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Geci v. Boor

Court of Appeals of Connecticut

December 12, 2017

ALICE K. GECI, EXECUTRIX (ESTATE OFWILLIAM F. KLEE), ET AL.
v.
DAVID BOOR ALICE K. GECI, EXECUTRIX (ESTATE OFWILLIAM F. KLEE), ET AL.
v.
DAVID BOOR ET AL.

          Argued September 8, 2017

          Malcolm F. Barlow, for the appellant (named defendant).

          Vincent John Purnhagen, for the appellee (plaintiff).

          Keller, Prescott and Kahn, Js. [*]

          OPINION

          KELLER, J.

         In this consolidated probate appeal, the defendant David Boor appeals from the judgments rendered by the trial court in favor of the plaintiff, Alice K. Geci.[1] The defendant claims that (1) the court erred by finding that, upon the death of the decedent, William F. Klee, the plaintiff became the sole owner of joint bank accounts held by the decedent and the plaintiff, and, thus, they were not part of his estate, and (2) the court abused its discretion by reinstating the plaintiff as the executrix of the decedent's estate. We disagree with the defendant and, therefore, affirm the judgments of the trial court.

         We begin by setting forth the relevant facts and procedural history. On July 12, 2015, the Probate Court for the district of Ellington issued a decision in which it found that the decedent and the plaintiff held funds in joint accounts for convenience purposes only, that the decedent did not intend for the plaintiff to become the sole owner of the funds in the joint accounts upon his death, that the plaintiff undervalued assets in the inventory of the estate, and that money given to the plaintiff by the decedent to purchase a new car must be reported as estate inventory. On the basis of those findings, the Probate Court ordered that a constructive trust for the benefit of the defendant be placed on the undervalued assets and the funds in the joint accounts or, in the alternative, that a constructive trust be imposed on the remainder of the proceeds in the decedent's estate. The Probate Court also ordered that the money the plaintiff used to purchase the car must be reported as an advanced distribution in the final accounting of the decedent's estate. Later, on August 17, 2015, the Probate Court removed the plaintiff as executrix of the decedent's estate.

         Pursuant to General Statutes § 45a-186 (a), the plaintiff appealed to the Superior Court from the Probate Court's orders involving the joint bank accounts and its decision to remove her as executrix of the decedent's estate. The Superior Court consolidated the plaintiff's appeals and conducted a de novo hearing focused on two issues-whether the jointly held bank accounts in question were part of the decedent's estate and whether the plaintiff should be reinstated as the executrix. The court, after conducting a three day bench trial, found that the plaintiff became the sole owner of the joint bank accounts upon the decedent's death. The court also reinstated the plaintiff as the executrix of the decedent's estate.

         The trial court set forth the following facts in its memorandum of decision: ‘‘[The decedent] . . . died on September 19, 2013 [and was] predeceased [by his spouse, Gloria R. Klee. The decedent and Gloria Klee] had three children . . . the plaintiff, Marjorie K. Heintz and Frederick G. Klee. All three of these children . . . survived the decedent. . . . [The decedent] was, by all reports, known to be a hard-working, self-employed farmer throughout his life, who, in partnership with . . . Gloria Klee . . . was able to maintain a farming business in the town of Ellington, Connecticut, for many years. Both the decedent and [Gloria Klee] did physical work on the farm. However, while it was the decedent who was primarily involved in the actual physical operation of the farming business, it was [Gloria] Klee who did all the household chores and bookkeeping . . . .

         ‘‘Notwithstanding the fact that the decedent did not routinely write out checks to pay family household or business related bills, the decedent was nonetheless a competent and savvy businessman/farmer. . . . [According to the] plaintiff's expert witness, Attorney Atherton B. Ryan, the decedent was more than capable of managing and conducting his own affairs.'' (Internal quotation marks omitted.) Ryan's professional relationship with the decedent beganin2006 when the decedent hired Ryan to collect a debt from the decedent's daughter, Marjorie Heintz. During the litigation regarding the contested debt, Ryan advised the decedent to amend his will. The decedent directed Ryan to draft a new will[2] in order to ‘‘remove Marjorie from the will and to give Marjorie's one-third share to Marjorie's children, the defendant, David Boor, (a 2/9ths share) and [the defendant's] sister, Melissa Mascalla, (a 1/9th share).'' The decedent signed this will on June 13, 2006.

         Gloria Klee was diagnosed with cancer in 2005. Shortly thereafter, the plaintiff ‘‘assumed not only the role of caregiver for her mother during the period of her mother's final illness but also her mother's duties at the farm. This included not only doing the bookkeeping and bill-paying for the family household, but more importantly, assuming the responsibility for [the decedent's] well-being after Gloria [Klee] had died. With this in mind, the decedent and [Gloria Klee] made a conscious decision during the period of [her] last illness to apprise the plaintiff of their financial affairs. . . . [Gloria Klee] showed the plaintiff all of the financial and bookkeeping documents . . . .'' (Internal quotation marks omitted.)

