Geci v. Boor , 178 Conn. App. 585 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ALICE K. GECI, EXECUTRIX (ESTATE OF
WILLIAM F. KLEE), ET AL.
v. DAVID BOOR
ALICE K. GECI, EXECUTRIX (ESTATE OF
WILLIAM F. KLEE), ET AL.
v. DAVID BOOR ET AL.
(AC 39446)
Keller, Prescott and Kahn, Js.*
Syllabus
The defendant appealed to this court from the judgments of the trial court,
finding, inter alia, that upon the decedent’s death, the named plaintiff,
A, the decedent’s daughter and executrix of his estate, had become the
sole owner of certain joint bank accounts that had been held by the
decedent and A, and ordering the reinstatement of A as the executrix
of the decedent’s estate after she had been removed as executrix by
order of the Probate Court. The Probate Court had found, inter alia,
that the decedent and A held funds in joint accounts for convenience
purposes only and that the decedent had not intended that A become
the sole owner of those funds upon his death. The Probate Court also
had determined that A had undervalued certain assets in the inventory
of the decedent’s estate and ordered, inter alia, that a constructive trust
for the benefit of the defendant be placed on the funds in the joint
accounts and on the undervalued assets. Held:
1. The defendant could not prevail on his claim that the trial court erred
by finding that, upon the death of the decedent, A became the sole
owner of the joint bank accounts that had been held by the decedent
and A, and, thus, that those joint bank accounts were not part of the
decedent’s estate:
a. The defendant’s claim that the court should have found that A was
in a confidential relationship with the decedent, which would have
shifted the burden of proof regarding ownership of the accounts to A,
was unavailing; the record contained evidence demonstrating that A’s
relationship with the decedent did not reflect the paradigms of a confi-
dential relationship, as there was evidence that the decedent did not
wholly trust A to manage his finances, and that he monitored and made
the ultimate determination in the management of his financial affairs,
and the trial court’s finding that the decedent was capable of managing
his financial affairs was supported by evidence that he had successfully
operated a family farm, and had an understanding of complex legal and
financial documents, and of survivorship rights on a joint account.
b. It was not improper for the trial court to rely on certain case law for
the proposition that it was the court’s responsibility, as the finder of
fact, to determine the factual issue of the ownership of the funds in the
joint accounts; even though the court cited to a criminal case, that case
discussed the statute (§ 36a-290) governing joint accounts at length, and
the court was free to look to any case that it believed was instructive
in deciding the matter before it.
c. It was not clearly erroneous for the trial court to fail to find that A
fraudulently concealed the survivorship rights on the joint accounts
from her daughter, the decedent and the decedent’s attorney; whether
A informed her daughter about the survivorship nature of the accounts
was not relevant to the intent of the joint account holders, and the
court, which was presented with contradictory testimony, was free to
assign credibility to the testimony that A did not conceal the survivorship
rights from the decedent or his attorney.
d. The defendant’s claim that the trial court failed to give proper weight
to evidence concerning the decedent’s intent was unavailing, that court
having weighed that evidence and decided that it did not clearly and
convincingly overcome the presumption in the statute (§ 36a-290 [b])
that governs joint accounts that the decedent intended the joint accounts
to become the property of the surviving account holder.
2. The trial court did not abuse its discretion by reinstating A as the executrix
of the decedent’s estate; even though the defendant’s appraisals of cer-
tain assets differed from A’s valuations of those assets, the court’s
decision to reinstate A as the executrix was reasonable and supported
by the record, as the values utilized by A were equal or close in value
to the tax assessments on the assets by the town of Ellington, which
were admitted into evidence.
Argued September 8—officially released December 12, 2017
Procedural History
Appeals from the orders and decrees of the Probate
Court for the district of Ellington imposing, inter alia,
a constructive trust on certain assets of the decedent’s
estate and removing the named plaintiff in both appeals
as executrix of the decedent’s estate, brought to the
Superior Court in the judicial district of Tolland, where
the appeals were consolidated; thereafter, the named
defendant filed a counterclaim; subsequently, the defen-
dant John Henneberger was defaulted for failure to
plead; thereafter, the matter was tried to the court,
Fuger, J.; judgments for the plaintiff, from which the
named defendant appealed to this court. Affirmed.
Malcolm F. Barlow, for the appellant (named
defendant).
Vincent John Purnhagen, for the appellee (plaintiff).
Opinion
KELLER, J. In this consolidated probate appeal, the
defendant David Boor appeals from the judgments ren-
dered by the trial court in favor of the plaintiff, Alice
K. Geci.1 The defendant claims that (1) the court erred
by finding that, upon the death of the decedent, William
F. Klee, the plaintiff became the sole owner of joint
bank accounts held by the decedent and the plaintiff,
and, thus, they were not part of his estate, and (2) the
court abused its discretion by reinstating the plaintiff
as the executrix of the decedent’s estate. We disagree
with the defendant and, therefore, affirm the judgments
of the trial court.
