Salce v. Cardello

• Decision Date: 18 January 2022
• Docket Number: AC 43648
• Citation: 269 A.3d 889,210 Conn.App. 66
• Parties: John SALCE v. Joan CARDELLO
• Court: Connecticut Court of Appeals

210 Conn.App. 66

269 A.3d 889

John SALCE

v.Joan CARDELLO

AC 43648

Appellate Court of Connecticut.

Argued October 12, 2021

Officially released January 18, 2022

Kenneth A. Votre, New Haven, for the appellant (plaintiff).

Matthew D. McCormack, for the appellee (defendant).

Bright, C. J., and Elgo and DiPentima, Js.

BRIGHT, C. J.

The plaintiff, John Salce, appeals from the judgment of the Superior Court dismissing his appeal from the Probate Court's decision that the defendant, Joan Cardello, did not violate the in terrorem clauses set forth in their deceased mother's will and trust agreement. We affirm the judgment of the Superior Court.

The following facts, as found by the court, and procedural history are relevant to our resolution of this appeal. The plaintiff and the defendant are the son and daughter, respectively, of Mae Salce (Mae). Mae was the settlor of the Amended and Restated Mae Salce Revocable Trust Agreement (trust or trust agreement), which was established on June 29, 2005, and amended on April 3, 2008. The principal asset of the trust was Mae's interest in a piece of real property known as 113 Buffalo Bay in Madison (Buffalo Bay). The trust agreement provided that the defendant would serve as the trustee for the trust until Mae died, at which time Attorney Jay L. Goldstein would become the trustee. Pursuant to the terms of the trust agreement, on December 22, 2005, the defendant, acting as trustee of the trust, transferred a one-half interest in Buffalo Bay to herself. The trust agreement further provided that the defendant would receive the other one-half interest in Buffalo Bay at the time of Mae's death. On the same day that Mae amended the trust, she also executed her last will and testament. Consistent with the terms of the trust agreement, article third of the will provides that all of Mae's interest in Buffalo Bay was bequeathed to the defendant. It further provides that, if the defendant predeceased Mae, that Mae's interest in Buffalo Bay would be devised to "[the defendant's] issue, per stirpes or if there shall be no such issue to [the plaintiff] if [the plaintiff] shall survive me, of if [the plaintiff] shall not survive me to [the plaintiff's] issue, per stirpes." In article fourth of her will, Mae forgave the plaintiff's obligation to pay any outstanding amounts due to her pursuant to a December 22, 2001 promissory note in the principal amount of $700,000.¹ In article seventh of her will, Mae designated the defendant as the executor of her estate.

Both the trust agreement and the will contain an in terrorem clause providing that, if a beneficiary takes certain actions, he or she forfeits his or her rights as a beneficiary under the instruments. The in terrorem clause in the trust agreement provides in relevant part: "If [a] beneficiary under this Trust Agreement ... directly or indirectly ... (iv) objects in any manner to any action taken or proposed to be taken in good faith by any Trustee ... [and/or] (vii) files any creditor's claim against Trustee (without regard to its validity) ... then that person's right as a beneficiary of this Trust Agreement and to take any interest given to him or her by terms of this Trust Agreement ... shall be determined as it would have been determined if the person and the person's descendants had predeceased Settlor without surviving issue." The in terrorem clause in the will likewise states in relevant part: "If [a] beneficiary hereunder ... directly or indirectly ... (iv) objects in any manner to any action taken or proposed to be taken in good faith by any Executor or trustee ... [and/or] (vii) files any creditor's claim against my Executor (without regard to its validity) or trustee ... then that person's right as a beneficiary of this Will and any Codicil thereto or trust ... shall be determined as it would have been determined if the person and the person's descendants had predeceased me without surviving issue."

Mae died on April 12, 2012. Thereafter, Attorney Goldstein became the trustee of the trust pursuant to the terms of the trust, as well as the executor of Mae's estate, after the defendant declined to serve as the executor. While administering the estate, Attorney Goldstein sent letters to the beneficiaries, including the defendant, which detailed their required contributions for the payment of certain taxes and fees incurred by the estate. The beneficiaries were also permitted to inspect the Form CT-706/709 Connecticut Estate and Gift Tax Return (CT-706) that Attorney Goldstein had filed on behalf of the estate. When the defendant reviewed the CT-706, she noticed that a Citizens Bank account that belonged solely to her mistakenly had been listed as an asset of the estate. The defendant's attorney, Alphonse Ippolito, also reviewed the CT-706. In doing so, he realized that Attorney Goldstein also had inflated the value of the estate and increased the beneficiaries’ tax burdens by failing to deduct two outstanding loans that were secured by mortgages on Buffalo Bay.²

