Kunz v. Sylvain ( 2015 )

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SHARON KUNZ v. DALE SYLVAIN ET AL.
(AC 36723)
Beach, Sheldon and Bear, Js.
Argued March 17—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Martin B. Burke, with whom were Lara Sandberg,
certified legal intern, and, on the brief, Cheryl Povilonis,
certified legal intern, for the appellant (plaintiff).
James H. Howard, for the appellees (defendants).
Opinion
BEACH, J. In 2005, Joel Sylvain amended his previous
estate plan so that his plaintiff daughter, Sharon Kunz,
was essentially disinherited. Joel Sylvain has since
passed away, and the plaintiff claims that he lacked
sufficient capacity to effect the changes. The trial
court disagreed.
The plaintiff now appeals from the judgment of the
trial court rendered in favor of the defendants, Dale
Sylvain, individually and as trustee of a revocable living
trust, and Kenneth Sylvain.1 The plaintiff claims that
the court erred in (1) concluding that Joel Sylvain, the
settlor of the trust, had the requisite mental capacity
to execute the challenged amendments to the trust,
and (2) failing to shift the burden of persuasion to the
defendants on her claim of undue influence. We affirm
the judgment of the trial court.
The plaintiff instituted an action seeking to invalidate
the 2005 amended inter vivos trust of Joel Sylvain,
which removed her as a beneficiary, and to reinstate a
1996 trust, under the terms of which she was a benefi-
ciary. In her complaint, she alleged lack of capacity and
undue influence. The trial court found the following
facts.2 ‘‘Joel Sylvain had three children; Sharon Kunz
. . . and Dale [Sylvain] and Kenneth Sylvain . . . .
The defendant Hilda [Sylvain] was Joel [Sylvain’s] sec-
ond wife whom he married in 1993. Hilda [Sylvain] had
previously been married to one of Joel [Sylvain’s] ten
siblings and had been an aunt to [the plaintiff and the
defendants], prior to marrying Joel [Sylvain].
‘‘On November 15, 1996, Joel [Sylvain] executed ‘The
Joel L. Sylvain Living Trust’ (the 1996 Trust), for estate
planning purposes. When he executed the 1996 Trust,
Joel [Sylvain] was represented by the law firm Nir-
enstein, Horowitz and Associates in Hartford, which
specialized in estate planning. The 1996 Trust consisted
of approximately forty pages, and contained twelve arti-
cles, each containing a number of subsections. It named
Joel Sylvain as trustor and trustee. Joel [Sylvain’s] three
grown children . . . were identified in the 1996 Trust.
Section 4 named Hilda [Sylvain] and Dale Sylvain as
‘Disability Trustees’ and ‘Death Trustees’ in the event
that Joel [Sylvain] became disabled or died. The 1996
Trust made specific distributions upon Joel [Sylvain’s]
death including giving all of his personal and real prop-
erty to Hilda [Sylvain]. Under the 1996 Trust, Joel [Syl-
vain’s] remaining property would be distributed equally
among Joel [Sylvain’s] three children, or if any of his
children predeceased him, to their children.
The 1996 Trust was signed by Joel Sylvain as trustor
and trustee. Both signatures were acknowledged by a
notary public. Upon execution of the 1996 Trust, Joel
[Sylvain’s] assets were then transferred to the trust,
which Joel [Sylvain] administered until he was deemed
disabled and placed in a nursing home in 2007. [The
plaintiff does not claim] in this case that [the] 1996 Trust
was invalid, or that Joel [Sylvain] lacked the requisite
mental capacity to execute it.
‘‘On August 22, 2005, Joel executed a restatement
of the 1996 Trust, with certain amendments (the 2005
Trust). In executing the 2005 Trust, Joel [Sylvain] was
represented by the same law firm that represented him
in the execution of his 1996 Trust, and in particular,
Attorney [Edward] Vinhateiro. Like the 1996 Trust, the
2005 Trust consisted of approximately forty pages and
twelve articles, each with a number of subsections. The
two documents contained essentially the same provi-
sions except that the 2005 Trust contained two primary
amendments: (1) to remove Hilda [Sylvain], who was
79, as one of the two death and disability trustees and
to replace her with [the] defendant Kenneth [Sylvain];
and (2) to exclude [the plaintiff] as a beneficiary of the
trust. Other minor changes were also made to the 2005
Trust document that made the document current with
the law. In particular, as to the plaintiff, Section 7 of
the 2005 Trust identified Joel [Sylvain’s] three children,
Dale [Sylvain], [the plaintiff] and Kenneth [Sylvain], but
expressly and ‘intentionally’ excluded [the plaintiff] and
her descendants ‘from receipt of any portion of [his]
Trust Estate.’ The 2005 Trust, as amended, was signed
by Joel Sylvain as trustee and trustor, and Joel [Syl-
vain’s] signatures were acknowledged by a notary pub-
lic and witnessed by Attorney Vinhateiro and his
paralegal.
