Salce v. Cardello ( 2022 )

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JOHN SALCE v. JOAN CARDELLO
(AC 43648)
Bright, C. J., and Elgo and DiPentima, Js.
Syllabus
The plaintiff and the defendant were beneficiaries of a will and a trust
executed by their mother, M. The will and trust agreement contained
in terrorem clauses, which provided, inter alia, that if a beneficiary filed
a creditor’s claim against the estate, or objected in any manner to any
action taken or proposed to be taken in good faith by the fiduciary of
either instrument, then that beneficiary would forfeit his or her inheri-
tance. While the fiduciary was administering M’s estate, the defendant
and her attorney realized that the fiduciary had apparently made errors
in connection with a state tax form that he had filed on behalf of the
estate. The defendant’s attorney raised these concerns with the fiduciary,
and the defendant provided the fiduciary with certain documentation
at his request, but the fiduciary indicated that he would not amend the
state tax form unless he was instructed to do so by the Probate Court.
The defendant subsequently filed a request with the Probate Court for
a hearing on those issues, but later withdrew that request for unknown
reasons. Thereafter, the plaintiff filed a complaint in the Probate Court
seeking to enforce the in terrorem clauses against the defendant, and the
Probate Court denied his request. Subsequently, the plaintiff appealed
to the Superior Court from the Probate Court’s decision. The Superior
Court held a trial de novo and rendered judgment dismissing the plain-
tiff’s appeal. Held:
1. The plaintiff could not prevail on his claim that the defendant violated
the in terrorem clauses by filing a creditor’s claim against the estate:
the Superior Court’s finding that the defendant did not make a creditor’s
claim against the estate was not clearly erroneous because, although
the defendant had provided the fiduciary with documentation of
expenses she incurred on behalf of the trust, the record contained
testimony from the defendant, her attorney, and the fiduciary explaining
that it was the fiduciary who had requested that documentation; more-
over, the defendant’s attorney testified that the defendant never pre-
sented the fiduciary with a written request for reimbursement, as
required by the applicable statute (§ 45a-358 (a)), no evidence of such
a written demand was introduced at trial, the fiduciary himself testified
that he did not recall receiving a formal written request for reimburse-
ment, and both the defendant and her attorney testified that the defen-
dant had no intention of being reimbursed.
2. This court concluded that, although the defendant technically violated
the in terrorem clauses that prohibited a beneficiary from objecting to
any actions taken by the fiduciary when she filed her request with the
Probate Court, given the facts of the present case, those clauses were
unenforceable against the defendant as a matter of public policy: the
application of the clear and unambiguous language of the in terrorem
clauses punished M’s beneficiaries from objecting to any actions of the
fiduciary, including nondiscretionary, ministerial acts, which under-
mined important private and public interests, such as a beneficiary’s
interest in protecting the estate’s assets, the state’s interest in receiving
accurate tax filings and payments, and judicial oversight of the fiducia-
ry’s actions; moreover, in the present case, the fiduciary unquestionably
made a mistake on the state tax form, and, in strictly complying with
the in terrorem clauses, the defendant could not seek judicial review
to correct that mistake, without risking forfeiture, despite its potential
impact on her finances, the assets of the estate, and the accuracy of the
fiduciary’s filings with the Probate Court and the state of Connecticut.
Argued October 12, 2021—officially released January 18, 2022
Procedural History
Appeal from the decision of the Probate Court for
the district of Branford-North Branford denying the
plaintiff’s request to enforce certain provisions of a will
and a trust agreement, brought to the Superior Court in
the judicial district of New Haven, where the defendant
filed a counterclaim; thereafter, the matter was tried
to the court, Wilson, J.; judgment in favor of the plaintiff
on the defendant’s counterclaim and dismissing the
plaintiff’s appeal, from which the plaintiff appealed to
this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Matthew D. McCormack, for the appellee (defen-
dant).
Opinion
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 defen-
dant, 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 Supe-
rior Court.
