Fantin v. Fantin

• Court: Connecticut Superior Court
• Writing for the Court: David R. Tobin, Judge Trial Referee.
• Decision Date: 06 September 2017
• Docket Number: FSTCV166027439S
• Citation: Fantin v. Fantin, FSTCV166027439S (Conn. Super. Sep 06, 2017)
• Parties: David Fantin v. Nancy Fantin et al. [1]

David Fantin v. Nancy Fantin et al. ^[1]

No. FSTCV166027439S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

September 6, 2017

UNPUBLISHED OPINION

OPINION

David R. Tobin, Judge Trial Referee.

The plaintiff in this case, David Fantin (David), is the fifty-seven-year-old son of Josephine Fantin (Josephine) and Antonio (Tony) Fantin, both of whom are deceased. The named defendant, Nancy Fantin (Nancy) is the forty-eight-year-old daughter of Josephine and Tony. At the start of the trial on July 12, 2017, the court determined that a third sibling Michael Fantin (Michael) the fifty-two-year-old son of Josephine and Tony was a necessary party. Thereafter, Michael entered his appearance as a defendant. As of the date of trial, neither Nancy nor Michael married or had any descendants. David was married and had several children.

Josephine a resident of Greenwich, died on July 13, 2015. Her husband Tony, also a resident of Greenwich, died less than three months later on October 3, 2015. Both decedents had signed wills dated October 27, 2004 (Exs. 51 & 53, respectively) and two codicils dated December 12, 2008 and August 8, 2014 (Exs 52, 54, 27 & 28, respectively). Although the wills and codicils were filed in the Greenwich Probate Court shortly after the deaths of Josephine and Tony, that court has not taken action on a pending application to admit those documents to probate. Each of the wills makes provision for the surviving spouse with the assets owned by the last to die (along with any assets held in testamentary trusts) to pour over into the survivor's revocable trust. The first and second codicils do not change the plan of disposition but changed the identity of the substitute executors.^[2]

Revocable trusts were originally established by Josephine and Tony on May 4, 1995. (Exs. 63 & 64, respectively.) Both trusts provide that, upon the death of the survivor of Josephine and Tony their remaining assets would be held in trust for the benefit of their descendants. Since all three of their children survived them, the original provisions of the trusts would have resulted in the establishment of three equal trusts, one for the benefit of each child. The trusts further granted each child a general power of appointment over the balance of the trust remaining upon that child's death. If the power of appointment was not exercised, the remainder of the trust would be distributed to the child's issue per stirpes, and in default of issue, to the descendants of Josephine and Tony per stirpes. Josephine and Tony were named as co-trustees of both trusts and David was named as sole successor trustee.^[3] Each of the trusts were amended and restated on October 27, 2004. (Ex. 41 & 43, respectively.) The amendments made on that date are not relevant to the issues of this litigation.

On December 8, 2008, Josephine and Tony executed second amendments to their trusts changing the successor trustee from David, alone to David, Michael and Nancy as successor co-trustees. A provision was added allowing a majority of the successor co-trustees to resolve any disagreements. (Ex. 42 & 44, respectively.)

On August 8, 2014, Josephine and Tony executed third amendments to their trusts changing the successor trustees from all three children to David and Nancy only, thereby eliminating Michael as a potential successor co-trustee. The same amendment changed the allocation of assets between the trusts established for the benefit of their descendants after the death of the survivor of Josephine and Tony. Provided that Nancy was then alive, the residence owned jointly by Josephine and Tony at 10 Perna Lane, in the Riverside section of Greenwich, was given to the trust established for Nancy's benefit. The remaining assets owned by the survivor of Josephine and Tony were to be divided equally between the three trusts established for their three children.^[4]

Following his parents' deaths in 2015, David commenced this litigation. In his complaint, dated January 14, 2016, David makes the following claims: First count--the third amendments to the revocable trusts established by Josephine and Tony are invalid due to undue influence exerted upon them by Nancy. Second count--the third amendments to the revocable trusts established by Josephine and Tony are invalid due to their lack of capacity. Third count--the third amendments to the revocable trusts established by Josephine and Tony are invalid due to fraud. Each of the first three counts ask the court for a judgment " invalidating and declaring void ab initio the Purported Third Trust Amendments to the Josephine Fantin and Antonio Fantin Revocable Trusts . Fourth Count--asks that Nancy account for her actions as trustee of both revocable trusts. Fifth Count--action to remove Nancy of trustee of the revocable trusts established by Josephine and Tony because of her misconduct.