‘‘As was his and his firm’s practice, Attorney Vinha-
teiro spoke to Joel [Sylvain] alone, with a paralegal
present, concerning the changes to his trust. Joel [Syl-
vain] told Attorney Vinhateiro that he wanted to exclude
his daughter [the plaintiff] as a beneficiary of his trust
estate, as well as to remove Hilda [Sylvain] as a death
and disability trustee and [to] replace her with Kenneth
[Sylvain]. Attorney Vinhateiro spent at least one hour
with Joel [Sylvain] explaining and executing the neces-
sary documents to accomplish Joel [Sylvain’s] wishes.
Attorney Vinhateiro had no concerns about Joel [Syl-
vain’s] mental state or capacity at the time Joel [Sylvain]
signed the documents, nor did he believe that Joel [Syl-
vain] was under any duress. Had he believed either to
be true, he would not have gone forward with the
amendments.
‘‘In addition to executing the 2005 Trust on August
22, 2005, Joel [Sylvain] executed other legal documents
designating his son Kenneth [Sylvain] as the conserva-
tor of his person and estate should he become incapable
of managing his affairs, and naming Dale [Sylvain] as
his power of attorney. He also executed a new will
giving all of his property to his living trust as amended.
These documents were properly witnessed and
acknowledged. The witnesses to the 2005 last will and
designation of conservators for future incapacity
expressly attested that Joel [Sylvain] signed those docu-
ments in their presence and that he was of sound mind,
memory, and judgment and under no improper influ-
ence or restraint when he did so. With respect to the
power of attorney document, two independent wit-
nesses acknowledged that Joel [Sylvain] acknowledged
that his action was ‘a free act and deed.’
‘‘Prior to amending his living trust, Joel [Sylvain] told
Hilda [Sylvain] that he planned to take steps to remove
her as a trustee upon his death or disability and exclude
the plaintiff as a beneficiary. Hilda [Sylvain] had no
concerns about being removed as a trustee, and as to
Joel [Sylvain’s] decision to exclude the plaintiff from
benefiting from his estate, Hilda [Sylvain] told him: ‘It’s
your money, do what you want.’ Hilda [Sylvain] did not
encourage or discourage Joel [Sylvain] from excluding
the plaintiff from the 2005 Trust.
‘‘Because Joel [Sylvain] could no longer drive, prior
to August 22, 2005, he called Dale [Sylvain] and asked
him to drive him to his attorneys’ office in Hartford.
Dale [Sylvain] agreed to drive his father to Hartford
and did so on August 22, 2005. Dale [Sylvain] testified
credibly that while he was with his father on August
22, 2005, Joel [Sylvain] was in good physical and mental
condition, was walking on his own, and was not con-
fused or otherwise showing signs of dementia. Dale
[Sylvain] believed that Joel [Sylvain] knew the nature
of his financial assets and his long-term health care
policy, and that he knew Dale [Sylvain] and his other
relatives. On the way to the law firm, Dale [Sylvain]
asked Joel [Sylvain] why he was meeting with his attor-
ney. Joel [Sylvain] responded: ‘To clean up the mess
[the plaintiff] made.’
‘‘Upon arriving at the law firm, Dale [Sylvain] and
Joel [Sylvain] were ushered into an office with Attorney
Vinhateiro and his paralegal. Joel [Sylvain] said: ‘I want
to write my daughter out.’ Dale [Sylvain] was then
escorted out of the lawyer’s office and did not see his
father again until after the legal matters were com-
pleted. When Joel [Sylvain] came out of the lawyer’s
office, he said to Dale [Sylvain]: ‘I fixed it, I wrote
her out.’ Prior to that time, Dale [Sylvain] had never
suggested to his father that he remove the plaintiff as
a beneficiary, and had never heard Hilda [Sylvain] or
Kenneth [Sylvain] make that suggestion.
