
reasonableness of the fees was at issue in the plaintiffs’
appeal to the Superior Court or that a de novo hearing
on the reasonableness of such fees was sought by
the plaintiffs.
The court, therefore, did not abuse its discretion in
awarding legal expenses in the amount awarded by the
Probate Court, once it had determined that § 45a-294
permitted such an award to a nominated executor prior
to a will being admitted to probate and the executor’s
formal appointment by the Probate Court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Lance Lamberton, Roark Lamberton-Davies, Paul Greenan, and Sarah
Ripegno also were named as defendants in the Superior Court. Rearden
Lamberton, however, is the only defendant involved in this appeal. Accord-
ingly, we refer to Rearden Lamberton as the defendant in this opinion.
2
Although the Superior Court used the term ‘‘designated’’ to refer to the
nomination of the executor, for consistency, we use the term ‘‘nominated’’
throughout this opinion.
3
When an appeal is taken from a judgment of the Probate Court to the
Superior Court, where there was no stenographic record in the Probate
Court, it is heard de novo. See Silverstein v. Laschever, 113 Conn. App.
404, 409, 970 A.2d 123 (2009).
4
In November, 2019, the defendant filed a motion with the Probate Court
seeking additional legal fees incurred between September 12, 2017 and July
25, 2019; the Probate Court granted the defendant an additional $35,000.
The plaintiffs, again, on December 11, 2019, appealed from the probate
decree to the Superior Court. See Lamberton v. Lamberton, Superior Court,
judicial district of Stamford-Norwalk, Docket No. FST-CV-XX-XXXXXXX-S.
5
Relying on § 39.1 of the Probate Court Rules, which states in relevant
part that, ‘‘[o]n [a] motion [by] a fiduciary, the court may approve . . . a
proposed fee for services already rendered by the fiduciary or attorney,’’
the plaintiffs argued in their appeal to the Superior Court that the Probate
Court had disregarded the explicit requirement that only a fiduciary has
standing to make a motion for reimbursement of attorney’s fees or for a
retainer, and the defendant was not a fiduciary for purposes of this rule.
As the court properly noted, however, the Probate Court Rules are not
binding on the Superior Court. See Probate Court Rules § 2.2 (b) (‘‘[t]he
rules do not apply to appeals from probate in the Superior Court, matters
transferred from a Probate Court to the Superior COurt or any other probate
matter in the Superior Court’’). On appeal, it is unclear whether the plaintiffs
are arguing that § 39.1 of the Probate Court rules was implicated at the
Superior Court level and/or whether interpretation of the rule is relevant
to our decision in this matter. To the extent that the plaintiffs are arguing
that the rule is authoritative on the issue of standing, we disagree and decline
to address any arguments directed to the substantive application of the rule
(e.g., the court’s ejusdem generis analysis). We do recognize, however, a
potential argument that the rule, in concert with various statutes that define
the role of a fiduciary, is suggestive of, or aids in, the proper interpretation
of the term ‘‘executor’’ as used in § 45a-294.
6
General Statutes § 45a-315 provides in relevant part: ‘‘As used in sections
45a-129, 45a-205, 45a-242 to 45a-244, inclusive, 45a-273 to 45a-276, inclusive,
45a-315 to 45a-318, inclusive, and 45a-320 to 45a-334, inclusive . . . ‘fidu-
ciary’ includes the executor or administrator of a decedent’s estate.’’
General Statutes § 45a-340 provides: ‘‘As used in sections 45a-340 to 45a-
347, inclusive, ‘fiduciary’ includes the executor or administrator of a dece-
dent’s estate.’’
7
The following colloquy took place during oral argument before this court:
‘‘[The Plaintiffs’ Counsel]: So, in terms of going forward with the fiduciary
duties of a nominee, the nominee doesn’t have the same sort of requirement
to gather and manage an account . . . to the Probate Court like other
trustees, like an administrator, an executor, trustee, a guardian, [or] a con-
servator.
‘‘Judge Bright: Would you acknowledge, though, that the nominee does
have some fiduciary duties?
‘‘[The Plaintiffs’ Counsel]: I would say that the nominee’s duty is to pro-
pound the will, to take the writing to the Probate Court for probate.
