Holloway v. Carvalho ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STACY HOLLOWAY v. LINDA CARVALHO ET AL.
(AC 43831)
Elgo, Moll and Sheldon, Js.
Syllabus
The plaintiff appealed to the trial court from the decree of the Probate Court
admitting the decedent’s will to probate. The decedent, the plaintiff’s
grandfather, had two children, L and the defendant. The decedent’s wife
had died. L died in 2010 and expressly disinherited the plaintiff, her
daughter. After the death of L, the decedent and the defendant met with
an attorney, B, to discuss what would happen to the decedent’s estate
if the defendant also predeceased him. B advised the decedent that the
plaintiff, as the only child of L, would inherit one half of the decedent’s
assets upon his death. He responded that he did not want the plaintiff
to inherit any of his assets. B then drafted a new will for the decedent
that reflected his express wish to disinherit the plaintiff. The will left
all of the decedent’s assets to the defendant and stated that the decedent
intentionally made no provision for the plaintiff. After the decedent’s
death, the Probate Court admitted the decedent’s will. Thereafter, the
plaintiff appealed to the trial court, claiming, inter alia, that the will
should not have been admitted to probate because the decedent was
not of sound mind and was under the defendant’s improper and undue
influence. Following a trial, the trial court concluded that the Probate
Court properly admitted the will to probate because the decedent had
testamentary capacity to execute the will and was not under the undue
influence of the defendant. On the plaintiff’s appeal to this court, held:
1. The plaintiff could not prevail on her claim that the trial court improperly
concluded that the decedent had testamentary capacity to execute the
will; the defendant presented more than sufficient evidence that the
decedent was of sound mind when he executed the will, and the court
based its ruling on its well supported findings that, at the time the
decedent executed the will, he was able to live independently with the
assistance of family members, lacked serious brain injury that would
deprive him of the ability to understand what he was doing when he
executed the will, and he was well aware of what he was doing when
he executed the will and had rational reasons for doing so, which was
to change his previous will in order to disinherit the plaintiff because
he wanted to ensure that she would not waste the assets she would
otherwise inherit from him.
2. The trial court properly rejected the plaintiff’s claim of undue influence:
the burden of proof on the issue of undue influence generally rests with
the person alleging it and, although it can be shifted in rare circum-
stances, the burden of disproving undue influence will not shift to a
child of the testator, even where a confidential relationship appears to
exist; moreover, the court’s conclusion that there was no undue influence
would not have changed even if the court had shifted the burden onto
the defendant because the court’s decision that there had been no undue
influence was made under the clear and convincing standard, which is
the same standard of proof that would have applied had the burden of
proof formally been shifted to the defendant.
Argued March 16—officially released August 3, 2021
Procedural History
Appeal from the decree of the Probate Court for the
district of Newington admitting to probate the will of
Paul Pizzo, brought to the Superior Court in the judicial
district of New Britain and tried to the court, Auri-
gemma, J.; judgment affirming the Probate Court’s
decree, from which the plaintiff appealed to this court.
Affirmed.
Joseph A. Hourihan, with whom was William S. Sha-
piro, for the appellant (plaintiff).
Linda L. Morkan, with whom was Christopher J.
Hug, for the appellees (defendants).
Opinion
SHELDON, J. The plaintiff, Stacy Holloway, appeals
from the judgment of the trial court, Aurigemma, J.,
affirming the admission to probate of the will of her
late grandfather, the decedent Paul Pizzo. The will was
submitted to the Probate Court by the plaintiff’s aunt,
the defendant Linda Carvalho, who was the decedent’s
only surviving daughter, the executrix of his estate, and
the principal beneficiary under the will.1 On appeal, the
plaintiff claims that the court erred in affirming the
admission of the decedent’s will to probate after
improperly rejecting her claims (1) that the decedent
lacked testamentary capacity to execute the will, and
(2) that the defendant exerted undue influence on the
decedent in connection with the will. We affirm the
judgment of the trial court.
The following facts and procedural history, as found
by the court and supported by the record, are relevant
to this appeal. The decedent, who was born on Novem-
ber 21, 1916, was married to his wife, Lee Pizzo, until
her death on February 4, 1994. Lee and the decedent
had two children, Linda Carvalho, the defendant, and
her older sister Lisa Holloway. Linda and her husband,
John Carvalho, have two adult children, John Paul2 and
Michelle. Lisa, who died on June 18, 2010, had one child,
the plaintiff. In her will, Lisa expressly disinherited the
plaintiff, stating only: ‘‘I intentionally make no provision
in this Will for my daughter . . . for reasons which are
good and controlling to me.’’