‘‘As to his physical and mental health, beginning in
the late 1990s, Joel [Sylvain] had a number of medical
issues and was diagnosed with Parkinson’s disease and
later with Lewy Body Dementia, which is a type of
dementia associated with Parkinson’s disease. Both
conditions were deemed progressive in nature. In 2005,
Joel [Sylvain] had been diagnosed with mild to moder-
ate dementia. As a result of these and his other physical
conditions, Joel [Sylvain] had certain physical limita-
tions, which resulted in his inability to walk indepen-
dently, write clearly, drive a car, or bathe or dress
himself or manage his medications.
‘‘In 2005, Joel [Sylvain] lived at home with Hilda [Syl-
vain], who cared for him. Medical records and firsthand
accounts established that at times in 2005, as a result
of his dementia, Joel [Sylvain] exhibited confusion, had
memory lapses and hallucinations. His family testified
that he had ‘good days and bad days.’ Throughout 2005,
the credible evidence presented established that on his
good days, Joel [Sylvain] knew his family members,
including his three children, knew and understood his
financial circumstances, was able to converse lucidly
with his family members and read, understood and dis-
cussed television and newspapers stories and articles.
‘‘Joel [Sylvain] was not isolated. He had visitors at
his home, left his apartment for errands and meals with
Hilda [Sylvain], had access to and spoke on the phone
and attended adult day care, where [the plaintiff] visited
him even after she was estranged from the family. He
expressed his views, sometimes adamantly to his family
members about financial and other matters, and the
family followed his directives. Throughout this time
period, Joel [Sylvain] managed and directed his own
financial affairs, although he had assistance from Hilda
[Sylvain] and Dale [Sylvain], and remained trustor and
trustee of his 1996 Trust. He understood that his physi-
cal and mental health was deteriorating and took steps
to ensure that his affairs were in order both as to his
health care and finances, including executing a power
of attorney and assigning a health care agent. Medical
records from 2005 confirm and reveal that although he
was exhibiting symptoms of dementia, including confu-
sion, he was also alert and aware, as well as able to
process and understand information.
‘‘Joel [Sylvain’s] decision to exclude [the plaintiff]
from his 2005 Trust stemmed from a family dispute
over Joel [Sylvain’s] care and treatment, which pitted
[the plaintiff] against the rest of the family, as well
as [the plaintiff’s] erratic behavior. Joel [Sylvain] had
obtained a long-term health care policy which provided
him approximately $500,000 in benefits. After Hilda [Syl-
vain] was hospitalized in early 2005, the three children
became more involved in Joel [Sylvain’s] care. At that
time, [the plaintiff] owned a home health care agency,
and provided a home health aide to care for Joel [Syl-
vain] during the day. The aide remained after Hilda
[Sylvain] returned home from the hospital. The cost for
these services was charged to and paid for by Joel
[Sylvain’s] long-term health care policy. In the spring
of 2005, Joel [Sylvain] became concerned that too much
money was being spent on the home health aide, which
he did not believe he needed, and that the principal
balance on his long-term health care policy was being
reduced too quickly. A family meeting was held at Joel
[Sylvain’s] residence to discuss the matter, during
which [the plaintiff] became enraged and left.
‘‘After the family meeting, Joel [Sylvain] decided to
remove the plaintiff as his health care agent, and the
services of her home nursing agency were terminated.
The plaintiff then became estranged from the family,
but would often call them, intoxicated and belligerent,
resulting in calls by family members to the police. She
also made a complaint to the state Department of Social
Services asserting that Joel [Sylvain] was being
neglected. Although [the plaintiff] did not visit her
father at his home after the dispute, she did visit him
at the adult day care facility, where he spent a significant
amount of time.
‘‘Eventually, in late 2006, Joel [Sylvain’s] conditions
worsened and he was moved to a nursing home, where
Joel [Sylvain] understood that he would likely remain
for the rest of his life. At that point, Joel [Sylvain]
discussed with Dale [Sylvain] and [Kenneth Sylvain]
distributions under the trust and told his sons he wanted
Hilda [Sylvain] to receive a cash payout of $50,000, even
though the trust did not provide for such a payment.