         The decedent, Gloria Klee, and the plaintiff opened joint checking and savings accounts on April 5, 2006, in person at Bank of America.[3] On April 11, 2006, the decedent and Gloria Klee also made the plaintiff a joint owner with a right of survivorship on three certificate of deposit accounts at Rockville Bank. Gloria Klee died shortly after adding the plaintiff onto those accounts. The decedent closed all of the accounts at Bank of America and Rockville Bank on March 12, 2007.

         The decedent once again created a new will on January 11, 2012, to replace the June 13, 2006 will. The new ‘‘will provided a few specific bequests with the residuary of the decedent's estate to be divided equally between the plaintiff and the defendant . . . . No provision was made for the decedent's daughter, Marjorie, or the decedent's son, Frederick [Klee][4] . . . . [This will was] admitted to probate after the decedent's death . . . and the plaintiff was appointed executrix of the estate.''

         Although not explicitly set forth in the court's memorandum of decision, the following additional facts are not disputed by the parties and are consistent with the court's other findings. The plaintiff and decedent opened joint accounts with a right of survivorship at Rockville Bank, which is now known as United Bank. At the time of the decedent's death, the decedent and the plaintiff were signatories on a joint checking account, a joint savings account, and four joint certificate of deposit accounts at United Bank. The plaintiff did not probate the funds, totaling approximately $400, 000, in the bank accounts. Additional facts will be set forth as needed.

         I

         The defendant claims that the court erred by finding that the plaintiff became the sole owner of joint bank accounts held by the decedent and the plaintiff upon the decedent's death. We disagree.

         We begin by setting forth the relevant law pertaining to the ownership of joint bank accounts after the death of one account holder, as well as the standard that governs our review of the court's findings. Joint survivorship bank accounts are governed by General Statutes § 36a-290.[5] Case law interprets § 36a-290 (b) as giving rise to a rebuttable presumption that ‘‘the creation of a joint account is evidence of the intent of the person creating the account to have the proceeds go, upon his or her death, to the other joint account holder.'' Bunting v. Bunting, 60 Conn.App. 665, 679, 760 A.2d 989 (2000). A person challenging the survivor's right to ownership of the balance in the account must overcome the presumption with clear and convincing evidence. Garrigus v. Viarengo, 112 Conn.App. 655, 662, 963 A.2d 1065 (2009). The phrase ‘‘clear and convincing'' denotes a degree of belief that lies between a preponderance of the evidence and proof beyond a reasonable doubt. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). ‘‘[C]lear and convincing proof is strong, positive, free from doubt, and full, clear and decisive.'' (Internal quotation marks omitted.) Id., 537. When, however, the challenger presents clear and convincing evidence that the surviving account holder committed fraud, exerted undue influence on the deceased account holder; Garrigus v. Viarengo, supra, 662; or was in ‘‘ ‘a confidential relationship' '' with the deceased account holder, the burden of proof with regard to ownership shifts to the surviving account holder, who then has the burden of proving fair dealing or the absence of undue influence by clear and convincing evidence. Bunting v. Bunting, supra, 680.

         The issue of ownership upon the death of a joint account holder is a factual one. Driscoll v. Norwich Savings Society, 139 Conn. 346, 349, 93 A.2d 925 (1952). Appellate review of findings of fact is limited to the clearly erroneous standard. Bunting v. Bunting, supra, 60 Conn.App. 679. A finding of fact is deemed clearly erroneous when there is no evidence in the record to support it or when there is evidence, ‘‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Internal quotation marks omitted.) Id. This court ‘‘cannot retry the facts or pass upon the credibility of the witnesses.'' (Internal quotation marks omitted.) Id.

         The court stated that the defendant in this case bore the burden of persuasion, by clear and convincing evidence, to rebut ‘‘the statutory presumption vesting ownership in the surviving owner in a joint account upon the demise of the other joint account holder . . . .'' The court found that the defendant did not meet that burden. Because the court did not shift the burden to the plaintiff, it can be inferred that the court did not find that the plaintiff committed fraud, exerted undue influence on the decedent, or that she and the decedent were in a confidential relationship.

         In challenging the court's finding that the plaintiff became the sole owner of the accounts upon the decedent's death, the defendant makes four arguments. The defendant first argues that the court should have found that the plaintiff and the decedent were in a confidential relationship, shifting the burden of proof with regard to ownership of the accounts to the plaintiff. The defendant's second argument is that the present case is factually similar to Garrigus v. Viarengo, supra, 112 Conn.App. 655, and that it was improper for the court to rely on State v. Lavigne, 307 Conn. 592, 57 A.3d 332 (2012). The defendant's last two arguments are that the court erred by not finding that the plaintiff concealed the joint ownership of the accounts and that the court improperly weighed evidence concerning the decedent's intent.

         A

         The defendant argues that the court should have found that the plaintiff was in a confidential relationship with the decedent, shifting the burden of proof with regard to ownership of the accounts to the plaintiff.[6]The defendant's argument is predicated on portraying the decedent as a simple farmer, with little understanding of how to manage his personal finances, and inherently susceptible to the plaintiff's influence. The record, however, reveals a basis to conclude that this was not the case. First, the plaintiff's relationship with the decedent did not reflect the paradigms of a confidential relationship. Second, the record demonstrates that the decedent may not have been as ...


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