At the time of Lisa’s death, the decedent’s operative
will was the last will and testament that he had executed
on February 4, 1987 (1987 will). In his 1987 will, the
decedent had directed that, upon his death, all of his
assets would be distributed to his wife, but if she did
not survive him, then they would be divided evenly
between his children.
Following Lisa’s death, however, the decedent met
with an attorney, Michael Bellobuono, to review the
terms of his 1987 will after the defendant, who then
held his power of attorney and served as his primary
caretaker and financial advisor, raised concerns about
what would happen to him and his estate if she too
should predecease him.3 The defendant drove the dece-
dent to his initial meeting with Bellobuono and person-
ally attended that meeting. During the meeting, Bellobu-
ono advised the decedent that under his 1987 will, the
plaintiff, as Lisa’s only child, would inherit one half of
his assets upon his death.4 The decedent responded
immediately to that advisement by telling Bellobuono
that he did not want the plaintiff to inherit any of his
assets. Bellobuono thereafter drafted a new will for the
decedent to reflect his express wish to disinherit the
plaintiff.
On December 14, 2010, the decedent had a second
meeting with Bellobuono to review and execute the new
will that Bellobuono had drafted for him. The defendant
also drove the decedent to Bellobuono’s office for this
second meeting but did not attend or take part in the
meeting. Instead, she remained in the lobby while the
decedent met with Bellobuono to review and execute
the new will (2010 will).5
The 2010 will provided that, upon the decedent’s
death, all of his assets would be distributed to the defen-
dant ‘‘if she is then living,’’ but if she did not survive
him, they would be distributed to the defendant’s living
issue. The decedent explained in the will that he had
‘‘intentionally made no provision [in it] for the benefit
of [his] granddaughter, Stacy Holloway, not because of
lack of love or affection [for her] but because she [had]
been adequately taken care of during her lifetime.’’ The
will further provided that the defendant would serve
as executrix of the decedent’s estate, but if she did not
survive him, that her daughter Michelle would serve in
that capacity. The decedent died of natural causes on
September 5, 2017, at the age of 100.
The Newington Probate Court, Randich, J., admitted
the decedent’s 2010 will to probate by a decree dated
July 10, 2018. The plaintiff filed a de novo appeal in
the Superior Court on July 30, 2018, contesting the
admission of the 2010 will to probate. In her amended
complaint dated August 16, 2018, the plaintiff alleged
that the 2010 will should not have been admitted to
probate because, when the decedent executed it, (1)
he was not of sound mind, (2) he was suffering from an
insane delusion, and (3) he was under the defendant’s
improper and undue influence. The defendant denied
each of the plaintiff’s allegations, both in her individual
capacity and in her capacity as executrix of the dece-
dent’s estate, in her answer dated August 27, 2018.
Thereafter, on September 20, 2019, the parties sub-
mitted an amended stipulation of facts to the court
in anticipation of trial. The facts to which the parties
stipulated included: (1) that the will complied with the
formality requirements of due execution set forth in
General Statutes § 45a-251, in that it was in writing, it
had been signed by the decedent, and it was attested
to by two witnesses, each of whom had signed it in the
decedent’s presence; (2) that the decedent was over
eighteen years of age when he executed the will; and
(3) for clarity, that the parties disputed whether, when
the decedent executed the will in December, 2010, he
was of sound mind or suffering from an insane delusion,
and whether he was then acting under the undue influ-
ence of the defendant.
Trial took place on two days, October 17, 2019, and
November 1, 2019. On the first day of trial, the court
heard testimony from the plaintiff, the defendant, the
defendant’s son, John Paul, and Janice Olivieri, an inter-
nist who had treated the decedent for several years
prior to his death. On the second day of trial, the court
heard testimony from Kenneth Selig, a forensic psychia-
trist whom the defendant had called as an expert wit-
ness.
Olivieri testified that she had treated the decedent
from 2007 or 2008 through 2014.6 She stated that the
decedent had been diagnosed with dementia by another
physician before he became her patient, and recalled
that while he was under her care, she had observed
that he had poor recall and at times did not know where
he was. She further testified, based upon the decedent’s
medical records from 2008, that he had had ‘‘multiple
infarcts’’ in the frontal lobe of his brain, which had left
him with scar tissue that, in her opinion, would have
caused him to have difficulty understanding a compli-
cated legal document such as a will. On those bases,
Olivieri concluded that the decedent lacked testamen-
tary capacity to execute the challenged will on Decem-
ber 14, 2010.