The [defendants] abided by their father’s wishes. Dale
[Sylvain] and Kenneth [Sylvain] consulted with Joel
[Sylvain’s] attorneys and became the disability trustees
under the 2005 Trust. Also with the assistance of Joel
[Sylvain’s] attorneys, Dale [Sylvain] and [Kenneth Syl-
vain] determined how much money would be needed
to cover [their father’s] health care needs during the
remaining years of his life and those funds remained
in the trust for that purpose. The remaining money,
minus the $50,000 provided to Hilda [Sylvain], was dis-
tributed evenly between [the defendants].’’
After a trial, the court found in favor of the defen-
dants. This appeal followed.
I
The plaintiff claims that the court erred in concluding
that the settlor, Joel Sylvain, had the requisite mental
capacity to execute the 2005 trust amendments. We
disagree.
In the first count of her complaint, the plaintiff alleged
that Joel Sylvain suffered from physical and mental
conditions that resulted in an inability to understand
the nature and consequences of his decision to amend
his living trust excluding the plaintiff as a beneficiary.
The trial court found in favor of the defendants on
this count. The court found that the credible evidence
established that ‘‘in August, 2005, Joel [Sylvain] had the
requisite mental capacity to amend his living trust to
remove the plaintiff as a beneficiary.’’ The court stated:
‘‘The parties agree that this is not a will contest, but a
challenge to the validity of the 2005 trust, which is in
the nature of a contract. Although the trust was a con-
tract and not a will, the amendment at issue—essen-
tially disinheriting the plaintiff—was testamentary in
nature. Neither the court nor the parties have located
any Connecticut Supreme Court or Appellate Court
cases on point concerning the proper capacity standard
for the court to apply under such circumstances.’’ The
court concluded that under either standard, Joel Sylvain
had the requisite mental capacity.
A
The plaintiff first argues that in analyzing Joel Syl-
vain’s mental capacity to execute the 2005 trust amend-
ments, the court erred by applying a testamentary
standard rather than a contract standard in its evalua-
tion of mental capacity. The plaintiff contends that the
court erred in concluding that the 2005 trust amend-
ments were ‘‘not particularly complex.’’ This mispercep-
tion, it is argued, led the court to apply a minimally
exacting standard. The plaintiff argues that the mental
capacity of a settlor of a complex trust ought to be
evaluated by a more rigorous standard.
‘‘[W]hether the court applied the correct legal stan-
dard is a question of law subject to plenary review.
. . . The standard for testamentary capacity is well
established. To make a valid will, the [testator] must
have had 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. . . . The burden of proof in disputes over
testamentary capacity is on the party claiming under
the will. . . . While there is a presumption of sanity in
the performance of legal acts, the party that presents
a will still bears the burden of going forward with his
proof, and only then does the burden shift to the oppo-
nents to prove incapacity.
‘‘[A]n individual may possess the mental capacity nec-
essary to make a will although incapable of transacting
business generally. . . . Some courts have held the
mental ability to execute a valid deed or contract to be
the proper measure of testamentary capacity. . . .
Others, that the possession of sufficient mind and mem-
ory for the transaction of ordinary business is the true
test of capacity to make a valid will. . . . In this State
one may make a valid will though mentally incapable
of transacting business generally. . . . A will is not a
contract. In evaluating mental capacity, the courts apply
different standards for contracts and for testamentary
instruments. The minimum level of mental capacity
required to make a will is less than that necessary to
make a contract or a deed . . . . Likewise, less mental
capacity is required for the testator to make a will than
to carry on business transactions generally, or ordinary
business affairs. Thus, the ability to transact business
is not a true test of testamentary capacity; the ability
to transact complicated or important business, or even
ordinary business, is not the legal standard of testamen-
tary capacity. A person may execute a valid will, even
if he or she is not competent to transact ordinary, every-
day affairs.’’ (Citations omitted; internal quotation
marks omitted.) Deroy v. Estate of Baron, 136 Conn.
App. 123, 127–29, 43 A.3d 759 (2012).