We begin by setting forth the relevant facts and proce-
dural history. On July 12, 2015, the Probate Court for
the district of Ellington issued a decision in which it
found that the decedent and the plaintiff held funds in
joint accounts for convenience purposes only, that the
decedent did not intend for the plaintiff to become the
sole owner of the funds in the joint accounts upon
his death, that the plaintiff undervalued assets in the
inventory of the estate, and that money given to the
plaintiff by the decedent to purchase a new car must
be reported as estate inventory. On the basis of those
findings, the Probate Court ordered that a constructive
trust for the benefit of the defendant be placed on the
undervalued assets and the funds in the joint accounts
or, in the alternative, that a constructive trust be
imposed on the remainder of the proceeds in the dece-
dent’s estate. The Probate Court also ordered that the
money the plaintiff used to purchase the car must be
reported as an advanced distribution in the final
accounting of the decedent’s estate. Later, on August
17, 2015, the Probate Court removed the plaintiff as
executrix of the decedent’s estate.
Pursuant to General Statutes § 45a-186 (a), the plain-
tiff appealed to the Superior Court from the Probate
Court’s orders involving the joint bank accounts and
its decision to remove her as executrix of the decedent’s
estate. The Superior Court consolidated the plaintiff’s
appeals and conducted a de novo hearing focused on
two issues—whether the jointly held bank accounts in
question were part of the decedent’s estate and whether
the plaintiff should be reinstated as the executrix. The
court, after conducting a three day bench trial, found
that the plaintiff became the sole owner of the joint
bank accounts upon the decedent’s death. The court
also reinstated the plaintiff as the executrix of the dece-
dent’s estate.
The trial court set forth the following facts in its
memorandum of decision: ‘‘[The decedent] . . . died
on September 19, 2013 [and was] predeceased [by his
spouse, Gloria R. Klee. The decedent and Gloria Klee]
had three children . . . the plaintiff, Marjorie K. Heintz
and Frederick G. Klee. All three of these children . . .
survived the decedent. . . . [The decedent] was, by all
reports, known to be a hard-working, self-employed
farmer throughout his life, who, in partnership with
. . . Gloria Klee . . . was able to maintain a farming
business in the town of Ellington, Connecticut, for many
years. Both the decedent and [Gloria Klee] did physical
work on the farm. However, while it was the decedent
who was primarily involved in the actual physical opera-
tion of the farming business, it was [Gloria] Klee who
did all the household chores and bookkeeping . . . .
‘‘Notwithstanding the fact that the decedent did not
routinely write out checks to pay family household or
business related bills, the decedent was nonetheless a
competent and savvy businessman/farmer. . . .
[According to the] plaintiff’s expert witness, Attorney
Atherton B. Ryan, the decedent was more than capable
of managing and conducting his own affairs.’’ (Internal
quotation marks omitted.) Ryan’s professional relation-
ship with the decedent began in 2006 when the decedent
hired Ryan to collect a debt from the decedent’s daugh-
ter, Marjorie Heintz. During the litigation regarding the
contested debt, Ryan advised the decedent to amend
his will. The decedent directed Ryan to draft a new
will2 in order to ‘‘remove Marjorie from the will and to
give Marjorie’s one-third share to Marjorie’s children,
the defendant, David Boor, (a 2/9ths share) and [the
defendant’s] sister, Melissa Mascalla, (a 1/9th share).’’
The decedent signed this will on June 13, 2006.
Gloria Klee was diagnosed with cancer in 2005.
Shortly thereafter, the plaintiff ‘‘assumed not only the
role of caregiver for her mother during the period of
her mother’s final illness but also her mother’s duties
at the farm. This included not only doing the bookkeep-
ing and bill-paying for the family household, but more
importantly, assuming the responsibility for [the dece-
dent’s] well-being after Gloria [Klee] had died. With
this in mind, the decedent and [Gloria Klee] made a
conscious decision during the period of [her] last illness
to apprise the plaintiff of their financial affairs. . . .
[Gloria Klee] showed the plaintiff all of the financial
and bookkeeping documents . . . .’’ (Internal quota-
tion marks omitted.)
The decedent, Gloria Klee, and the plaintiff opened
joint checking and savings accounts on April 5, 2006,
in person at Bank of America.3 On April 11, 2006, the
decedent and Gloria Klee also made the plaintiff a joint
owner with a right of survivorship on three certificate
of deposit accounts at Rockville Bank. Gloria Klee died
shortly after adding the plaintiff onto those accounts.
The decedent closed all of the accounts at Bank of
America and Rockville Bank on March 12, 2007.
