Bassford v. Bassford

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APPENDIX
ANDREW BASSFORD ET AL. v. FRANCES Z.
BASSFORD*
Superior Court, Judicial District of Middlesex
File Nos. CV-15-6012903-S and CV-15-6013338-S
Memorandum filed March 24, 2016
Proceedings
Memorandum of decision on plaintiffs’ appeals from
orders of Probate Court for district of Middletown
determining revocability of decedent’s trust, title to cer-
tain real property and admitting decedent’s will.
Appeals dismissed.
Carmine Perri and Taylor J. Equi, for the plaintiffs.
Joseph A. Hourihan, for the defendant.
Opinion
HONORABLE BARBARA M. QUINN, JUDGE TRIAL
REFEREE. In these two consolidated cases, the plain-
tiffs, Andrew and Jonathan Bassford and Zelda Alibzek,
have appealed from the admission of their father’s will
to probate and from the revocation of a trust as well
as the validity of a quitclaim deed thereafter executed
by the trustees, all in furtherance of their father’s estate
plan. They claim that they are aggrieved parties and that:
(1) the decedent, their father, Dr. William W. Bassford,
lacked testamentary capacity at the time of the execu-
tion of his last will and testament; (2) a trust Dr. Bass-
ford had earlier established was irrevocable, and
therefore, its revocation was improper and of no effect.
The trust assets could therefore not properly be con-
veyed and become part of the decedent’s estate; (3)
that the decedent lacked the capacity to accept the
deed for property held in the purportedly irrevocable
trust; (4) and there was undue influence exerted by the
defendant, his surviving widow and their stepmother,
in securing the execution of the new will. For the rea-
sons set forth in detail below, the court finds all issues
in favor of the defendant and dismisses these appeals.
I
BACKGROUND
From the reliable, probative and credible evidence,
the court finds the following facts. The defendant, Dr.
Bassford’s widow, is his third wife and at the time of
his death on February 19, 2014, Dr. and Mrs. Bassford
had been married for thirty-three years. The defendant,
Frances Bassford, became Dr. Bassford’s conservatrix
when he was involuntarily conserved in November
2011. Dr. Bassford’s three children are his children from
his first marriage, and by their conduct at trial, were
not close to their stepmother. Dr. Bassford executed a
will in 2006 in which the bulk of his estate was left to
his three children. On May 7, 2012, he executed a new
will in which he changed his estate plan to leave the
bulk of his estate to his wife, with certain articles of
personal property to two of his three children and some
of his grandchildren, and one dollar to his son, Jona-
than. The will of May 7, 2012, was duly admitted to
probate, after findings made by Judge Marino that Dr.
Bassford possessed sufficient testamentary capacity to
execute the new will. He also found that the will was
executed with the necessary statutory formalities. In
addition, he determined that there was no evidence of
undue influence by Frances Bassford, as claimed by
Dr. Bassford’s children. This appeal ensued.
Additionally, Dr. Bassford’s children challenged the
revocation of the trust established by Dr. Bassford as
well as his acceptance of a deed to real estate from the
trustees. Judge Marino held the trust to be revocable
and that Dr. Bassford could receive the deed to the real
estate in Cromwell on which his home was located and
in which he resided. An appeal was taken to the Supe-
rior Court and the two appeals are now consolidated.
II
JURISDICTION AND AGRRIEVEMENT
When considering an appeal from an order or decree
of a Probate Court, the Superior Court takes the place
of and sits as the court of probate. ‘‘In ruling on a
probate appeal, the Superior Court exercises the pow-
ers, not of a constitutional court of general or common
law jurisdiction, but of a Probate Court.’’ (Internal quo-
tation marks omitted.) State v. Gordon, 45 Conn. App.
490, 494, 696 A.2d 1034, cert. granted on other grounds,
243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed
October 27, 1998).
The trial court does not have ‘‘subject matter jurisdic-
tion to hear an appeal from probate unless the person
seeking to be heard has standing. . . . In order for an
appellant to have standing to appeal from an order or
decree of the Probate Court, the appellant must be
aggrieved by the court’s decision. General Statutes
§ 45a-186 . . . . Aggrievement falls within two catego-
ries, classical and statutory. . . . Classical
aggrievement exists where there is a possibility, as dis-
tinguished from a certainty, that a Probate Court deci-
sion has adversely affected a legally protected interest
of the appellant in the estate. . . . Statutory
aggrievement exists by legislative fiat which grants an
appellant standing by virtue of particular legislation,
rather than by judicial analysis of the particular facts
of the case. . . . It merely requires a claim of injury
to an interest that is protected by statute.’’ (Citations
omitted; internal quotation marks omitted.) Kucej v.