In the circumstances of this case, we need not deter-
mine whether the more minimal level of testamentary
capacity would have sufficed in the context of the
change in estate plans executed in this case. Although
the plaintiff argues that the court erred in determining
that the trust was not complex, and, accordingly, that
it need not apply a higher standard for mental capacity,
the court in fact determined that under either standard,
Joel Sylvain had the mental capacity to make the 2005
trust amendments. The court stated that it did ‘‘not have
to decide what precise standard of capacity to apply
. . . because it finds that the credible evidence
adduced at trial clearly established that, under either
standard, Joel [Sylvain] had the requisite mental capac-
ity to understand the nature and consequences of his
decision to amend his trust and to remove the plaintiff
as a beneficiary. . . . Even under the higher standard
for capacity, the court finds that Joel [Sylvain] had the
requisite mental capacity to understand his decisions,
and in particular, his decision to disinherit the plaintiff.’’
(Emphasis added) The court determined, then, that
even if it were to apply a standard requiring the ability
to understand more complex transactions, it found that
the plaintiff failed to prove her claim of lack of capacity.
The court, in effect, applied the standard which the
plaintiff now advocates.
The plaintiff argues, alternatively, that ‘‘[w]hile the
court offers that Joel [Sylvain] would have had requisite
capacity under either the testamentary or contractual
standard, the court in its analysis only applies testa-
mentary principles. The court cherry pick[ed] the tes-
tamentary features of the trust document and use[d]
authority to support its position that only examine men-
tal powers in relation to testamentary capacity.’’
(Emphasis in original.) This assertion has little merit:
the court clearly recognized that different mental capa-
cities may be required for different sorts of transactions.
The court appreciated the nature of the transaction in
question and found that the settlor had a mental capac-
ity adequate to understand and to effectuate that trans-
action. We will not search for an ambiguity. See Brett
Stone Painting & Maintenance, LLC v. New England
Bank, 143 Conn. App. 671, 681, 72 A.3d 1121 (2013) (We
‘‘do not presume error on the part of the trial court. . . .
Rather, we presume that the trial court, in rendering its
judgment . . . undertook the proper analysis of the
law and the facts.’’ [Citations omitted; internal quotation
marks omitted.]).
B
The plaintiff next claims, alternatively, that the
court’s factual finding that Joel Sylvain satisfied the
standard for mental capacity to understand the transac-
tions in issue was clearly erroneous. We disagree.
The plaintiff argues that the trial court erred in not
crediting the medical testimony that she had offered.
The plaintiff argues that ‘‘[t]he court stated no reason
why the expert witness testimony and evidence that it
admitted was not considered in the decision. By stating
that the only credible testimony pointed towards Joel
Sylvain having sufficient mental capacity to amend the
trust, the court implied that the plaintiff’s experts were
in fact not credible. . . . Given the plaintiff’s experts’
status as Joel Sylvain’s treating physicians, as well as
their credentials and character, the court had no basis
by which to find that their testimony was not credible.’’
The plaintiff further argues that Joel Sylvain’s dementia
was more profound on August 22, 2005, than the court
found it to be, and that the court erred in crediting the
testimony of lay witnesses to determine Joel Sylvain’s
mental and physical health.
One of the plaintiff’s experts, Dr. Joy Antonelle
deMarcaida, a movement disorder specialist in neurol-
ogy, testified that it was ‘‘highly probable’’ that Joel
Sylvain did not understand the nature and the extent
of the changes he executed on August 22, 2005. She
formed this opinion after examining Joel Sylvain in
August, 2006, approximately one year after the execu-
tion of the trust amendments. Applying a regular rate
of progression to his dementia, she offered her opinion
as to Joel Sylvain’s mental abilities in August, 2005.
Another expert witness testifying on behalf of the plain-
tiff, Dr. John Schifferdecker, Joel Sylvain’s primary care
physician, examined Joel Sylvain approximately one
month prior to the execution of the trust amendments.
He testified that the trust was ‘‘quite lengthy and . . .
quite detailed and I don’t think he would be able to
understand the whole thing in its entirety. He may be
able to understand some of it.’’
Dr. Harry Morgan, a geriatric psychiatrist, testified
on behalf of the defendants. He said that it was not
possible for a medical professional accurately to opine
about the mental capabilities of a person suffering from
Lewy body disease and other problems such as those
suffered by the decedent one year prior to the date of
evaluation. He testified that Lewy body dementia is
characterized by a general trend downward, but is ‘‘indi-
vidual patient-specific’’ and that the individual could
have a good month, then go downward, then do better
and have another good month.’’ He testified that ‘‘[i]t’s
like a wave with a general downward wave, but there
are bumps along the way that make it a little harder to
predict where somebody is from month to month.’’ He
stated that ‘‘Lewy body dementia is one of the harder
illnesses to project backward in time.’’