The decedent once again created a new will on Janu-
ary 11, 2012, to replace the June 13, 2006 will. The
new ‘‘will provided a few specific bequests with the
residuary of the decedent’s estate to be divided equally
between the plaintiff and the defendant . . . . No pro-
vision was made for the decedent’s daughter, Marjorie,
or the decedent’s son, Frederick [Klee]4 . . . . [This
will was] admitted to probate after the decedent’s death
. . . and the plaintiff was appointed executrix of the
estate.’’
Although not explicitly set forth in the court’s memo-
randum of decision, the following additional facts are
not disputed by the parties and are consistent with
the court’s other findings. The plaintiff and decedent
opened joint accounts with a right of survivorship at
Rockville Bank, which is now known as United Bank.
At the time of the decedent’s death, the decedent and
the plaintiff were signatories on a joint checking
account, a joint savings account, and four joint certifi-
cate of deposit accounts at United Bank. The plaintiff
did not probate the funds, totaling approximately
$400,000, in the bank accounts. Additional facts will be
set forth as needed.
I
The defendant claims that the court erred by finding
that the plaintiff became the sole owner of joint bank
accounts held by the decedent and the plaintiff upon
the decedent’s death. We disagree.
We begin by setting forth the relevant law pertaining
to the ownership of joint bank accounts after the death
of one account holder, as well as the standard that
governs our review of the court’s findings. Joint survi-
vorship bank accounts are governed by General Stat-
utes § 36a-290.5 Case law interprets § 36a-290 (b) as
giving rise to a rebuttable presumption that ‘‘the cre-
ation of a joint account is evidence of the intent of the
person creating the account to have the proceeds go,
upon his or her death, to the other joint account holder.’’
Bunting v. Bunting, 60 Conn. App. 665, 679, 760 A.2d
989 (2000). A person challenging the survivor’s right to
ownership of the balance in the account must overcome
the presumption with clear and convincing evidence.
Garrigus v. Viarengo, 112 Conn. App. 655, 662, 963
A.2d 1065 (2009). The phrase ‘‘clear and convincing’’
denotes a degree of belief that lies between a preponder-
ance of the evidence and proof beyond a reasonable
doubt. Dacey v. Connecticut Bar Assn., 170 Conn. 520,
536–37, 368 A.2d 125 (1976). ‘‘[C]lear and convincing
proof is strong, positive, free from doubt, and full, clear
and decisive.’’ (Internal quotation marks omitted.) Id.,
537. When, however, the challenger presents clear and
convincing evidence that the surviving account holder
committed fraud, exerted undue influence on the
deceased account holder; Garrigus v. Viarengo, supra,
662; or was in ‘‘ ‘a confidential relationship’ ’’ with the
deceased account holder, the burden of proof with
regard to ownership shifts to the surviving account
holder, who then has the burden of proving fair dealing
or the absence of undue influence by clear and convinc-
ing evidence. Bunting v. Bunting, supra, 680.
The issue of ownership upon the death of a joint
account holder is a factual one. Driscoll v. Norwich
Savings Society, 139 Conn. 346, 349, 93 A.2d 925 (1952).
Appellate review of findings of fact is limited to the
clearly erroneous standard. Bunting v. Bunting, supra,
60 Conn. App. 679. A finding of fact is deemed clearly
erroneous when there is no evidence in the record to
support it or when there is evidence, ‘‘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.) Id. This court ‘‘can-
not retry the facts or pass upon the credibility of the
witnesses.’’ (Internal quotation marks omitted.) Id.
The court stated that the defendant in this case bore
the burden of persuasion, by clear and convincing evi-
dence, to rebut ‘‘the statutory presumption vesting own-
ership in the surviving owner in a joint account upon
the demise of the other joint account holder . . . .’’
The court found that the defendant did not meet that
burden. Because the court did not shift the burden to
the plaintiff, it can be inferred that the court did not
find that the plaintiff committed fraud, exerted undue
influence on the decedent, or that she and the decedent
were in a confidential relationship.
In challenging the court’s finding that the plaintiff
became the sole owner of the accounts upon the dece-
dent’s death, the defendant makes four arguments. The
defendant first argues that the court should have found
that the plaintiff and the decedent were in a confidential
relationship, shifting the burden of proof with regard
to ownership of the accounts to the plaintiff. The defen-
dant’s second argument is that the present case is factu-
ally similar to Garrigus v. Viarengo, supra, 112 Conn.
App. 655, and that it was improper for the court to rely
on State v. Lavigne, 307 Conn. 592, 57 A.3d 332 (2012).
The defendant’s last two arguments are that the court
erred by not finding that the plaintiff concealed the
joint ownership of the accounts and that the court
improperly weighed evidence concerning the dece-
dent’s intent.
