Connecticut Junior Republic v. Sharon Hosp.

Citation188 Conn. 1,448 A.2d 190
Decision Date10 August 1982
CourtSupreme Court of Connecticut

John W. Barnett, with whom was Patrick M. Noonan, New Haven, for appellants (plaintiffs).

Albert Zakarian, with whom were Jon E. Hayden, Hartford, and, on the brief, Raymond B. Green, Hartford, for appellees (defendants Springfield Hosp. et al.).

Samuel R. Dorrance, New Canaan, for appellee (defendant American Society for the Prevention of Cruelty to Animals).


ARTHUR H. HEALEY, Associate Justice.

The sole issue presented in this case is whether extrinsic evidence of a mistake by a scrivener of a testamentary instrument is admissible in a proceeding to determine the validity of the testamentary instrument. On October 3, 1979, Richards Haskell Emerson, a resident of Lakeville, died at the age of seventy-nine. He had never married and left several cousins as his closest heirs at law. Emerson left a will dated May 19, 1960, and two codicils dated December 4, 1969 (first codicil) and October 24, 1975 (second codicil), all of which were offered for probate by the named executor, the Third National Bank of Hampden County, Springfield, Massachusetts.

The Probate Court for the district of Salisbury admitted the will and codicils on February 19, 1980, after a hearing on the application for probate. This appeal rises out of the court's decision to admit portions of the second codicil which the plaintiffs contend were inserted by mistake of the scrivener and therefore do not embody the dispositions intended by the testator.

Contained in the decedent's will are three articles which set up trusts for the distribution of part of the decedent's estate and designate, as remaindermen, seven named charitable organizations (1960 charities), 1 the defendants in this case. In the first codicil to his will, the decedent deleted the seven 1960 charities and substituted another group of eleven charitable organizations (1969 charities) as remaindermen, 2 which are the plaintiffs in this case. There was only one charity named in both the will and the first codicil. 3

Subsequently, in 1975, the decedent instructed the trust officer of the Third National Bank of Hampden County to make changes in his will, as amended by the first codicil, so as to qualify the trusts as charitable annuity trusts under the Tax Reform Act of 1969, so that the charitable remainder interests would be allowable as federal estate tax deductions. The trust officer, thereafter, similarly instructed the decedent's attorney. The attorney, however, in drafting the second codicil, not only made the requested changes but also mistakenly reinstated the 1960 charities, which had originally been named in the will, as beneficiaries under two of the three articles of the will which are relevant to this case. 4 The decedent, who had never requested or authorized this change, signed the second codicil apparently without realizing the change in beneficiaries.

At the hearing on the application for the admission of the will and the two codicils, the Probate Court heard evidence on the matter and ruled that Connecticut law does not permit the introduction of extrinsic evidence on the issue of mistake, and found that in the absence of such evidence the presumption of the validity of a testamentary instrument mandated the admission of the entire second codicil to probate. 5 On appeal to the Superior Court, the defendants moved to strike the plaintiffs' reasons of appeal. Practice Book § 194. The Superior Court granted the defendants' motion and held that extrinsic evidence is not admissible to prove that the second codicil, which uses unambiguous language, contained a mistake due to a scrivener's error and, therefore, should not be admitted to probate. The defendants next joined in the executor's motion for summary judgment which was granted by agreement of the parties. 6 From this judgment, the plaintiffs have appealed to this court.

The plaintiffs claim that the lower court erred (1) in failing to find a distinction between a "will construction" proceeding and a proceeding to "admit a will to probate"; (2) in failing to hold that Connecticut cases support the admissibility of extrinsic evidence to prove that material has been mistakenly inserted into a testamentary instrument; (3) in holding that the second codicil contained no inconsistencies or ambiguities; and (4) in holding that the policy behind the statute of wills is inconsistent with the admissibility of extrinsic evidence to prove lack of testamentary intent for any valid reason including mistake.