Vinhateiro, the supervising attorney for the 2005 trust
amendment, met with the decedent at the time the trust
documents were amended. He testified that he would
not have proceeded if he thought that Joel Sylvain did
not understand what he was doing and the nature and
the disposition of his assets. Dale Sylvain testified that
on August 22, 2005, his father telephoned him and asked
him for a ride to the office of Nirenstein, Horowitz and
Associates in Hartford. Dale Sylvain stated that when
he asked his father why he was going to the law office,
his father answered that he wanted ‘‘to clean up the
mess that Sharon had made.’’ He testified that during
the August, 2005 time frame, his father would read the
newspaper and talk about what he had read, that he
could see, hear and talk and that on that day in particu-
lar his father was experiencing no hallucinations and
did not exhibit mental confusion. He stated that upon
entering the meeting room, his father stated, ‘‘I want
to write my daughter out.’’ He further testified that on
the ride home, his father stated that he had ‘‘fixed it.’’
A registered nurse at the adult day center attended by
the decedent noted nine days after the amendments
were executed that Joel Sylvain was communicative,
alert, orientated, sociable and only occasionally for-
getful.
The court found that: ‘‘The credible evidence pro-
duced at trial established that in the months both pro-
ceeding and following August 22, 2005, Joel [Sylvain]
had good days and bad days. Although he had been
diagnosed with dementia at that time, that alone is not
sufficient to prove his incapacity. . . . Medical records
and reports of Joel [Sylvain’s] credible family members
established that in the months immediately preceding
and following the execution of the 2005 Trust, Joel
[Sylvain] had good days during which he was alert,
communicative, knew his family, understood his
finances and was able to make decisions. Although he
had dementia, the condition had not yet progressed to
the point that he was fully incapacitated. Although Joel
[Sylvain] needed significant assistance from his family,
he was, for the most part, able to manage and direct
his affairs. Moreover and importantly, on the day that
he executed the 2005 Trust, Joel [Sylvain] had one of
his good days. Firsthand accounts of Joel [Sylvain’s]
mental state on August 22, 2005, from his son and attor-
ney, established that Joel [Sylvain] was not confused
in any way and did not have any hallucinations or other
signs of his dementia. Joel [Sylvain’s] attorney met with
him for an hour and went over the documents with
him. Attorney Vinhateiro had no concerns about Joel
[Sylvain’s] ability to understand the nature, extent and
consequences of his actions or decision to amend his
trust. The signing of the 2005 Trust and other documents
that day were properly notarized and witnessed by dis-
interested persons.’’
The court did not ignore medical testimony. It implic-
itly chose not to credit fully the testimony of the plain-
tiff’s experts, as applied to the facts of this case. The
court implicitly credited the testimony of Morgan to
the effect that Joel Sylvain had good and bad days in
the time frame of August, 2005. There was additional
evidence from Vinhateiro, Dale Sylvain and a registered
nurse to support the court’s finding that Joel Sylvain
had the requisite mental capacity to amend his trust
on August 22, 2005. These individuals observed Joel
Sylvain during the time frame of the execution of the
amendments. Lay witnesses are permitted to testify as
to medical conditions that constitute ‘‘obvious or simple
matters of everyday life . . . .’’ State v. Orsini, 155
Conn. 367, 372, 232 A.2d 907 (1967). See also Sanzo’s
Appeal from Probate, 133 Conn. App. 42, 49, 35 A.3d
302 (2012) (‘‘case law supports the proposition that lay
witnesses may testify as to a testatrix’ mental con-
dition’’).
The plaintiff’s argument that the court should have
credited the testimony of her experts rather than that
of Morgan, Vinhateiro, and Dale Sylvain is unavailing.
It is within the exclusive province of the trier of fact
to resolve credibility issues. McKeon v. Lennon, 155
Conn. App. 423, 435, 109 A.3d 986 (2015). ‘‘Nothing in
our law is more elementary than that the trier is the
final judge of the credibility of witnesses and of the
weight to be accorded their testimony.’’ (Internal quota-
tion marks omitted.) Schaffer v. Schaffer, 187 Conn.