Kucej, 34 Conn. App. 579, 581–82, 642 A.2d 81 (1994),
overruled in part on other grounds by Heussner v.
Hayes, 289 Conn. 795, 807, 961 A.2d 365 (2008); see
also Marchentini v. Brittany Farms Health Center,
Inc., 84 Conn. App. 486, 490, 854 A.2d 40 (2004).
In this instance, Dr. Bassford’s three children would
have received a different and greater portion of their
father’s estate had the Probate Court ruled in their
favor. By its contrary ruling, each of Dr. Bassford’s
children is classically aggrieved. They each have stand-
ing to prosecute these appeals and the court has juris-
diction to hear these appeals.
III
FACTS AND DISCUSSION
A
Burdens of Proof, Due Execution of Will
And Testamentary Capacity
Our law provides that ‘‘[a]n appeal from probate is
not so much an appeal as a trial de novo with the
Superior Court sitting as a Probate Court and restricted
by a Probate Court’s jurisdictional limitations. . . . At
the trial de novo, a will’s proponent retains the burden
of proving, by a preponderance of the evidence, that
the will was executed in the manner required by statute.
. . . The proponent must prove anew that the will’s
execution was in compliance with the statute in effect
at the time it was executed. . . . To be valid, [a] will
must comply strictly with the requirements of [the]
statute. . . . Because the offer for probate of a putative
will is in essence a proceeding in rem the object of
which is a decree establishing a will’s validity against
all the world . . . the proponent must at least make
out a prima facie case that all statutory criteria have
been satisfied even when compliance with those criteria
has not been contested.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Gardner v.
Balboni, 218 Conn. 220, 225–26, 588 A.2d 634 (1991).
In this case, the proponent of the will is the defendant,
Mrs. Bassford. Connecticut General Statutes § 45a-251
governs the proper execution of a will and provides in
pertinent part: ‘‘A will or codicil shall not be valid to
pass any property unless it is in writing, subscribed by
the testator and attested by two witnesses, each of them
subscribing in the testator’s presence . . . .’’ The facts
demonstrate unequivocally that Dr. Bassford’s attorney,
Attorney Annette V. Willis, brought two witnesses into
the home and Dr. Bassford signed the will in their pres-
ence. While on some points the witnesses’ subsequent
testimony by way of deposition transcripts reflects their
lack of detailed recall, such testimony is inadequate to
overcome both Attorney Willis’ direct testimony to the
events of that day as well as the contents of their sworn
affidavit on the bottom of the will that they state under
oath that they: ‘‘attested the within and foregoing Will
. . . and subscribed the same in his presence and at
his request and in the presence of each other; that the
said Testator signed, published and declare the said
Instrument as and for his Last Will and Testament in
our presence on this 7th day of May, 2012; and at the
time of the execution of said Will said Testator was
more than eighteen years of age, was able to understand
the nature and consequences of the document and was
under no improper influence or restraint to the best of
our knowledge and belief . . . .1
Contrary to Plaintiffs’ arguments, the will was prop-
erly executed in accordance with the statutory require-
ments. The court finds, from the relevant and probative
evidence, that the defendant has met her burden of
proof of the due execution of the will.
The proper execution of Dr. Bassford’s will is only
the first of the plaintiffs’ several challenges to the will’s
effectiveness and admission to probate. The major issue
in this appeal is Dr. Bassford’s capacity to make a will.
General Statutes § 45a-250 provides that: ‘‘Any person
eighteen years of age or older, and of sound mind, may
dispose of his estate by will.’’ ‘‘The burden of proof in
disputes over testamentary capacity is on the party
claiming under the will.’’ Stanton v. Grigley, 177 Conn.
558, 564, 418 A.2d 923 (1979). The defendant in this
case has this burden as well.
‘‘What constitutes testamentary capacity is a question
of law. . . . To make a valid will, the testatrix must
have had mind and memory sound enough to know and
understand the business upon which she was engaged,
that of the execution of the will, at the very time she
executed it. . . . Whether she measured up to this test
is a question of fact for the trier.’’ (Citations omitted.)