A
The defendant argues that the court should have
found that the plaintiff was in a confidential relationship
with the decedent, shifting the burden of proof with
regard to ownership of the accounts to the plaintiff.6
The defendant’s argument is predicated on portraying
the decedent as a simple farmer, with little understand-
ing of how to manage his personal finances, and inher-
ently susceptible to the plaintiff’s influence. The record,
however, reveals a basis to conclude that this was not
the case. First, the plaintiff’s relationship with the dece-
dent did not reflect the paradigms of a confidential
relationship. Second, the record demonstrates that the
decedent may not have been as susceptible as the defen-
dant contends; the decedent was capable of managing
his financial affairs and there is evidence that the dece-
dent understood the survivorship rights on joint
accounts.
Determining whether a confidential relationship
exists is a factual inquiry. Albuquerque v. Albuquerque,
42 Conn. App. 284, 287, 679 A.2d 962 (1996). Appellate
review is limited to the clearly erroneous standard. Id.
The record contains evidence that the plaintiff’s rela-
tionship with the decedent did not reflect the paradigms
of a confidential relationship. ‘‘A fiduciary or confiden-
tial relationship is characterized by a unique degree of
trust and confidence between the parties, one of whom
has superior knowledge, skill or expertise and is under
a duty to represent the interests of the other.’’ Dunham
v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987),
overruled in part on other grounds by Santopietro v.
New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).
The superior position of the fiduciary or dominant party
affords him a great opportunity for abuse of the confi-
dence reposed in him. Id. ‘‘The relationship between a
parent and a child does not per se give rise to the
establishment of a fiduciary relationship.’’ (Internal
quotation mark omitted.) Bunting v. Bunting, supra,
60 Conn. App. 680. Here, there was evidence that the
decedent did not wholly trust the plaintiff to manage
his finances. The defendant referred to this in his testi-
mony by stating that the decedent ‘‘would accuse . . .
[the plaintiff] of stealing his money.’’ There was evi-
dence that the decedent monitored the plaintiff’s man-
agement of his financial affairs. The plaintiff recalled
that the decedent was aware of how much money the
accounts contained7 and scrutinized how the money
was being spent, frequently questioning payments to
parties he did not recognize.8 Further, there was evi-
dence that the decedent made the ultimate determina-
tion in the management of his financial affairs.
According to the plaintiff, when she purchased a new
car, it was the decedent who made the decision about
which account the money would come from.9
The record contains a basis to support the court’s
finding that the decedent was capable of managing his
financial affairs. The evidence reflects that the dece-
dent—with help from Gloria Klee, family members, and
friends—successfully operated a family farm for many
years. In managing the farm, the decedent purportedly
made purchases, sold farm products and services, bar-
tered, and negotiated.10 The plaintiff testified that the
decedent annually visited Rockville Bank to renegotiate
the interest rates on his composite deposit accounts.11
Additionally, there was evidence that the decedent dem-
onstrated an understanding of complex legal and finan-
cial documents. The decedent supposedly instructed
his attorney to change his will despite the plaintiff’s
protests.12 The defendant recalled times when the dece-
dent would execute contracts for mortgage liens and
automobile sales.13
The evidence reasonably demonstrated that the dece-
dent understood survivorship rights on a joint account,
which supports the notion that the decedent was not as
susceptible to the plaintiff’s influence as the defendant
represents. At trial, a representative from United Bank,
Tracy Roy, explained that it is bank policy to inform
anyone opening a joint account about the right of survi-
vorship.14 Additionally, a bank representative would
give customers an informative booklet on joint account
ownership. The booklet contains the following provi-
sion, ‘‘Joint Account—With Survivorship (And not as
Tenants in Common)—is an account in the name of
two or more persons (where the other person is not a
fiduciary or beneficiary). Each of you intends that when
you die the balance in the account (subject to any previ-
ous pledge to which we have agreed) will belong to the
survivor(s).’’ The decedent should have received this
information when he opened the accounts with the
plaintiff. Additionally, the decedent, prior to opening
joint accounts with the plaintiff, held joint accounts
with Gloria Klee. The decedent gained firsthand experi-
ence dealing with survivorship rights when Gloria
Klee died.15
B
The defendant’s second argument is that the present
case is factually similar to Garrigus v. Viarengo, supra,
112 Conn. App. 655, and that it was improper for the
court to rely on State v. Lavigne, supra, 307 Conn.
