Holloway v. Carvalho

• Court: Connecticut Court of Appeals
• Writing for the Court: SHELDON, J.
• Citation: Holloway v. Carvalho, 206 Conn.App. 371, 261 A.3d 57 (Conn. App. 2021)
• Decision Date: 03 August 2021
• Docket Number: AC 43831
• Parties: Stacy HOLLOWAY v. Linda CARVALHO et al.

206 Conn.App. 371

261 A.3d 57

Stacy HOLLOWAY

v.Linda CARVALHO et al.

AC 43831

Appellate Court of Connecticut.

Argued March 16, 2021

Officially released August 3, 2021

Joseph A. Hourihan, Hartford, with whom was William S. Shapiro, for the appellant (plaintiff).

Linda L. Morkan, Hartford, with whom was Christopher J. Hug, for the appellees (defendants).

Elgo, Moll and Sheldon, Js.

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 November 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 decedent to his initial meeting with Bellobuono and personally attended that meeting. During the meeting, Bellobuono 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 defendant "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 decedent's estate, in her answer dated August 27, 2018.

Thereafter, on September 20, 2019, the parties submitted 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 influence 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 internist 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 psychiatrist whom the defendant had called as an expert witness.

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 complicated legal document such as a will. On those bases, Olivieri concluded that the decedent lacked testamentary capacity to execute the challenged will on December 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 September 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 challenged 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 briefing 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 evidence 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...