224, 227, 445 A.2d 589 (1982). ‘‘[I]t is well established
that a reviewing court is not in the position to make
credibility determinations. . . . This court does not
retry the case or evaluate the credibility of the wit-
nesses. . . . Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude.’’ (Internal quotation marks
omitted.) Martinez v. Commissioner of Correction, 147
Conn. App. 307, 312, 82 A.3d 666 (2013), cert. denied,
311 Conn. 917, 85 A.3d 652 (2014). There was evidence
to support the court’s findings as to mental capacity;
its findings were not clearly erroneous.
II
The plaintiff finally claims that the court erred in
denying her claim of undue influence. She claims that
the burden of proof shifted to the defendants because
of a fiduciary relationship between them and Joel Syl-
vain. We disagree.
The burden of proving undue influence rests ordi-
narily with the one asserting it. See Bucchi v. Gleason,
137 Conn. 25, 30, 74 A.2d 212 (1950). ‘‘It is the child’s
privilege to anticipate some share of the parent’s estate.
He may use all fair and honest methods to secure his
parent’s confidence and obtain a share of his bounty.
From such a relationship alone, the law will never pre-
sume confidence has been abused and undue influence
exercised. . . . The distinction between a legatee who
is a child and one who is a stranger, being the religious
adviser, business agent, attorney, or physician of the
testatrix, is marked. The law casts the burden of show-
ing the absence of undue influence upon the legatee
holding such fiduciary relation; otherwise the burden
of proving undue influence remains with the party alleg-
ing it.’’ (Citations omitted.) Hills v. Hart, 88 Conn. 394,
396, 91 A. 257 (1914). ‘‘If . . . a confidential relation-
ship is proved, then the burden of proving fair dealing or
the burden of showing the absence of undue influence
shifts to the defendant or the fiduciary, and that burden
must be sustained by clear and convincing evidence.
. . . [If] such a fiduciary relationship was not estab-
lished, the burden of proof . . . remained with the
plaintiffs.’’ (Citations omitted.) Cooper v. Cavallaro, 2
Conn. App. 622, 626, 481 A.2d 101 (1984).
We apply a plenary standard of review to the issue
of whether the correct legal standard was used by the
trial court. Hartford Courant Co. v. Freedom of Infor-
mation Commission, 261 Conn. 86, 96–97, 801 A.2d
759 (2002). ‘‘[W]hen the resolution of a question of law,
such as the existence of a fiduciary duty, depends on
underlying facts that are in dispute, that question
becomes, in essence, a mixed question of fact and law.
Thus, we review the subsidiary findings of historical
fact, which constitute a recital of external events and
the credibility of their narrators, for clear error, and
engage in plenary review of the trial court’s application
of . . . legal standards . . . to the underlying histori-
cal facts.’’ (Internal quotation marks omitted.) Iacurci
v. Sax, 313 Conn. 786, 797 n.12, 99 A.3d 1145 (2014).
In her posttrial brief, the plaintiff argued that the
defendants unduly influenced Joel Sylvain, causing him
to execute the 2005 trust amendments. She further
argued that, by exerting undue influence on Joel Syl-
vain, Dale Sylvain and Kenneth Sylvain breached fidu-
ciary duties owed to Joel Sylvain as his attorneys-in-
fact, and Dale Sylvain also breached the duty owed to
his father as trustee. The plaintiff argued that, because
the defendants breached a fiduciary duty owed to Joel
Sylvain, the burden of persuasion shifted to the
defendants.
The court determined that the plaintiff failed to pre-
sent credible evidence to support her claim that Joel
Sylvain’s decision to remove her as a beneficiary
resulted from the application of undue influence by the
defendants and rejected her claim.3 The court noted
that the plaintiff cited no precedent to support her con-
clusion that a fiduciary relationship is established
merely by virtue of being a beneficiary of a trust or a
‘‘disability or death trustee.’’ The court concluded that
the status of Dale Sylvain and Kenneth Sylvain as Joel
Sylvain’s attorney-in-fact and successor-attorney-in-
fact, respectively, was not alone sufficient to shift the
burden in these circumstances, particularly because
there was no evidence that the defendants exercised
their power of attorney in relation to Joel Sylvain’s
decision to amend the trust in 2005. The court further
found that neither Dale Sylvain nor Kenneth Sylvain
was present in the room when Joel Sylvain executed
the 2005 trust documents and that Joel Sylvain signed
the 2005 trust documents as trustor and trustee. The
attorney did not believe that Joel Sylvain was acting
under any improper influence.