City National Bank Trust Co.’s Appeal, 145 Conn. 518,
521, 144 A.2d 338 (1958).
Our law provides that it is a testator’s capacity at
the time of the will execution that is relevant. ‘‘The
fundamental test of the testatrix’s capacity to make a
will is her condition of mind and memory at the very
time when she executed the instrument. . . . While in
determining the question as to the mental capacity of
a testator evidence is received of his conduct and condi-
tion prior and subsequent to the point of time when it
is executed, it is so admitted solely for such light as it
may afford as to his capacity at that point of time and
diminishes in weight as time lengthens in each direction
from that point.’’ (Citations omitted.) Jackson v. Waller,
126 Conn. 294, 301, 10 A.2d 763 (1940).2
The decedent, Dr. Bassford, as the medical evidence
and other testimony demonstrates, was a person who
suffered from severe anxiety and depression as well as
post-traumatic stress disorder from his service in World
War II. None of the parties dispute that he suffered
from some mild to moderate dementia, had impaired
hearing and was susceptible to frequent urinary tract
infections from his Foley catheter, which had been in
place for over nineteen years at the time of his death.
Due to the drug treatment Dr. Bassford received for
anxiety, he became dependent on benzodiazepine, spe-
cifically Lorazepam.3 The use of this drug is known to
cause some impairment of general cognitive function,
as well. When he suffered from urinary tract infections,
he would become delirious and require hospitalization.
Treatment with antibiotics stabilized him quickly and
he returned to his former functioning state.
Dr. Bassford became concerned about the distribu-
tion of his monthly Veterans Administration pension
payments and his estate in 2011. The defendant in these
appeals, Mrs. Bassford, then commenced an involuntary
conservatorship proceeding to have Dr. Bassford con-
served. Attorney Willis was appointed to represent Dr.
Bassford in October, 2011, by the Probate Court. She
had not met him prior to her appointment by the court.
From Attorney Willis’ testimony, the court finds that
in October of 2011, when she met him, Dr. Bassford was
eloquent, well-spoken and coherent. He was oriented
as to place and time. He was upset that his pension
payments were going to his children. He was able to
ask relevant and reasonable questions about the conser-
vatorship. The court finds that Dr. Bassford was
informed about the types of conservatorship possible,
voluntary and involuntary. His counsel affirmed she
was aware that he had memory deficits and anxiety
and did not like to leave his home. Nonetheless, he was
clear he wanted his wife to have full authority over his
affairs and to help him secure his pension payments.
When his counsel met with Dr. Bassford, after the pre-
liminary social niceties, she met alone with Dr. Bass-
ford. The defendant did not participate in the
discussions and was not in the room when Attorney
Willis and Dr. Bassford discussed his legal affairs and
his pension payments.
Andrew Bassford testified to the fact that his father,
at the time the veteran’s pension benefits had earlier
commenced, wanted his children to receive those bene-
fits as they came from a time when he had not yet
married the present Mrs. Bassford. There was some
indication that at the commencement of the payments,
they were deposited into Dr. Bassford’s bank accounts
and then distributed to his children. By 2011, these
benefits were being deposited into accounts no longer
under Dr. Bassford’s control.
At the time of the conservatorship, the court finds,
such distributions were no longer what he desired. Even
if, as the plaintiffs claim, there was tension between
the family members and between Dr. Bassford and his
wife,4 there was ample opportunity for him to request
different actions from his attorney, during their private
meetings. He never did so, despite having multiple
appointments with her. He emphasized how upset he
was with his son, Jonathan, and his conduct. From this,
the court finds, that his wishes at the time in question
were as stated to his attorney. He wanted his veteran’s
pension to be paid into his own accounts for his use.
In due course, the pension payments were rerouted
from Dr. Bassford’s children to Dr. Bassford’s accounts.
During the time of the proceedings leading up to the
conservatorship, Dr. Bassford informed Attorney Willis
about his desire to change his will and the distribution
of his estate. Once the conservatorship was completed,
and over the course of the next several months after
the conservatorship was granted, Attorney Willis began
her work to carry out his wishes. There were at least
three meetings for his lawyer to go over his estate plan
and conduct a detailed review of his assets with him.
