Erickson v. Erickson, 15860

• Court: Connecticut Supreme Court
• Writing for the Court: BORDEN; BERDON
• Citation: Erickson v. Erickson, 716 A.2d 92, 246 Conn. 359 (Conn. 1998)
• Decision Date: 18 August 1998
• Docket Number: No. 15860,15860
• Parties: Alicia ERICKSON et al. v. Dorothy ERICKSON, Executrix (Estate of Ronald K. Erickson).

Page 92

716 A.2d 92

246 Conn. 359

Alicia ERICKSON et al. v. Dorothy ERICKSON, Executrix (Estate of Ronald K. Erickson).

No. 15860.

Supreme Court of Connecticut.

Argued March 24, 1998.

Decided Aug. 18, 1998.

Alinor C. Sterling, with whom was Howard A. Jacobs, New Haven, for appellant-appellee (named plaintiff).

Jeremiah Donovan, Old Saybrook, for appellee-appellant (defendant).

Before BORDEN, BERDON, KATZ, PALMER and PETERS, JJ. ¹

BORDEN, Associate Justice.

The dispositive issue in this appeal is whether, pursuant to General Statutes (Rev. to 1995) § 45a-257 (a), the trial court should have admitted extrinsic evidence regarding the decedent's intent that his will would not be revoked automatically by his subsequent marriage. ² The named plaintiff, Alicia Erickson, ³ who is the daughter of the decedent, Ronald K. Erickson, appeals ⁴ from the judgment of the trial court in favor of the defendant, Dorothy Erickson, ⁵ the executrix of the estate of the decedent, dismissing the plaintiff's appeal from the decree of the Probate Court for the district of Madison. The Probate Court had admitted the will of the decedent to probate. The trial court ruled that the decedent's will, which had been executed shortly before his marriage to the defendant, provided for the contingency of marriage.

The plaintiff claims on her appeal that the trial court improperly concluded that the decedent's will provided for the contingency of marriage. ⁶ The defendant claims on her cross appeal that the trial court improperly excluded certain extrinsic evidence regarding the decedent's intent. We conclude that the trial court should have permitted the defendant to introduce extrinsic evidence of the decedent's intent. Accordingly, we reverse the judgment of the trial court and order a new trial.

Certain facts in this appeal are undisputed. On September 1, 1988, the decedent executed a will. At that time, he had three daughters and was unmarried. Two days later, on September 3, 1988, he married the defendant. He died on February 22, 1996.

The six articles of the his will provide as follows. ⁷ The first article provides for the payment of funeral expenses and debts by the estate. The second article states that the residue of the estate will pass to the defendant. The third article provides that if the defendant predeceases the decedent, one half of the residuary estate will pass in equal parts to the decedent's three daughters, Laura Erickson Kusy, Ellen Erickson Cates and Alicia Erickson, and one half of the residuary estate will pass in equal parts to Thomas Mehring, Christopher Mehring, Maureen Mehring and Kathleen Mehring, the children of the defendant. The fourth article appoints the defendant as the executrix of the will, with Attorney Robert O'Brien as the contingent executor in the event that the defendant is unable to or refuses to serve as executrix. The fifth article gives the executrix or executor the power to dispose of property of the estate as necessary. The sixth article appoints the defendant as the guardian of any of the decedent's children who have not reached the age of eighteen at the time of his death.

The Probate Court admitted the decedent's will to probate. The plaintiff appealed from the Probate Court's judgment. Prior to trial, the plaintiff filed a motion in limine to exclude extrinsic evidence of the decedent's intent. The plaintiff argued that "[§ ] 45a-257 makes the Court's inquiry very simple: to determine whether the will was revoked, the Court need examine only [the decedent's] will, his marriage certificate to [the defendant], and his death certificate. Extrinsic evidence regarding [the decedent's] intentions is inadmissible because the language of [the decedent's] will is unambiguous, and therefore under ... [§ ] 45a-257 the operation of the marriage to revoke the will is automatic and mandatory." The defendant, in opposition to the plaintiff's motion, made a detailed offer of proof to show the contrary intent of the decedent. ⁸

The admission of certain evidence was undisputed, namely, the will, the marriage certificate of the decedent and the defendant, and the decedent's death certificate. The trial court denied the plaintiff's motion in limine with respect to the evidence that Thomas Mehring, Christopher Mehring, Maureen Mehring and Kathleen Mehring, who were named beneficiaries in the will, are the children of the defendant. The court granted the motion in limine, however, with respect to any other evidence regarding the decedent's intent.