On March 17, 2016, Nancy filed an answer and counterclaims admitting the background facts but denying the allegations of undue influence, lack of capacity and David's other claims of wrongdoing. Nancy also asserted two counterclaims against David. The first counterclaim asks for David's removal as successor co-trustee of the revocable trusts established by Josephine and Tony. The second counterclaim asserts that Nancy is entitled to be reimbursed from the assets of the revocable trusts for the legal fees and other expenses she incurred in defense of David's claims.

After Nancy withdrew her claim for a jury trial, the court began hearing the case on July 12, 2017. Before evidence was offered the court questioned counsel for David and Nancy as to whether the case could proceed unless Michael Fantin was cited in as a party. The court noted that both Michael, his potential appointees (should he exercise his power of appointment) or his potential descendants (should he not) would be effected by the outcome of the litigation and questioned whether, under the circumstances, Michael was a necessary party. The court determined that, pursuant to General Statutes § § 45a-487a, 45a-487b and 45a-487d, each of the children of Josephine and Tony could represent their potential appointees and descendants (whether unborn or presently alive). Michael, who was present in the courtroom, agreed with counsel for David and Nancy that he could be considered a party defendant and he immediately filed his appearance as a self-represented party. At the end of the trial, in response to the court's inquiry, Michael stated that he supported David's claims both with respect to his parents' incapacity and with respect to the third amendments to the trusts being the product of Nancy's undue influence.

Shortly after the start of evidence, it became apparent to the court, that following the deaths of Josephine and Tony, none of their children had assumed the responsibilities of or acted as a trustee of the revocable trusts. Pursuant to Practice Book § 10-1, the court requested the plaintiff to simplify the pleadings to delete any claims for relief founded on the claim that Nancy had assumed the office of successor trustee and could be removed from that office or made to account for her actions in that capacity. On July 14, 2017 the plaintiff filed an amended complaint which, instead of simplifying the issues in the case, added allegations concerning Nancy's actions under power of attorney which had already been approved by the Greenwich Probate Court. (Exs. 2-4.) After the close of evidence, the court declined to allow the proposed amendment to the complaint.

THE EVIDENCE

The court heard evidence over seven days commencing on July 12 2017 and concluding on July 21, 2017. During the trial, the court heard testimony from numerous witnesses including:

Paul Cappiali, a friend and neighbor of Josephine and Tony. He and his wife, Olive, knew the Fantin family for over fifty years. He was certain that Tony was in full possession of all of his faculties despite the brain surgery that he had undergone in 2001. He reported that David went off to college and Michael also left home, but Nancy, for the most part, stayed home. Accordingly to Paul, Nancy was " the apple of Tony's eye." Nancy was handicapped by her near blindness, but in Paul's view it worked out for the family, since she was home to help her parents. Despite her handicap, Nancy had a strong personality and Paul advised that you never wanted to disagree with her. If you did, she might cut off all communication with you. In the Fantin family, all three children had strong opinions which led to conflicts and disharmony.

While Nancy and Michael were both living at home, Josephine approached Paul and asked him to help her get Michael to move out. She was afraid of him and did not want to risk angering him by refusing him the money he was always trying to get from her. After Michael moved out, he stayed with Paul while he tried to raise money to travel to India. Paul offered to give him the money, but Michael refused saying that he would rather get the money from his parents.

After his brain surgery, Tony insisted on being fed through a tube, even though his doctors said there was no medical reason he could not swallow food. Similarly, at a later date when Tony was sent to Nathaniel Witherell Hospital for rehabilitation, he used a walker he was given, even though he had no difficulty in walking.

Paul testified that he was not in favor of the changes which Josephine and Tony proposed to make to their trusts and communicated his views to Tony. Tony responded by telling him to mind his " own god damn business." Later Josephine explained the reasons for the changes to Paul: 1) Nancy is nearly totally blind, but she knows her way around the Perna Lane house and is comfortable there; 2) Tony...