Selig testified on the second day of trial that he had
prepared for his testimony, inter alia, by reviewing the
decedent’s treatment records from Hartford Hospital
for the period from January 24, 2008, through Septem-
ber 2, 2017, and from Hartford Healthcare for the period
from March 27, 2012, through June 28, 2017. He further
stated that, to help him determine whether the decedent
had testamentary capacity to execute the 2010 will,
he had reviewed a scientific paper on the stages of
dementia, he had spoken to the defendant, and he had
reviewed transcripts of the deposition testimony of
each of the other trial witnesses. On the basis of what
he had learned in this process, Selig concluded that the
decedent was capable of executing a will on December
14, 2010, because most of the decedent’s medical
records indicated that he then was oriented to time,
person, and place, and the overwhelming evidence
established that the confused condition and slurred
speech documented in his medical records from 2008,
on which Olivieri had relied in her testimony, had
resolved by December, 2010. Selig explained that he
found support for his conclusions both in the decedent’s
pathology, as documented in the decedent’s medical
records, and in the decedent’s day-to-day functioning
in the relevant time frame, as observed by both parties
and described in their testimony. Selig opined that the
frontal lobe of the decedent’s brain was not severely
damaged because, as documented in reports of a 2008
CT scan and a 2016 MRI of the decedent’s brain, he
had had no more than two infarcts in that area. Selig
asserted that, because there was not much damage to
the decedent’s frontal lobe, how he functioned on a
daily basis at the time he executed the 2010 will weighed
more heavily in assessing his testamentary capacity
than any brain damage he previously had suffered. Selig
thus concluded, in his professional opinion, that the
decedent had testamentary capacity to execute the chal-
lenged will on December 14, 2010, because he lived
alone on that date, he was frequently left alone by his
caretakers in that time frame, and he remembered to
take the medications that were apportioned for him by
members of his family.
After the close of evidence at trial and posttrial brief-
ing by the parties, the court affirmed the decision of
the Probate Court to admit the will to probate after
rejecting the plaintiff’s claims that the decedent lacked
testamentary capacity to execute the will and that he
was under the undue influence of the defendant at the
time of the will’s execution. As to the plaintiff’s claim
of lack of testamentary capacity, the court found first,
that the plaintiff had failed to produce sufficient evi-
dence that the decedent lacked testamentary capacity—
which it defined as ‘‘mind and memory sound enough
to know and understand the business upon which [he]
was engaged, that of the execution of a will, at the very
time [he] executed it’’—to overcome the decedent’s
‘‘presumption of sanity’’ at that time, and thus the defen-
dant could rely upon that unrebutted presumption to
meet her statutory burden of proving that the decedent
was ‘‘of sound mind’’ when he executed the 2010 will,
and, second, that apart from the presumption of sanity,
the combined evidence presented by the parties proved
by clear and convincing evidence that the decedent had
testamentary capacity when he executed the 2010 will.
In support of these findings, the court relied specifically
on the plaintiff’s and the defendant’s testimony that, in
December, 2010, the decedent was living on his own,
that he then knew all the members of his family, took
all the medications that his family members set out for
him and competently engaged in grocery shopping with
their assistance, and that in that time frame he fre-
quented a gym, enjoyed socializing with others, and
loved watching television, particularly ‘‘Judge Judy.’’ As
for the medical testimony concerning the decedent’s
testamentary capacity, the court expressly discounted
Olivieri’s opinion that the decedent lacked such capac-
ity because he could not understand complicated legal
documents, holding that a testator need not have the
ability to understand complicated legal documents in
order to have testamentary capacity to execute a valid
will. Furthermore, it refused to credit Olivieri’s pur-
ported recollection of the decedent’s poor memory and
occasional unawareness of his whereabouts when he
was her patient because her own records of the dece-
dent’s care and treatment contradicted that testimony.
Specifically, the court noted that Olivieri’s records of
the decedent’s visits with her on several dates following
the execution of the 2010 will indicated that he was
doing remarkably well and was appropriately answering
all of the questions that she put to him. In the end, the
court agreed with Selig that the decedent was ‘‘capable
of executing a will on December 14, 2010.’’