The following facts, as found by the court, and proce-
dural 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 Decem-
ber 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 defen-
dant 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 credi-
tor’s claim against Trustee (without regard to its valid-
ity) . . . 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] benefi-
ciary 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 exec-
utor. While administering the estate, Attorney Goldstein
sent letters to the beneficiaries, including the defendant,
which detailed their required contributions for the pay-
ment 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 real-
ized that Attorney Goldstein also had inflated the value
of the estate and increased the beneficiaries’ tax bur-
dens 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 Pro-
bate 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 plain-
tiff’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 includ-
ing 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 coun-
terclaim 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 vio-
lated 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 mis-
take 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, how-
ever, including the proper construction of an in ter-
rorem clause, our review is plenary. Hynes v. Jones,
supra, 93; 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 omit-
ted)).
Our primary objective when interpreting a will or
trust agreement is to ascertain and effectuate the intent
of the testatrix and/or settlor. Canaan National Bank
v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991). ‘‘In
searching for that intent, we look first to the precise
wording employed by the testatrix [or settlor] in [the
will or trust agreement] . . . for the meaning of the
words as used by the testatrix [or settlor] is the equiva-
lent of her legal intention—the intention that the law
recognizes as dispositive.’’ (Citations omitted.) Id., 335–
36. Where the language of a will or trust agreement
is clear and unambiguous, the plain meaning of the
instrument controls. Palozie v. Palozie, 283 Conn. 538,
546–47, 927 A.2d 903 (2007); see also Canaan National
Bank v. Peters, supra, 337 (‘‘[a] court may not stray
beyond the four corners of the will where the terms of
the will are clear and unambiguous’’ (internal quotation
marks omitted)).
An in terrorem clause is a provision within a will or
trust agreement that typically states that if a beneficiary
to the will or trust contests that instrument, his or
her inheritance or benefits under the instrument are
forfeited. See McGrath v. Gallant, 143 Conn. App. 129,
132 n.1, 69 A.3d 968 (2013) (‘‘[a]n in terrorem, or no-
contest, clause is [a] provision designed to threaten one
into action or inaction; esp., a testamentary provision
that threatens to dispossess any beneficiary who chal-
lenges the terms of the will’’ (internal quotation marks
omitted)). As a general rule, in terrorem clauses are
valid in Connecticut. See South Norwalk Trust Co. v.
St. John, 92 Conn. 168, 174–75, 101 A. 961 (1917). Such
clauses, however, are disfavored by the courts and thus
must be construed strictly to prevent forfeiture. In re
Probate Appeal of Stuart, Superior Court, judicial dis-
trict of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-
S (February 22, 2012) (53 Conn. L. Rptr. 558). Moreover,
for an in terrorem clause to be valid, the clause must
be certain, lawful, and not opposed to public policy.
See Peiter v. Degenring, 136 Conn. 331, 335, 71 A.2d
87 (1949) (‘‘[a testatrix] may impose such conditions
as [she] pleases upon the vesting or enjoyment of the
estate [she] leaves, provided they are certain, lawful
and not opposed to public policy’’). In the case of will
contests specifically, Connecticut law also recognizes
an exception to the enforcement of in terrorem clauses
when a beneficiary’s contest of the will was ‘‘made in
good faith, and upon probable cause and reasonable
justification . . . .’’ South Norwalk Trust Co. v. St.
John, supra, 177.
On appeal, the plaintiff claims that the defendant
violated the in terrorem clauses in both the will and
the trust agreement by (1) filing a creditor’s claim
against the estate and (2) objecting to the actions that
Attorney Goldstein took with respect to the estate’s CT-
706. We review each claim in turn.
I
The plaintiff first contends that the defendant vio-
lated the in terrorem clauses by filing a creditor’s claim
against the estate. Specifically, the plaintiff argues that
the list of expenses that the defendant provided to Attor-
ney Goldstein, in response to his request that she pro-
vide documentation that the proceeds from the loans
and mortgages she entered into as trustee were
expended in connection with the administration of the
trust, constituted a creditor’s claim filed against the
estate. We are not persuaded.
The in terrorem clauses in both the will and the trust
agreement state that a beneficiary forfeits his or her
inheritance if he or she files a creditor’s claim against
either the executor or the trustee. A creditor’s claim is
a demand for payment or reimbursement from an
estate. See General Statutes § 45a-353 (d) and (e). For
a creditor’s claim to be properly filed, the party with
the claim must present the claim, in writing, to the
fiduciary. General Statutes § 45a-358 (a) (‘‘[e]very claim
shall be presented to the fiduciary in writing’’); Keller
v. Beckenstein, 305 Conn. 523, 533, 46 A.3d 102 (2012)
(‘‘a party who holds a claim against an estate must
present that claim first to the fiduciary’’).