592. In Garrigus, the executrix of the decedent’s estate
brought an action against the decedent’s niece to
recover funds in accounts held by the decedent and
her niece. Garrigus v. Viarengo, supra, 660. The court
found that by transferring the decedent’s assets into
the joint accounts, the niece committed fraud against
the decedent’s estate. Id., 671. The trial court in Garri-
gus found that shortly after the decedent’s husband
died, ‘‘the niece] transported [the decedent] to the bank,
and the [niece’s] name was added as a joint owner on
savings bonds . . . .’’ Id., 665–66. A few months later,
‘‘the [niece] was added as a joint owner on several of
[the decedent’s] savings and checking accounts, certifi-
cates of deposit and savings bonds. . . . When a few
relatives became aware that the [niece] was a joint
owner on some of [the decedent’s] bank accounts, they
expressed their concern to [the decedent] that those
accounts would belong to the [niece] when [the dece-
dent] died. [The decedent] was adamant that the
[niece’s] name had been added for convenience only
because the [niece] helped [the decedent] with her
financial affairs and was the coexecutor of her will.
[The decedent] indicated that she had told [her niece]
that her estate was to be divided equally among the ten
beneficiaries.’’ Id., 666. The court inferred that when
faced with the decedent’s instructions to split the estate
evenly, the niece ‘‘remained silent’’ and that the dece-
dent ‘‘undoubtedly assumed [her niece’s] assent . . . .’’
Id., 669. In the present case, there was no finding that
(1) the decedent created joint accounts with the plaintiff
only for convenience purposes, (2) any of the other
family members ever questioned him about his intent,
or (3) he indicated that the money in the accounts was
to be distributed equally to all his stated beneficiaries.
Thus, we do not agree with the defendant that the pre-
sent case is factually similar to Garrigus.
The court also did not err by citing to State v. Lavigne,
supra, 307 Conn. 592. The court cited to Lavigne for
the proposition that determining ownership of funds in
a joint account is a factual issue in order to establish
that it was the court’s responsibility in the present case
to make that determination as the finder of fact.
Although Lavigne is a criminal case, § 36a-290 is dis-
cussed at length in our Supreme Court’s decision. First,
we observe that a court is free to look to any case that
it believes is instructive in deciding the matter before
it. Second, there is no basis on which to conclude that
the court’s reliance on Lavigne was misplaced because
in Lavigne, our Supreme Court reviewed the ‘‘long-
standing jurisprudence concerning § 36a-290 or its pre-
decessor provision and other cases in which the owner-
ship of joint bank accounts was at issue . . . .’’ Id.,
601. The defendant’s brief even contradicts itself in one
instance by stating that the court erroneously relied on
Lavigne and in another instance by stating that ‘‘the
Lavigne case gives sufficiently relevant law to be the
key case in this matter.’’ (Internal quotation marks
omitted.)
C
The defendant next argues that the court improperly
failed to find that the plaintiff fraudulently concealed
the beneficial effect of her survivorship rights in the
joint accounts from her daughter, the decedent, and
the decedent’s attorney. It is not this court’s role to
examine the record to determine whether the trier of
fact could have reached a different conclusion. Wyszo-
mierski v. Siracusa, 290 Conn. 225, 238, 963 A.2d 943
(2009). Instead, this court reviews the trial record to
determine whether the trial court’s decisions are legally
correct and factually supported. Id. The defendant is
requesting that this court replace the trial court’s find-
ings of fact with a different narrative where the defen-
dant is entitled to half the funds in the joint accounts.
The record does not reveal the requisite compelling
reasons to do so.
The defendant contends that the court improperly
failed to find that the plaintiff concealed the survivor-
ship nature of the joint bank accounts from the plain-
tiff’s daughter, Attorney Ryan, and the decedent. The
defendant does not establish why it was clearly errone-
ous for the court to fail to find that the plaintiff con-
cealed the accounts. The plaintiff’s alleged concealment
of the survivorship rights of the accounts from her
daughter is not material to the outcome of this case.
There is contradictory testimony regarding whether the
plaintiff concealed the survivorship rights from the
decedent and Ryan; therefore, the trial court did not
err by not finding that she did so.
The court did not act improperly by failing to find
that the plaintiff concealed the survivorship nature of
the accounts from her daughter. Courts do not need to
include immaterial facts in their findings. Yale Univer-
sity v. New Haven, 169 Conn. 454, 463, 363 A.2d 1108
(1975). The defendant was ‘‘required to prove by clear
and convincing evidence that the bank accounts . . .
were not valid inter vivos gifts . . . or that they were
assets acquired by the defendant under circumstances
which required equity to divest [the plaintiff of her]
beneficial interest and to convert [her] into a trustee
in order to prevent [her] unjust enrichment.’’ (Citations
omitted.) Cooper v. Cavallaro, 2 Conn. App. 622, 626,
481 A.2d 101 (1984). The § 36a-290 (b) presumption
focuses on the intent of the joint account holders. State
v. Lavigne, supra, 307 Conn. 603. Whether the plaintiff
informed her daughter about the survivorship nature
of the accounts neither provides insight as to the dece-
dent’s intent, nor reveals anything about the relation-
ship between the decedent and the plaintiff. The
defendant does not proffer a reason why a finding that
the plaintiff concealed her right of survivorship from
her daughter would be material to the case. Further,
the defendant needed to explain that failing to make
such a finding would be impactful in light of the fact
that the defendant needed to establish by clear and
convincing evidence that equity required divesting the
plaintiff of the accounts. Whether or not the court found
the daughter’s testimony credible, the court did not
have to address this factual issue in its analysis.