With respect to the other issue at trial, namely, whether the decedent's will provided for the contingency of his marriage to the defendant, the trial court, in a de novo proceeding, concluded that the Probate Court properly had admitted the will to probate because the will provided for the contingency of marriage. The trial court reasoned that "[the decedent's] will bequeathed all of his estate to the woman he was licensed to marry and did marry two days later. In his will, he named her executrix and designated her the guardian of his daughters, whose mother had previously died. The nature of these provisions, coupled with the extreme closeness in time of the marriage constitutes clear and convincing evidence of provision for the contingency of marriage. It would be preposterous to assume that [the decedent] was instead executing a will to make provisions that were to be revoked two days later." Accordingly, the trial court rendered judgment affirming the Probate Court's judgment admitting the will, and denied the plaintiff's appeal. This appeal followed.

The plaintiff claims that because the will did not expressly provide for the contingency of marriage, the trial court improperly concluded that the decedent's will provided for the contingency of marriage and, therefore, that his subsequent marriage did not automatically revoke his will under § 45a-257 (a). The plaintiff argues that in determining whether a will provides for contingency of a subsequent marriage, the court may consider only the language of the will, and that the will in question in this case does not include any language referring to the contingency of marriage, such as "the words 'if I marry,' 'when I marry,' 'my future wife' or even 'my fiancee.' In fact the words 'wife,' 'spouse' and 'marry' do not appear within the four corners of the will."

In contrast, the defendant claims that the trial court improperly excluded extrinsic evidence of the decedent's intent establishing that his subsequent marriage to her would not result in the revocation of his will. ⁹ In the alternative, the defendant argues that there is sufficient language within the will itself, without resort to extrinsic evidence, to indicate that the decedent did not intend for his will to be revoked upon his marriage to her.

We conclude that the will, in and of itself, did not provide for the contingency of the subsequent marriage of the decedent and, therefore, under existing case law, properly would have been revoked by that marriage pursuant to § 45a-257 (a). We also conclude, however, that under the circumstances of this case, the trial court improperly excluded evidence of a mistake by the scrivener that, if believed, would permit a finding that the will provided for the contingency of marriage. We therefore reverse the judgment of the trial court and order a new trial in which such evidence may be considered by the trial court.

On the basis of existing case law, the question of whether a will provides for the contingency of a subsequent marriage must be determined: (1) from the language of the will itself; and (2) without resort to extrinsic evidence of the testator's intent. ¹⁰ Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 372, 11 A.2d 393 (1940) (execution of will followed by adoption of child; no language in will providing for such contingency); Strong v. Strong, 106 Conn. 76, 79-80, 137 A. 17 (1927) (execution of will followed by birth of child; no language in will providing for such contingency); cf. Czepiel v. Czepiel, 146 Conn. 439, 442, 151 A.2d 878 (1959) (language in will provided for possible subsequent marriage); Blake v. Union & New Haven Trust Co., 95 Conn. 194, 196-97, 110 A. 833 (1920) (language in will provided for subsequent birth of child). Applying this standard, we conclude that the trial court should not have admitted the will because, notwithstanding the inferences that the trial court drew from the dates of the marriage license and the will, and from the identity of certain of the named beneficiaries in the will, there was no language in the will providing for the contingency of the subsequent marriage of the decedent. Thus, this will fell on that side of the dividing line encompassing those wills that do not, in and of themselves, provide for such a contingency; see Fulton Trust Co. v. Trowbridge, supra, at 372, 11 A.2d 393; Strong v. Strong, supra, at 80, 137 A. 17; and beyond that side of the line encompassing those wills that do provide for such a contingency. See Czepiel v. Czepiel, supra, at 440, 151 A.2d 878; Blake v. Union & New Haven Trust Co., supra, at 196, 110 A. 833.

This conclusion does not, however, end our inquiry in this case. In Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 2, 448 A.2d 190 (1982), this court considered the issue of "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." In a three to two decision, this court held that such evidence is not admissible. Id., at 9, 448 A.2d 190. Upon further consideration, we now conclude that the reasons given by the dissent in that case are persuasive and apply to the facts of the present case. We, therefore, overrule Connecticut Junior Republic, and hold that if a scrivener's error has misled the testator into executing a will on the belief that it will be valid...