The court found that the defendant did not make a
creditor’s claim against the estate because she never
submitted a written demand for reimbursement to
Attorney Goldstein. Accordingly, the court held that the
defendant had not violated the in terrorem clauses by
filing a creditor’s claim. Because this is a factual finding,
we defer to the trial court unless that finding was clearly
erroneous. See Hynes v. Jones, supra, 175 Conn. App.
93. We conclude that this finding was not clearly errone-
ous.
The defendant, Attorney Ippolito, and Attorney
Goldstein all testified that it was Attorney Goldstein
who had requested the documentation of expenses on
behalf of the trust and that he had done so to help
determine whether it was proper to deduct the out-
standing loans from the value of the estate. Attorney
Ippolito also testified that the defendant never pre-
sented Attorney Goldstein with a written request for
reimbursement, as required by § 45a-358 (a). Indeed,
Attorney Goldstein himself testified that he did not
remember ever receiving a formal written request for
reimbursement. Moreover, no evidence of such a writ-
ten demand pursuant to § 45a-358 (a) was ever intro-
duced at trial, and both the defendant and Attorney
Ippolito testified that the defendant had no intention
of being reimbursed.6
Therefore, because the record supports the court’s
conclusion that the defendant never filed a creditor’s
claim against Attorney Goldstein, that factual finding
is binding upon this court. Accordingly, we agree with
the court’s conclusion that the defendant did not violate
the in terrorem clauses by filing a creditor’s claim.7
II
The plaintiff also contends that the defendant vio-
lated the in terrorem clauses when she challenged Attor-
ney Goldstein’s refusal (1) to remove her Citizens Bank
account from the estate’s CT-706 and (2) to deduct the
outstanding mortgages from the value of the estate. The
court did not address whether the defendant violated
the express terms of the in terrorem clauses when she
challenged Attorney Goldstein’s actions. Instead, the
court concluded that the defendant’s challenges to
Attorney Goldstein’s actions did not violate the in ter-
rorem clauses because they were made in good faith,
upon probable cause, and with reasonable justifica-
tion.8
The plaintiff argues on appeal that the court erred
in its analysis because Connecticut does not recognize
a good faith exception to the enforcement of an in
terrorem clause that protects a fiduciary’s actions from
challenge. He thus argues that the defendant’s request
for a hearing in the Probate Court can be viewed as
nothing other than a challenge to Attorney Goldstein’s
good faith preparation of the estate’s CT-706 that vio-
lated the express terms of the in terrorem clauses. The
defendant argues that the good faith exception applies
to in terrorem clauses in all circumstances, but also
argues that if the good faith exception does not apply
to the terrorem clauses here, the clauses are still unen-
forceable because they violate public policy. Specifi-
cally, the defendant argues that enforcement of the in
terrorem clauses as written would limit the judiciary’s
oversight role, violate her constitutional right to seek
redress for injury, improperly give the fiduciary unfet-
tered power, and subvert the statutory probate claims
process.
We agree with the plaintiff that the defendant techni-
cally violated both clauses when she challenged Attor-
ney Goldstein’s actions. We also conclude, however,
that, given the facts of the present case, enforcing the
in terrorem clauses against the defendant would violate
public policy and, thus, the clauses are unenforceable
as to the defendant’s conduct. Consequently, we do not
reach the question of whether a good faith exception
applies in this case because the clauses are unenforce-
able even in the absence of such an exception.
Because the resolution of this claim requires us to
interpret the in terrorem clauses at issue, it presents a
question of law that is subject to plenary review. See
Hynes v. Jones, supra, 175 Conn. App. 93. Both in ter-
rorem clauses state that a beneficiary forfeits his or
her rights as a beneficiary under the instruments if he
or she ‘‘directly or indirectly . . . objects in any man-
ner to any action taken or proposed to be taken in good
faith’’ by either the executor or the trustee. (Emphasis
added.) This plain language makes clear that all chal-
lenges to any actions taken by Attorney Goldstein con-
stitute a violation of the in terrorem clauses. See Palozie
v. Palozie, supra, 283 Conn. 547 (where will or trust
agreement is unambiguous, instrument must be given
effect in accordance with plain language). Therefore,
when the defendant filed an application and request
for a hearing before the Probate Court, in which she
challenged Attorney Goldstein’s preparation of the CT-
706, the defendant objected to his actions and, thus,
technically violated both in terrorem clauses.