With respect to Ryan and the decedent, although a
finding that the plaintiff purposely concealed the survi-
vorship nature of the accounts from them may have
been material to the court’s analysis, the defendant
must establish on appeal that the court’s failure to find
that the plaintiff deceived either of them was clearly
erroneous. The record contains contradictory testi-
mony regarding whether the plaintiff had an opportu-
nity to conceal the survivorship rights from Ryan and
whether the decedent knew about the survivorship
rights. ‘‘Where there is conflicting testimony, we do
not retry the facts or pass upon the credibility of the
witnesses. . . . Weighing the evidence and judging the
credibility of the witnesses is solely within the province
of the trial court and this court will not usurp that role.’’
(Citation omitted.) Hallmark of Farmington v. Roy, 1
Conn. App. 278, 281, 471 A.2d 651 (1984). Also, the court
was not required to credit any particular individual’s
account of the events. Wilson v. Hryniewicz, 51 Conn.
App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904,
731 A.2d 310 (1999).
The defendant contends that the court erred by not
finding that the plaintiff concealed the survivorship
nature of the accounts from Ryan. The defendant
alleges that the plaintiff concealed the survivorship
nature when she brought the decedent to Ryan’s office
to amend his will in 2012. Ryan testified that the plaintiff
sat in on the conference when the decedent discussed
how he wanted to amend his will, but that the plaintiff
did not actively participate in the conversation. Ryan
stated that, aside from exchanging brief pleasantries,
the plaintiff said little at the meeting16 and that although
there was a terse discussion of the decedent’s assets,
the decedent brought the conversation to an abrupt
end. The plaintiff testified that she was asked to leave
the room after briefly greeting Ryan.17 The court was
left to evaluate contradictory testimony that the plaintiff
did not attend the meeting against evidence that she
was not an active participant. The court was free to
assign credibility to either account. Therefore, it was
not clearly erroneous for the court to fail to find that the
plaintiff concealed the right of survivorship from Ryan.
The defendant relies on his own testimony to argue18
that the plaintiff concealed the right of survivorship
from the decedent. The defendant testified that the
decedent was confused as to why the plaintiff’s name
was on the accounts and that despite arguments
between the plaintiff and the decedent regarding
finances, the decedent never took the plaintiff’s name
off the accounts.19 The plaintiff testified that her name
was on the accounts as a joint owner because her par-
ents wanted her to have the money in the accounts.20
Again, the court was left to evaluate contradictory testi-
mony. The plaintiff’s testimony provided evidence that
she did not conceal the survivorship rights from the
decedent, and the court was free to credit that testi-
mony. Therefore, it was not clearly erroneous for the
court to fail to find that she concealed the survivorship
rights on the accounts.
D
The defendant’s final argument is that the court failed
to give proper weight to evidence concerning the dece-
dent’s intent. As previously explained, the existence of
a joint account creates a presumption that the decedent
intended the joint account to become the property of
the surviving account holder(s). This presumption can
be overcome only with clear and convincing evidence.
Garrigus v. Viarengo, supra, 112 Conn. App. 662. Noth-
ing in the court’s decision suggests that the court failed
to consider whether the presumption was overcome or
any of the relevant evidence on the issue. The court
noted that ‘‘[i]t is true that the state of the evidence in
this case is a bit contradictory. On the one hand, we
have the incontrovertible evidence that the decedent
created these joint accounts with himself and [the plain-
tiff]. Examined in a vacuum, this seems to clearly show
that he intended to have ownership of the totality of
the $400,000 vest in [the plaintiff] upon his death (after
all, that is the general meaning of a joint account). On
the other hand, there is the clearly contradictory stated
intent in his last will and testament—that the residuary
of [the decedent’s] estate is to be equally divided
between [the plaintiff and the defendant].’’ Therefore,
the court weighed the evidence concerning the dece-
dent’s intent and decided that it did not clearly and
convincingly overcome the presumption set forth in
§ 36a-290 (b).
II
The defendant also claims that the court abused its
discretion by reinstating the plaintiff as the executrix
of the decedent’s estate. The defendant argues that,
by undervaluing certain assets in the inventory of the
decedent’s estate, the plaintiff failed to perform ade-
quately her duties as executrix. We disagree.