Attorney Ippolito raised these apparent errors with Attorney Goldstein, who then asked the defendant to "produce evidence verifying that the income received pursuant to the mortgages was expended in connection with the administration of the trust." The defendant did so, but Attorney Goldstein still refused to amend the CT-706 either to remove the Citizens Bank account or to deduct the outstanding mortgages. Attorney Goldstein did, however, indicate to Attorney Ippolito that he would amend the return if instructed to do so by the Probate Court. The defendant, on July 30, 2014, filed a request with the Probate Court for a hearing on these issues, but later withdrew the request for unknown reasons.

Thereafter, the plaintiff filed a complaint in the Probate Court alleging that the defendant's filing of her request for a hearing, and the issues raised therein, violated the in terrorem clauses in both the will and the trust agreement. Specifically, the plaintiff argued that the defendant had violated the in terrorem clauses by (1) filing a creditor's claim against the estate and (2) challenging Attorney Goldstein's refusal to amend the CT-706. Enforcement of the in terrorem clauses as requested by the plaintiff would cause Mae's bequeath of her one-half interest in Buffalo Bay to the defendant to be nullified and, pursuant to the terms of her will, result in that interest being bequeathed to the plaintiff. The plaintiff, on December 17, 2015, also instituted a lawsuit in Superior Court seeking to invalidate Attorney Goldstein's December, 2012 transfer by quitclaim deed of the estate's interest in Buffalo Bay to the defendant pursuant to the will and trust. In response to the plaintiff's complaint in the Probate Court, the defendant claimed that the plaintiff violated the in terrorem clauses by delaying the administration of the estate and by instituting the Superior Court action seeking to invalidate the transfer of the estate's remaining interest in Buffalo Bay to the defendant.

Following a hearing, the Probate Court concluded that neither the plaintiff nor the defendant had violated the in terrorem clauses. Furthermore, the Probate Court concluded that Attorney Goldstein had erred in including the Citizens Bank account in the estate's assets and ordered that it be removed from the accounting.

The plaintiff appealed from the Probate Court's refusal to enforce the in terrorem clauses against the defendant to the Superior Court, pursuant to General Statutes § 45a-186 (b).³ The defendant then filed a counterclaim in that appeal, alleging that the plaintiff had violated the in terrorem clauses by instituting the December 17, 2015 action to invalidate Attorney Goldstein's transfer of the estate's interest in Buffalo Bay to the defendant pursuant to the will and the trust.

The Superior Court held a five day trial de novo⁴ on the plaintiff's appeal and the defendant's counterclaim. Thereafter, the court issued a memorandum of decision, in which it concluded that neither party had violated the in terrorem clauses. With regard to the defendant, specifically, the court concluded that she had not violated the clauses because she (1) never filed a creditor's claim against the estate, and (2) acted in good faith, upon probable cause, and with reasonable justification when challenging Attorney Goldstein's actions in administering the estate and the trust, thus excusing any violations of the in terrorem clauses. The plaintiff then appealed to this court.⁵ Additional facts will be set forth below as necessary.

We first set forth our standard of review and the applicable law. In appeals in which the trial court has ruled on a probate appeal de novo, "we treat our scope of review as we would with any other Superior Court proceeding." Hynes v. Jones , 175 Conn. App. 80, 93, 167 A.3d 375 (2017), rev'd on other grounds, 331 Conn. 385, 204 A.3d 1128 (2019). When the court has made factual findings, we defer to those findings unless they are clearly erroneous. Id. "A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, 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.) Stilkey v. Zembko , 200 Conn. App. 165, 178, 238 A.3d 78 (2020). With regard to matters of law, however, including the proper construction of an in terrorem clause, our review is plenary. Hynes v. Jones , supra, at 93, 167 A.3d 375 ; see also Savage v. Oliszczak , 77 Mass. App. 145, 147, 928 N.E.2d 995 (2010) ("[t]he determination that the defendants’ challenge to the will did not trigger the trust's in terrorem clause is a legal conclusion that we review de novo" (internal quotation marks omitted)).

Our primary objective when interpreting a will or trust agreement is to ascertain and effectuate the intent of the testatrix and/or settlor....