As for the plaintiff’s claim of undue influence, she
had asserted that, because the defendant was the per-
son who held the decedent’s power of attorney and
served as his primary caregiver and financial manager
when he executed the 2010 will and made her his pri-
mary beneficiary thereunder, she was in a position of
trust and confidence vis-à-vis the decedent that imposed
fiduciary duties to him upon her, and thus required her
to prove by clear and convincing evidence that she had
not taken advantage of their special relationship by
exerting undue influence on him in connection with the
2010 will. The defendant disagreed, arguing that the
burden was on the plaintiff, as the party contesting the
will on the ground of undue influence, to prove by clear
and convincing evidence that she had subjected the
decedent to such undue influence.
The defendant based her argument on our Supreme
Court’s decision in Lockwood v. Lockwood, 80 Conn.
513, 69 A. 8 (1908), in which the court recognized that
the burden of proof on a claim of undue influence does
not shift to a party claiming an inheritance under a
challenged will except in ‘‘one exception’’ in which the
person believed to have exercised the undue influence
was in a fiduciary relationship with the testator, the
will favors the fiduciary, and the fiduciary is a stranger
resulting in the complete elimination of the natural
objects of the testator’s bounty. See id., 522. In this
case, claimed the defendant, she neither stood in such
a relationship of trust and confidence vis-à-vis the dece-
dent as to impose fiduciary duties upon her with respect
to his will nor was she a stranger to him, for she was
his daughter.
The court, citing Lockwood,7 affirmed the decree of
the Probate Court after finding by clear and convincing
evidence that the defendant had not exerted any undue
influence on the decedent in connection with the 2010
will. In support of that ruling, the court found that the
evidence did not support a finding that the decedent’s
free agency and independence had been so overcome
by the defendant’s influence on him that the will was
not a product of his own planning and desires. To the
contrary, it found by clear and convincing evidence
that the decedent had executed the new will in precise
accordance with his own spontaneously expressed wish
that his assets not be wasted after his death by leaving
them to a granddaughter who had problems managing
her money. The court thus found that the decedent
not only knew what he was doing when he met with
Bellobuono, which was to sign and execute a new will
to disinherit the plaintiff, but he had a rational reason
for so doing, which was to ensure that his assets would
not be wasted by the plaintiff after his death. The court
found that the latter conclusion was further supported
by its consistency with the earlier decision of the plain-
tiff’s mother to disinherit the plaintiff in her own will
as well.
As a result of its finding that the decedent had not
been under undue influence from the defendant when
he executed the 2010 will, and of the high standard of
proof by which it made that finding, the court further
concluded that it did not need to formally determine
which party bore the ultimate burden of proving or
disproving undue influence in this case. The evidence
establishing the absence of undue influence was suffi-
ciently strong, the court concluded, that it would satisfy
even the most demanding standard of proof under
which either party could have been required to bear
the burden of proving or disproving it.
Notwithstanding the latter conclusion, the court went
on to address the plaintiff’s claim that the burden of
disproving undue influence should have been formally
assigned to the defendant because she allegedly owed
fiduciary duties to the decedent. The court rejected that
claim, finding that the defendant did not stand in so
close a relationship of trust and confidence with the
decedent as to make her his fiduciary. In so ruling,
the court applied the rule articulated in Dunham v.
Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987), in
which our Supreme Court declared that ‘‘[a] fiduciary
or confidential relationship is characterized by a unique
degree of trust and confidence between the parties, one
of whom has superior knowledge, skill or expertise and
is under a duty to represent the interests of the other.’’
This appeal followed. Additional facts will be set forth
as necessary.
I
We first examine the plaintiff’s claim that the court
erred in affirming the admission of the decedent’s 2010
will to probate over her objection that the defendant had
failed to establish that the decedent had testamentary
capacity at the time he executed the will.8 The court
ruled that the defendant had presented sufficient evi-
dence of the decedent’s testamentary capacity when he
executed the will to raise a presumption of his sanity
at that time, and, thus, without sufficient countervailing
evidence from the plaintiff to overcome that presump-
tion, the defendant met her statutory burden of proving
that he was of sound mind at the time of execution, as
required by General Statutes § 45a-250.9 The plaintiff
claims error in the court’s ruling on the ground that the
defendant presented no evidence that, at the time the
decedent executed the 2010 will, he had full and specific
knowledge of the nature and condition of his property,
as she claims to be required by law to execute a valid
will directing the final disposition of such property after
his death. The defendant disagrees with the plaintiff’s
contention, arguing that under well established Con-
necticut law, as cited and properly relied on by the
trial court, what is required to establish a testator’s
testamentary capacity is that, at the time he executed
the will, he had sufficient mind and memory to know
and understand the business in which he was engaged,
to wit, executing a will. We agree with the defendant.