The property at issue was a tractor and two vehi-
cles—an automobile and a dump truck. The defendant
supports this claim by arguing that his own testimony
contradicts the plaintiff’s valuations and that the plain-
tiff, by her own admission, initially confused the value
of the two vehicles. The court observed that ‘‘[d]espite
there being some allegations that the plaintiff did not
perform her job properly, this court cannot find that
the decisions she made as executrix, the valuations
she placed upon the property in the inventories, were
unsupported by evidence.’’
Removal of an executrix is left to the sound discretion
of the Probate Court. Ramsdell v. Union Trust Co., 202
Conn. 57, 65, 519 A.2d 1185 (1987). ‘‘On appeal from
probate, the trial court may exercise the same discre-
tion de novo, reviewing the facts relating to the propri-
ety of removal without regard to the Probate Court’s
decision.’’ Id. That leaves this court to determine
whether the decision of the trial court amounts to an
abuse of discretion. ‘‘Under the abuse of discretion stan-
dard of review, [w]e will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling,
and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did.’’ (Internal quotation marks omitted.)
Selene Finance, L.P. v. Tornatore, 137 Conn. App. 130,
134, 46 A.3d 1070, cert. denied, 307 Conn. 908, 53 A.3d
223 (2012).
The record reveals that the plaintiff and the defendant
presented the court with conflicting values of the assets.
The plaintiff valued the tractor at $12,000, the automo-
bile at $4000, and the dump truck at $8000. The defen-
dant, ‘‘a person who deals in automotive transactions,’’
appraised the automobile at $12,088. The defendant
estimated, on the basis of the National Auto Dealers
Association blue book, that the dump truck was worth
$15,413. Scott Stanton, the tractor dealer who sold and
repaired the decedent’s tractor, estimated that the trac-
tor was worth $25,000 at the time of the decedent’s
death.
The defendant is essentially requesting that this court
conclude that it was an abuse of discretion for the trial
court to reinstate the plaintiff because of the higher
estimated values of the assets that he, an interested
party, and Stanton presented. Even though there was
a difference between the defendant’s appraisals and the
plaintiff’s valuations, the court acted within its discre-
tion by reinstating the plaintiff as executrix. The values
utilized by the plaintiff equal, or are close in value to,
the town of Ellington’s tax assessments on the assets,
which were admitted as evidence. Therefore, after
reviewing the record, we conclude that the court’s deci-
sion to reinstate the plaintiff as the executrix was rea-
sonable, supported by the record, and not an abuse of
its discretion.
The judgments are affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Geci brought this appeal from probate both individually and in her repre-
sentative capacity as executrix of the estate of the decedent, William F.
Klee. She refers to herself as the plaintiff, as do we. The defendant, David
Boor, is the decedent’s grandson and a beneficiary of his will. John Henneb-
erger, the administrator of the decedent’s estate, was also named as a
defendant but was defaulted for failure to plead and is not involved in this
appeal. Our references in this opinion to the defendant are to Boor.
2
Pursuant to the terms of the June 13, 2006 will, Frederick Klee’s one-
third share was to be devised to the plaintiff in trust for Frederick Klee.
3
It is not disputed that both accounts had a right of survivorship.
4
Pursuant to the terms of the June 13, 2006 will, Frederick Klee and
Mascalla were to receive a one-third share in trust and a one-ninth share,
respectively. The January 11, 2012 will removed Frederick Klee and Mascalla
as beneficiaries of the decedent’s residual estate. This left the plaintiff and
defendant as the sole intended beneficiaries in the 2012 will, each receiving
a one-half share of the residual estate.
5
General Statutes § 36a-290 provides in relevant part: ‘‘(a) When a deposit
account has been established at any bank, or a share account has been
established at any Connecticut credit union or federal credit union, in the
names of two or more natural persons and under such terms as to be paid
to any one of them, or to the survivor or survivors of them, such account
is deemed a joint account, and any part or all of the balance of such account,
including any and all subsequent deposits or additions made thereto, may
be paid to any of such persons during the lifetime of all of them or to the
survivor or any of the survivors of such persons after the death of one or
more of them. Any such payment constitutes a valid and sufficient release
and discharge of such bank, Connecticut credit union or federal credit union,
or its successor, as to all payments so made.
‘‘(b) The establishment of a deposit account or share account which is a
joint account under subsection (a) of this section is, in the absence of fraud
or undue influence, or other clear and convincing evidence to the contrary,
prima facie evidence of the intention of all of the named owners thereof to
vest title to such account, including all subsequent deposits and additions
made thereto, in such survivor or survivors, in any action or proceeding
between any two or more of the depositors, respecting the ownership of
such account or its proceeds. . . .’’
6
Although it is not explicitly stated in the defendant’s brief, the defendant
also seems to be arguing that the burden of establishing ownership should
have been on the plaintiff because she fraudulently concealed her right of
survivorship or, more generally, that she otherwise exerted undue influence
on the decedent.