The plaintiffs' first argument states that since the issue in this case is the validity of the second codicil and not its meaning, extrinsic evidence should be admissible to prove the scrivener's error. Specifically, they claim that courts which have considered the question have made a distinction between proceedings to admit a will to probate and will construction proceedings, holding or recognizing that extrinsic evidence showing a scrivener's error is admissible in the former but not in the latter proceeding, absent an ambiguity. See annot., 90 A.L.R.2d 924, 931. Because of the scrivener's error, the plaintiffs claim that the mistake in reinstating the 1960 charities into the second codicil should have been allowed to have been proven by extrinsic evidence and should not have been admitted to probate. The lower court rejected this argument.

"In connection with the distinction between probate or contest proceedings and proceedings to construe a will as affecting the admissibility of extrinsic evidence, it is appropriate to note that in solving the problem of the effect of a draftsman's mistake, whether upon the validity of the will or upon its operation, the courts must weigh the desirability of effectuating the testator's true intention and the corresponding undesirability of admitting to probate and putting into operation a will which does not express his true intent, against the danger of invalidating upon parol evidence an instrument executed in compliance with statutory requirements, the danger of relying upon parol evidence being greater in cases of wills than in cases involving other instruments, because the testator's testimony is not available." Annot., 90 A.L.R.2d 924, 928, § 2.

In Connecticut, our cases have not, to this point, distinguished between the two types of proceedings. See Stearns v. Stearns, 103 Conn. 213, 130 A. 112 (1925) (will construction proceeding); Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254 (1830) (proceeding to establish a will); Avery v. Chappel, 6 Conn. 270 (1826) (proceeding to establish a will). Neither the plaintiffs nor the defendants have presented us with any Connecticut authority which recognizes any distinction between the rules of evidence applicable to either of these two forms of proceedings. 7 While it is obvious that the purpose behind each type of proceeding may be different, 8 we are not inclined to establish a rule which would effectuate such a distinction. It would be unwise to maintain a separate rule regarding the admission of extrinsic evidence for each of these two proceedings. This is because a litigant, knowing that more favorable evidentiary rules await those with claims of mistake due to scrivener's error, will always strive to phrase his argument in a way so to state such a claim. See generally Stearns v. Stearns, supra, 103 Conn. 224, 130 A. 112; Comstock v. Hadlyme Ecclesiastical Society, supra, 264-66; McFarland v. Chase Manhattan Bank, 32 Conn.Sup. 20, 30, 337 A.2d 1 (1973), aff'd, 168 Conn. 411, 362 A.2d 834 (1975).

This result would elevate the form over the substance of the argument and transform probate proceedings into mere semantic exercises. As an example, we point to the situation where a beneficiary under an unambiguous will, which also contains a scrivener's error, or words which effectuate a different result than that allegedly intended, knows that the extrinsic evidence demonstrating the mistake or a different intention than that expressed in the will is inadmissible in a will construction proceeding. To avoid this substantive barrier, he can merely rephrase his argument to allege that the scrivener did not follow instructions and, therefore, the will, even though otherwise validly executed, should not be admitted to probate since it does not represent the testator's true intention. See Stearns v. Stearns, supra, 103 Conn. 223, 130 A. 112; see also Travelers Bank & Trust Co. v. Birge, 136 Conn. 21, 27, 68 A.2d 138 (1949). Such a situation would expose many wills to litigation merely because a disappointed beneficiary did not receive exactly what he thought the testator would leave him. If a testator, during his lifetime, represented to a beneficiary that he would receive a certain bequest and, later, the testator changed the bequest in his will but neglected to inform the beneficiary, the beneficiary, knowing that extrinsic evidence is admissible in one but not the other proceeding, could certainly at least allege a scrivener's error and challenge the will's admission to probate on the basis that the testamentary document did not represent the true intent of the testator. This would tend to produce needless litigation by transforming a simple will construction proceeding into an admission to probate problem where no problem may have actually existed.

In order to avoid this, we believe that the better course is to recognize that the same evidentiary rules apply to both types of proceedings.


We now turn to the major issue presented by this case. The trial court held that "parol evidence may not be admitted in the instant case to show that the scrivener erred in drafting the codicil or that the testator mistakenly signed it. Connecticut law does not allow extrinsic evidence of a...

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