That, however, is not the end of our analysis. Under
Connecticut law, in terrorem clauses are void if they
violate public policy. See Peiter v. Degenring, supra, 136
Conn. 335. We conclude that enforcing the in terrorem
clauses to punish the defendant’s conduct in this case
would violate public policy. As such, the clauses are
unenforceable.
A strict reading of both clauses wholly bars Mae’s
beneficiaries, at the risk of forfeiture, from objecting
to any perceived errors that Attorney Goldstein makes
while administering the estate and the trust. This pun-
ishment precludes objections to his actions that involve
the exercise of judgment as well as to actions that
are purely ministerial in nature. We recognize that a
testatrix or settlor may have a keen interest in pro-
tecting her designated fiduciary from attacks on the
fiduciary’s good faith exercise of judgment, such as
how to invest the assets of the trust or at what price
to sell assets of an estate. Under most circumstances,
an in terrorem clause that has the effect of limiting
challenges to such good faith exercises of judgment
would not violate public policy.
On the other hand, there is little benefit to, and poten-
tially significant harm from, an in terrorem clause that
punishes objections to errors made by the fiduciary in
his nondiscretionary administration of a trust or an
estate. For example, although there is benefit to a settlor
of a trust knowing that her fiduciary can make good
faith investment decisions without worrying about
being second-guessed by a beneficiary, neither the set-
tlor nor the beneficiaries benefit from the fiduciary
making mathematical errors in the calculation of taxes
that the trust owes.
In the present case, application of the clear and unam-
biguous language of the in terrorem clauses punishes
the beneficiaries of the estate and the trust from
objecting to any actions of the trustee, including nondis-
cretionary, ministerial acts. Because such a clause
undermines important private and public interests with
no corresponding benefit, it violates public policy. See,
e.g., Sinclair v. Sinclair, 284 Ga. 500, 502–503, 670
S.E.2d 59 (2008) (‘‘After a will has been admitted to
probate, certain duties and obligations are thereupon
imposed by law on the named executor. . . . The exec-
utor, therefore, remains amenable to law in all his acts
and doings as such, and a beneficiary under the will,
in seeking to compel the performance . . . of his duty,
will not be penalized for so doing. . . .’’ (Citation omit-
ted.)) Specifically, beneficiaries have important inter-
ests in making sure that a fiduciary does the ministerial
parts of his job correctly, that the fiduciary’s actions
do not endanger the estate’s assets, and that both the
beneficiaries and the estate are paying the correct
amount in taxes. See In re Estate of Wojtalewicz, 93
Ill. App. 3d 1061, 1063, 418 N.E.2d 418 (1981) (conclud-
ing that enforcement of in terrorem clause would con-
travene public policy because enforcing clause would
potentially ‘‘endanger the assets of the estate’’ due to
‘‘executor’s [alleged] lengthy period of inaction and his
failure to file proper tax returns [causing] the estate to
incur substantial penalties’’). Similarly, the state has a
significant interest in receiving correct tax documents
and payments. If beneficiaries cannot correct mistakes
that fiduciaries make when filing an estate’s tax returns,
as would be the case here if the in terrorem clauses
were enforced pursuant to their plain meaning to punish
the defendant’s actions in this case, then the state’s
interest in receiving accurate tax filings and payments
is substantially impaired.
Finally, enforcing the in terrorem clauses as sug-
gested by the plaintiff would significantly limit valuable
judicial oversight of the fiduciary’s actions. ‘‘Courts
exist to ascertain the truth and to apply the law to it
in any given situation; and a right of devolution which
enables a [testatrix] to shut the door of truth and pre-
vent the observance of the law, is a mistaken public
policy.’’ South Norwalk Trust Co. v. St. John, supra, 92
Conn. 176–77; see also Griffin v. Sturges, 131 Conn.