The plaintiff’s first claim of error presents a question
of law; see Bassford v. Bassford, Superior Court, judi-
cial district of Middlesex, Docket No. CV-XX-XXXXXXX-S
(March 24, 2016) (reprinted at 180 Conn. App. 335, 340,
183 A.3d 680), aff’d, 180 Conn. App. 331, 183 A.3d 680(2018); as to which our standard of review is plenary.
See Barber v. Barber, 193 Conn. App. 190, 221, 219 A.3d
378 (2019). Simply put, the question is whether proof
of a testator’s testamentary capacity to execute a valid
will invariably requires proof that at the time of execu-
tion the testator had full and specific knowledge of the
nature and condition of his property.
In support of her argument in the affirmative, the
plaintiff relies on language in a jury instruction
approved by our Supreme Court in In re Probate Appeal
of Turner, 72 Conn. 305, 313, 44 A. 310 (1899) (Turner),
which she claims establishes that an essential element
of testamentary capacity is that the testator had full
and specific knowledge of all of his assets at the time
he executed the will. The instruction at issue in Turner
provided that to establish testamentary capacity, ‘‘it
was sufficient if the testatrix had such a mind and
memory as would enable her to recollect and under-
stand ‘the nature and condition of her property, the
persons who were or should be the natural objects of
her bounty, and her relations to them, the manner in
which she wished to distribute it among or withhold it
from them, and the scope and bearing of the provisions
of the will she was making.’ ’’ Id. The plaintiff contends
that the first clause of this instruction—specifically,
that ‘‘it was sufficient if the testatrix had such a mind
and memory as would enable her to recollect and under-
stand ‘the nature and condition of her property’ ’’; id.;
expressly established an element of proof that was not
satisfied in this case.
The defendant disagrees for two reasons, which we
find persuasive. First, she rightly contends that the lan-
guage of the instruction approved in Turner cannot be
read to require proof that when the testator executed
the will, he had full and specific knowledge of the nature
and condition of his property. Instead, the instruction
focused on the general condition of the testator’s mind
and memory at the time he executed the will, more
broadly requiring a finding that he then had the memory
and mental ability to recollect and understand the mat-
ters listed in the instruction, all of which would logically
be considered and taken into account by a rational
person who knows that he was executing a will, and
thereby directing the final disposition of his property
after his death.
We also note that the plaintiff’s interpretation of
Turner is at odds with the prior decision of our Supreme
Court, which rejected just such a claim as to the proof
required to establish testamentary capacity. In St. Leg-
er’s Appeal from Probate, 34 Conn. 434, 438 (1867) (St.
Leger) (preliminary statement of facts and procedural
history), the court reviewed a will contestant’s claim
that the trial court had erred by failing to give a
requested jury instruction requiring that the testator be
proved to have ‘‘comprehend[ed] perfectly the condi-
tion of his property’’ in order to establish his testamen-
tary capacity. (Emphasis added.) Addressing that argu-
ment, the court in St. Leger ruled that a testator must
be found to have had ‘‘sufficient capacity to make a
will if he understood the business in which he was
engaged, and the elements of it, namely, if he recollected
and understood, or in other words comprehended, the
nature and condition of his property . . . .’’ (Emphasis
added.) Id., 448–49. Proof of testamentary capacity thus
requires proof of the testator’s understanding of what
he was doing when he executed the will and the ele-
ments of it, but it does not require proof that he then
had precise comprehension of the nature and condition
of each and every element of his property. See id., 449.
Second, the defendant looks to case law from the
last century interpreting and applying the statute under
which her burden of proving testamentary capacity
arises, and rightly notes that there is no language in
any such case that conditions a finding of testamentary
capacity on proof that the testator had full and specific
knowledge of the nature and extent of his property
when he executed the will. To the contrary, such case
law uniformly establishes, as the trial court ruled, that
‘‘§ 45a–250 provides: ‘Any person eighteen years of age
or older, and of sound mind, may dispose of his estate by
will.’ The burden of proof in disputes over testamentary
capacity is on the party claiming under the will. . . .