7
The plaintiff testified: ‘‘When the bank statements came in every month,
[the decedent] would open up the statements, and he’d look, and his first
question was how much money’s in there . . . .’’ The plaintiff would reply,
‘‘I don’t know, dad. You got to add it up. . . . I’d say, dad, you’ve got to
get a piece of paper, start adding them up.’’
8
The plaintiff testified: ‘‘Sometimes [the decedent] didn’t recognize the
names of places that I mailed a check to, and he would [say], what’s this
check for, what’s this check for, and I would tell him.’’
9
The plaintiff testified: ‘‘I gave him the options of what . . . he had, and
he said, I want to take it out of John Hancock. He did not want to touch
the [joint accounts]. This was in November. He just renegotiated them in
July. He was afraid he would lose his rate or interest [on the composite
deposit accounts].’’
10
James Prichard, owner of the hardware store that the decedent fre-
quented, testified: ‘‘I would buy egg cartons, shavings [from the decedent].
We would trade eggs back and forth . . . .’’ Prichard also recalled negotiat-
ing with the decedent: ‘‘I told him the price [for a wood stove]. He’d say it
was too high, and then I’d sell it to him for close to what it cost me.’’
11
The plaintiff testified: ‘‘Every July, because that’s when the . . . [com-
posite deposit accounts] came due, we would go to the bank together, and
he would talk to the lady about the interest rates, and he would renegoti-
ate them.’’
12
The plaintiff testified: ‘‘I didn’t agree with it, but I wasn’t really sure
about it, and once my dad heard that . . . [if Freddy goes into a convalescent
home, the government can get your money], he decided to go up and take
Freddy out of [the] will. I was quite against it.’’
13
The defendant testified that the decedent entered into contracts to
purchase automobiles and signed his will. The defendant also secured mort-
gage financing from the decedent, and the decedent was a signatory on the
mortgage release agreement, which was signed before a notary.
14
Roy, a manager of two branches for United Bank, testified in response
to questioning regarding the process of opening an account: ‘‘I would identify
each customer . . . go over, if it’s a joint account, what a joint account
means; all of our joint accounts are with right to survivorship and not tenants
in common, which means either of the parties, either account holder has
full access to the funds. It is 100 percent owner A and 100 percent owner
B’s money. They do not need each other’s permission to conduct any transac-
tion on the account. Upon the death of one joint account holder, the surviving
holder becomes the sole owner of the money.’’
15
Ryan testified that ‘‘[a]pparently,’’ the decedent was aware of the survi-
vorship nature of joint bank accounts in March, 2007.
16
Ryan testified: ‘‘My recollection is that [the plaintiff] had brought [the
decedent] to the office. She did sit [in] on the conference [to discuss amend-
ing the decedent’s will]. I don’t remember her contributing to the conference
or the discussion at all other than to say hi, the normal greeting kind of
discussion. Specifically, I do not believe she contributed or commented
upon [the decedent’s] expressed desire.’’
17
The plaintiff testified: ‘‘[The decedent] said he wanted to change the
will, and . . . Ryan sat down with him, and [Ryan] asked me to walk out
of the room so he could talk to [the decedent], and I sat in the lobby.’’
18
The defendant also refers to the lack of anyone from Rockville Bank
testifying about the decedent opening the accounts with the plaintiff in
support of a finding that the plaintiff concealed the right of survivorship.
This is a speculative proposition and ignores the possibility that the bank
employees cannot accurately recall every patron who opens a new account.
19
In arguing that the plaintiff concealed the right of survivorship on the
accounts from the decedent, the defendant relies on his own testimony,
which, rather than supporting his claim that the plaintiff concealed the
survivorship rights from the decedent, reveals the opposite, mainly that the
decedent was aware that the plaintiff’s name was on the accounts. The
defendant testified that the decedent was aware the plaintiff was listed on
the account and contemplated removing her, but never did so. The defendant
testified that ‘‘[a]ll [the plaintiff] would say [to the decedent] is, go to the
bank and take my name off.’’ ‘‘One time after . . . [the plaintiff and the
decedent] had an argument about [the accounts], he asked me to take him
to the bank to find out why her name was on it, whose money it was, and
I flat out refused.’’
20
During the plaintiff’s direct examination, the following colloquy
occurred:
‘‘[The Plaintiff’s Counsel]: And whose money was it [in the accounts] . . .
upon [the decedent’s] passing?
‘‘[The Plaintiff]: Mine.
‘‘[The Plaintiff’s Counsel]: And why you do you say that . . . ?
‘‘[The Plaintiff]: Because that’s what my mom and dad wanted—was for
me to have the money [in the accounts] upon their death.’’