The plaintiff argues on appeal that the court erred
in concluding that Dale Sylvain and Kenneth Sylvain
did not owe a fiduciary duty to Joel Sylvain,4 and accord-
ingly, erred in declining to shift the burden. She con-
tends that ‘‘[w]hile Dale [Sylvain] and Kenneth Sylvain
happened to hold fiduciary roles as attorney-in-fact and
conservator5 leading up to and following the 2005 trust
amendment, they were also considered fiduciaries by
means of their close, trusting and controlling relation-
ship with Joel Sylvain.’’ The trial court found that nei-
ther Dale Sylvain nor Kenneth Sylvain exercised his
power of attorney in relation to Joel Sylvain’s decision
to amend the 1996 trust, and that finding is not clearly
erroneous. Joel Sylvain signed the 2005 trust amend-
ments as settlor and trustee, and the court found that
at the time of the execution of the 2005 trust amend-
ments that Joel Sylvain was not subject to influence
regarding his financial affairs and estate planning, but
rather that he was headstrong and that his family took
direction from him. The plaintiff has cited no authority
for the proposition that an unused power of attorney
creates a more general fiduciary duty as to all affairs.
Furthermore, the plaintiff’s argument regarding a fidu-
ciary duty created by virtue of a parent-child relation-
ship was neither addressed by the trial court nor
correct. The existence of ‘‘a relation of personal confi-
dence’’ between parent and child does not in itself raise
a legal presumption of undue influence, nor does it shift
the burden of proving undue influence to the opposing
party. Hills v. Hart, supra, 88 Conn. 396.
On the basis of its factual findings, which are not
clearly erroneous, the trial court correctly concluded
that the execution of the trust amendments did not
occur within either a formal fiduciary relationship, such
as that of conservator-ward or trustee-beneficiary, or
a more generalized fiduciary relationship, characterized
by a justifiable trust on one side and resulting superior-
ity and influence on the other. See Ahern v. Kappalu-
makkel, 97 Conn. App. 189, 194, 903 A.2d 266 (2006).
Accordingly, the plaintiff cannot prevail on her claim
that the court erred in declining to shift the burden of
proving undue influence to the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hilda Sylvain was also named as a defendant. Only Dale Sylvain and
Kenneth Sylvain are involved in the present appeal, and thus the term
‘‘defendants’’ will refer to Dale Sylvain and Kenneth Sylvain only.
2
We recite the court’s findings of fact at some length because the trial
court’s recitation, based on the evidence, aptly explains the controversy
and provides factual support for its conclusions.
3
The court concluded that Joel Sylvain had reasons to remove the plaintiff
as a beneficiary of his estate. She was estranged from the family due to her
disagreement with the rest of the family over Joel Sylvain’s health care and
her erratic and drunken behavior. The court determined that ‘‘Joel [Sylvain]
was not a person subject to influence regarding his financial affairs and
estate planning. From all accounts, Joel [Sylvain] was determined and head-
strong, and if anything, his family took direction from him.’’ Despite Joel
Sylvain’s medical conditions, ‘‘it was Joel [Sylvain] that was making decisions
related to his health care, finances and estate planning, and the defendants
who carried out his wishes. The defendants assisted Joel [Sylvain] by making
deposits, writing checks, driving him places and took direction from him.’’
4
The plaintiff’s contention that she was harmed by a violation of a fiduciary
relationship between Joel Sylvain on the one hand and Dale Sylvain and
Kenneth Sylvain on the other is strained for several reasons. First, Dale
Sylvain became a trustee of Joel Sylvain’s trust approximately one year
following the execution of the documents in question; he was not a trustee
at the time the documents were executed and the plaintiff was ‘‘written
out’’ of the documents. Although both Dale Sylvain and Joel Sylvain held
powers of attorney at the time, the power of attorney had nothing directly
to do with the execution of the documents in question.
5
The trial court found that at the time of execution of the trust amendment,
Joel Sylvain designated Kenneth Sylvain ‘‘as the conservator of his person
and estate should he become incapable of managing his affairs, and nam[ed]
Dale [Sylvain] as his power of attorney.’’ There is no finding that anyone
was a conservator at the time the amendment was executed.