‘‘Judge Bright: What about the handling of the assets until the will is
admitted to probate?
‘‘[The Plaintiffs’ Counsel]: They have no role. In fact, as Judge Povodator
found there is a temporary administrator in this case.
‘‘Judge Bright: Yes, but the temporary administrator had to be appointed.
So until the temporary administrator is appointed, from the death of the
decedent until the appointment of the temporary administrator, are you
saying the nominee has no fiduciary duty?
‘‘[The Plaintiffs’ Counsel]: If there is an objection, then they have no role
in the management of the assets.
‘‘Judge Bright: Before an objection is made. Before an objection is made,
from the time [of] death until anything happens in the Probate Court, is it
your position that that nominee has no fiduciary duty?
‘‘[The Plaintiffs’ Counsel]: Yes.
‘‘Judge Elgo: Do they have no duty to secure an attorney at all?
‘‘[The Plaintiffs’ Counsel]: To secure an attorney? No, they do not have
a duty to secure an attorney. In fact, many nominees decline to serve. It’s
not unheard of.
‘‘Judge Flynn: So, what do you see as the function of someone named in
the will as executor, can they simply walk away from any obligation to
support the admission of the will?
‘‘[The Plaintiffs’ Counsel]: They can and in some cases they do. The
nominee is someone who is set forth in a writing. There may be a successor
nominee, the court could ultimately determine that there is no written will,
and, despite whatever writing is propounded by a nominee, and appoint an
administrator. There are innumerable ways that this can turn out.’’
8
General Statutes § 45a-282 makes it a crime for any person to fail to
deliver a will or codicil in his possession ‘‘forthwith, after he has knowledge
of the death of the testator, . . . either to the person designated to be the
executor or one of the persons designated to be an executor thereof, or to
the judge, clerk or assistant clerk of the court of probate which by law has
jurisdiction of the estate of such deceased person.’’
Additionally, General Statutes § 45a-283 (a) provides that ‘‘[e]very person
having knowledge of his designation in a will as an executor of a testator’s
estate shall, within thirty days next after the death of the testator, apply
for probate of the will to the court of probate of the district where the
testator was domiciled at his death.’’ Subsection (b) also provides that a
fine of not more than $200 shall be imposed for failure to do so. General
Statutes § 45a-283 (b).
9
General Statutes § 45a-186 (a) provides in relevant part that ‘‘any person
aggrieved by any order, denial or decree of a Probate Court in any matter
. . . may . . . appeal therefrom to the Superior Court. Such an appeal shall
be commenced by filing a complaint . . . . The complaint shall state the
reasons for the appeal. . . .’’
10
Practice Book § 10-76 (a) provides in relevant part: ‘‘Unless otherwise
ordered, in all appeals from probate the appellant shall file reasons of
appeal . . . .’’
11
We recognize that this claim also could be interpreted as, effectively,
an extension of the plaintiffs’ first claim, challenging both the timing of and
the award of legal fees. The plaintiffs’ first claim was premised on the notion
that the court prematurely awarded the fees to the defendant, who had not
yet been named an executor. Here, the plaintiffs effectively are arguing
another ground upon which the court’s award was premature, namely, that,
without the evidentiary hearing on the objection, the executor’s legitimacy
cannot be determined. In their brief, the plaintiffs contend that ‘‘[t]he exis-
tence of an objection . . . should weigh heavily in the decision as to the
appropriateness and the ‘just and reasonable’ fees of an unsuccessful nomi-
nated executor. Here, the Probate Court and the objectant are not yet in a
position to determine if the position of one of the parties is frivolous or
not.’’ The plaintiffs seem to suggest through their line of reasoning that, if
the defendant ultimately is not appointed as executor, his efforts in defending
the will throughout the probate process could not be deemed just and
reasonable, or, at the very least, should be greatly reduced. Accordingly,
the plaintiffs argue, legal fees should not be awarded until after the objection
is heard and a determination is made as to whether the appointment of the
executor is valid.
This argument implicates the same concerns addressed in part I of this
opinion and warrants the same analysis. Therefore, to the extent that the
plaintiffs merely are challenging the timing of the award, we conclude that
the court did not abuse its discretion in granting the defendant’s motion
for legal fees before the conclusion of the evidentiary hearing.