‘‘To make a valid will, the testatrix must have had
mind and memory sound enough to know and under-
stand the business upon which she was engaged, that
of the execution of the will, at the very time she exe-
cuted it. . . .
‘‘Our law provides that it is a testator’s capacity at
the time of the will’s execution that is relevant. The
fundamental test of the testatrix’s capacity to make a
will is her condition of mind and memory at the very
time when she executed the instrument. . . . While in
determining the question as to the mental capacity of
a testator evidence is received of his conduct and condi-
tion prior and subsequent to the point of time when it
is executed, it is so admitted solely for such light as it
may afford as to his capacity at that point of time and
diminishes in weight as time lengthens in each direction
from that point.’’ (Citations omitted; internal quotation
marks omitted.) Bassford v. Bassford, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S (reprinted at 180
Conn. App. 340–41); see also Atchison v. Lewis, 131
Conn. 218, 219–20, 38 A.2d 673 (1944) (‘‘[t]he test of
testamentary capacity stated in its simplest terms is
that the testator must have mind and memory sound
enough to enable him to know and understand the busi-
ness upon which he is engaged, that is, the execution
of his will at the very time he executes it’’); Jackson v.
Waller, 126 Conn. 294, 301, 10 A.2d 763 (1940) (same);
Maroncelli v. Starkweather, 104 Conn. 419, 424, 133 A.
209 (1926) (same); Sturdevant’s Appeal from Probate,
71 Conn. 392, 399, 42 A. 70 (1899) (same). ‘‘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.’’
(Internal quotation marks omitted.) Sanzo’s Appeal
from Probate, 133 Conn. App. 42, 51, 35 A.3d 302 (2012).
On the basis of the foregoing analysis, we agree with
the defendant that she was entitled to prevail on her
claim that the decedent had testamentary capacity
when he executed his 2010 will without specific proof
that he then had full and specific knowledge of the
property whose final disposition he was directing in
the will. Even in the absence of such evidence, the
defendant presented more than sufficient evidence not
only to raise the presumption of the decedent’s sanity,
but also to satisfy her ultimate statutory burden of prov-
ing by a fair preponderance of the evidence that the
decedent had such capacity in December, 2010. The
court based its ruling on its well supported findings
that the decedent was then able to live independently
with the assistance of members of his family, that he
lacked such serious brain injury as would deprive him
of the ability to understand what he was doing when
he executed the will, and, in fact, he was well aware
of what he was doing when he executed the will and
had rational reasons for so doing, which was to change
his previous will and disinherit the plaintiff, in order
to ensure that she would not waste the assets she other-
wise would have inherited from him.10
Accordingly, we reject the plaintiff’s first claim of
error on appeal.
II
The plaintiff next claims that the court erred in
affirming the admission of the decedent’s 2010 will to
probate after improperly rejecting her claim that the
defendant had exerted undue influence upon the dece-
dent in connection with the will. The court erred in so
ruling, she claims, by failing to assign the burden of
disproving her claim of undue influence to the defen-
dant. The defendant responds to that argument in two
ways. First, she contends, under the authority of Lock-
wood v. Lockwood, supra, 80 Conn. 522, that the burden
of proof as to undue influence properly rests on the
party contesting the will unless the case involves the
‘‘one exception’’ described in Lockwood, under which
such a burden shift is appropriate. On that score, the
defendant notes specifically that she and the decedent
were members of the same family, between whom no
suspicion of undue influence arises when one is favored
in the other’s will even when the one so favored occu-
pied a position of trust and confidence vis-à-vis the
one who favored her at the time he executed the will.