471, 482–83, 40 A.2d 758 (1944) (clause barring appellate
review of Probate Court’s determination as to whether
beneficiary was entitled to income from estate was
contrary to right to appeal and thus void). Beneficiaries
to a trust or an estate must be able to turn to the judicial
system for help when a fiduciary’s nondiscretionary
actions endanger the interests of the beneficiaries or
the estate, as occurred here when Attorney Goldstein
allegedly overstated the value of the estate and, conse-
quently, increased its tax burden. See Conn. Const., art.
I, § 10 (‘‘[a]ll courts shall be open, and every person,
for an injury done to him in his person, property or
reputation, shall have remedy by due course of law,
and right and justice administered without sale, denial
or delay’’). The defendant should not be required to
risk forfeiture to ensure that the fiduciary has correctly
performed his required legal obligations.
In the present case, Attorney Goldstein unquestion-
ably made a mistake when he listed the defendant’s
Citizens Bank account as an asset of the estate.9 In
strictly complying with the in terrorem clauses, how-
ever, the defendant could not seek judicial review to
correct that mistake, without risking forfeiture, despite
its potential impact on her finances, the assets of the
estate, and the accuracy of Attorney Goldstein’s filings
with the Probate Court and the state of Connecticut.
Such a result would violate public policy.
For the foregoing reasons, although the defendant
technically violated both in terrorem clauses when she
challenged Attorney Goldstein’s actions in administer-
ing the estate and the trust, enforcing the clauses as
written would violate public policy. Accordingly, we
conclude that the in terrorem clauses are unenforceable
against the defendant as a matter of public policy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The will describes the payee of the promissory note as Mae’s deceased
husband, John J. Salce.
2
In her role as trustee, the defendant took out two loans that were secured
by mortgages on Buffalo Bay so that she could pay for expenses related to
the property.
3
General Statutes § 45a-186 (b) provides in relevant part: ‘‘Any person
aggrieved by an order, denial or decree of a Probate Court may appeal
therefrom to the Superior Court. . . .’’
4
Because no record was made of the probate proceedings below, the
court was ‘‘required to undertake a de novo review of the Probate Court’s
decision.’’ 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).
5
The defendant did not appeal from the court’s judgment on her counter-
claim that the plaintiff did not violate the in terrorem clauses.
6
This testimony appears to conflict with the defendant’s application for a
hearing before the Probate Court, which stated, in part, that ‘‘[t]he petitioner
further contends that if the mortgages do not reduce the taxable estate,
then the petitioner’s claim to be reimbursed for payment for maintenance
on the property should be recognized.’’ (Emphasis added.) This statement,
however, does not change the fact that the defendant never provided Attor-
ney Goldstein with a written claim for reimbursement, as required by § 45a-
358 (a). Furthermore, the defendant withdrew her request for a hearing.
Moreover, ‘‘the trial judge is the sole arbiter of the credibility of the witnesses
and the weight to be given specific testimony . . . and the trial court is
privileged to adopt whatever testimony [it] reasonably believes to be credi-
ble. . . . On appeal, we do not retry the facts or pass on the credibility of
witnesses.’’ (Internal quotation marks omitted.) Stilkey v. Zembko, supra,
200 Conn. App. 178. Thus, the existence of this single sentence in the
defendant’s request for a hearing, which was later withdrawn, does not lead
us to conclude that the court erred when it found that the defendant never
filed a creditor’s claim.
7
Even assuming that the defendant did file a creditor’s claim, and thus
violated the in terrorem clauses, we conclude, as discussed in part II of this
opinion, that the in terrorem clauses in the present case violate public policy
and are thus unenforceable.
8
In the underlying proceeding, the court, on the basis of our Supreme
Court’s precedent in South Norwalk Trust Co. v. St. John, supra, 92 Conn.
177, held that because the defendant acted in good faith, upon probable
cause, and with reasonable justification when she challenged Attorney
Goldstein’s actions, she was not in violation of the in terrorem clauses.
Neither this court nor our Supreme Court has ever applied this good faith
exception to anything other than a will contest. On appeal, the defendant
asks us to hold that the good faith exception created in South Norwalk
Trust Co. applies not only to will contests but also applies more broadly
to challenges to the actions of a fiduciary to a trust or an estate. For the
reasons stated in this opinion, we do not reach this issue.
9
The court found, and the plaintiff concedes, that this action was errone-
ous.