Second, the defendant argues that, even if the court had
improperly assigned the burden of disproving undue
influence to her despite her familial relationship with
the decedent, such a determination would not have
made any difference in the court’s resolution of that
issue or its ultimate disposition of this case, because
the court made its finding of no undue influence by
clear and convincing evidence, which is the same stan-
dard under which that issue would have been decided
had the burden of disproving it been formally assigned
to her. Claiming that ‘‘the weight of the evidence intro-
duced at trial [showed] that [the decedent] was in con-
trol both in the making of a new will, and in its contents
and instructions,’’ the defendant argues that the court’s
finding of no undue influence was not clearly erroneous
and must, therefore, be upheld. For the following rea-
sons, we agree with the defendant that the court’s rejec-
tion of the plaintiff’s claim of undue influence was
proper and must be affirmed.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses.’’ (Internal quotation marks omitted.) Cham-
pagne v. Champagne, 54 Conn. App. 321, 324, 734 A.2d
1048 (1999). ‘‘Ordinarily, the burden of proof on the
issue of undue influence rests on the one alleging it
. . . . In will contests, we recognize an exception to
this principle when it appears that a stranger, holding
toward the testator a relationship of trust and confi-
dence, is a principal beneficiary under the will and
that the natural objects of the testator’s bounty are
excluded. . . . The burden of proof, in such a situation,
is shifted, and there is imposed upon the beneficiary
the obligation of disproving, by [clear and convincing
evidence], the exertion of undue influence by him. . . .
We have said, however, that the law does not brand
every legacy as prima facie fraudulent simply because
the legatee enjoys the trust and confidence of the testa-
tor. . . . [I]t is only where the beneficiary is, or has
acquired the position of, a religious, professional or
business adviser, or a position closely analogous
thereto, that the rule of public policy can be invoked
which requires such a beneficiary to show that he has
not abused his fiduciary obligation. . . . It has been
stated frequently that the rule should not be extended
beyond the limitations placed upon it in its recognition.
. . . There is a marked distinction between the situa-
tion where the beneficiary is a stranger and the situation
where [s]he is a child of the testator or grantor. . . .
When . . . a child is the beneficiary, the burden of
proving the absence of undue influence does not shift
to the child, even though it appears that a confidential
relationship existed. . . . 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 confi-
dence has been abused and undue influence exercised.’’
(Citations omitted; internal quotation marks omitted.)
Berkowitz v. Berkowitz, 147 Conn. 474, 476–78, 162
A.2d 709 (1960).
Under the foregoing authorities, the defendant is cor-
rect that the court did not err by not formally assigning
to her the burden of disproving the plaintiff’s claim of
undue influence. Even if she had been found to occupy
such a position of trust and confidence vis-à-vis the
decedent when he executed the will as to make her his
fiduciary, which the trial court expressly rejected, the
burden of disproving that she exerted undue influence
on the decedent could not have been assigned to her
under the rule of Lockwood because she was his daugh-
ter.
Furthermore, even if the court had formally shifted
the burden of proof to the defendant, that burden shift
would have had no effect on the court’s finding of no
undue influence. Indeed, the court’s decision that there
had been no undue influence was made under the clear
and convincing evidence standard, which is the same
standard of proof that would have applied had the bur-
den of proof formally shifted to the defendant. Accord-
ingly, the court’s alleged error did not contribute to its
judgment against the plaintiff, and thus it affords the
plaintiff no basis for reversing that judgment on appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants are Linda Carvalho, as executrix of the decedent’s estate,
and Linda Carvalho, individually, as the decedent’s daughter and heir. We
refer to Linda Carvalho as the defendant throughout this opinion without
making a distinction between her individual or representative capacity,
unless it is necessary to do so.
2
We refer to the defendant’s son as John Paul and refer to the defendant’s
husband as John Carvalho.
3
The defendant was concerned because, although the decedent’s 1987
will named the defendant as a successor executrix in the event of his wife’s
death, the 1987 will did not name an additional successor executor to serve
in that capacity in the event that the defendant predeceased the decedent.
The defendant set out to address her concern by having her daughter named
as a successor executrix.
4
The defendant was the only witness to testify about the substance of
the meeting because Bellobuono was deceased at the time of trial.
5
The plaintiff does not dispute that the 2010 will was duly executed under
applicable Connecticut law.
6
Olivieri was also the plaintiff’s work colleague.
7
We note that the court used the wrong case title in its decision, In re
Lockwood instead of Lockwood v. Lockwood, but used the correct citation.
We consider the court’s error to be a harmless scrivener’s error that does
not affect the correctness of its decision.
8
In her brief on appeal, the plaintiff set forth her claims in a different
order. For the sake of convenience, we discuss the plaintiff’s claims in
reverse order.
9
General Statutes § 45a-250 provides: ‘‘Any person eighteen years of age
or older, and of sound mind, may dispose of his estate by will.’’
10
Despite the plaintiff’s claim, there was evidence that the decedent had
a general sense of what his property consisted of, because his concern was
that the plaintiff would waste money because of her purported poor life
choices, and his assets mainly consisted of cash assets.