It was during this time that Attorney Willis came to
understand that there was a trust containing his interest
in the home in which the Bassfords resided in addition
to a retirement account. Dr. Bassford’s statements of
his wishes regarding his estate remained consistent
over these months and at each meeting with Attorney
Willis. He never wavered or was confused about his
desires. He was focused on adequately providing for
his wife.
Dr. Bassford and Attorney Willis had a meeting in
March, 2012, in his home. She spoke with him in detail
about his assets and what he wanted to happen in his
will and his general estate plan. At that time and earlier,
he was and had been insistent that his son Jonathan only
receive one dollar. Dr. Bassford wanted his treasured
antiques to go to his other two children and some of
his grandchildren. Subsequently, after the March
appointment, Dr. Bassford and Mrs. Bassford prepared
a list of those items of personal property, as Dr. Bass-
ford’s handwriting was a bit shaky. Attorney Willis
reviewed that list with him in detail and had him sign
it at their next meeting on April 26, 2012. The list5 clearly
specifies what is to be distributed and to whom and
the last page is in his handwriting. In addition, on that
day Dr. Bassford wrote out and signed a note indicating
he only wished his son Jonathan to receive one dollar
upon his death.6 The court finds that the list and note
represented Dr. Bassford’s personal wishes.
Next, Dr. Bassford’s general mental condition was
evaluated, at Attorney Willis’ request, by a psychiatrist,
Dr. Jay A. Lasser, who subsequently issued a report
and testified at the probate hearing as well as at trial.
Dr. Lasser met with Dr. Bassford on April 26, 2012, and
conducted a formal clinical interview. He previously
had access to and had reviewed Dr. Bassford’s exten-
sive medical history. He confirmed that Dr. Bassford
had dementia, which was a slowly progressive and
ongoing condition. He found Dr. Bassford to have mem-
ory deficits and, determined from recent medical
records, that he had had episodes of delirium when he
had urinary tract infections.7 Dr. Lasser found that when
Dr. Bassford’s infections were treated, he returned to
lucidity quickly. He found the episodes of infection-
induced delirium had no residual impact on his baseline
cognitive level, which he admitted was impaired. He
agreed that Dr. Bassford’s functioning fluctuated signifi-
cantly from time to time, but that when he was well
and not in the throes of an infection, he functioned at
a stable level. In his professional psychiatric opinion,
Dr. Bassford possessed the cognitive ability to know
the nature and extent of his assets and what he wanted
to have done with them.
On May 7, 2012, Dr. Bassford met with his counsel,
Attorney Willis, and reviewed his will, the list of per-
sonal property contained within the will, his decision
to leave his son Jonathan only one dollar and the other
details of his will. He also reviewed his health care
directive and independently noted some errors when
it was presented to him. He corrected those errors him-
self, and initialed them. He then signed his will and the
directive in front of two witnesses and Attorney Willis
took his acknowledgment and signed the self-proving
affidavit of the witnesses. From Attorney Willis’ testi-
mony, the court finds that he was functioning at his
normal level on that day, that he was well-spoken, lucid
and aware of the time and place. He understood her
questions and directions. He knew the nature and extent
of his estate and how he wanted it distributed. Those
statements and wishes were consistent with those he
had expressed in the months leading up to the execution
of his last will and testament.
Plaintiffs called a psychiatric expert, Dr. Harry E.
Morgan, who reviewed Dr. Bassford’s extensive multiy-
ear medical records, but did not meet with him person-
ally. In general, his opinion was that Dr. Bassford did
not have sufficient capacity to execute a will. He partic-
ularly focused on the impairments to his executive func-
tions and the tests which demonstrated his deficits. Dr.
Morgan’s expert testimony, despite his evident exper-
tise, is not persuasive on this conclusion, the court
finds, based both on his lack of opportunity to person-
ally observe Dr. Bassford and his testimony about the
actions Dr. Bassford took on the day of the will execu-
tion. Dr. Morgan admitted that, if Dr. Bassford was able
to make independent, unsolicited corrections to a legal
document on the day of his will execution, then at that
time, he possessed sufficient mental capacity to execute
his will. The court has specifically found that he made
such independent corrections to his health care direc-
tive on that day. Attorney Willis’ testimony and the
document reflect those independently made correc-
tions.8 Dr. Morgan’s admissions are further evidence
and support for the conclusion that Dr. Bassford knew
and understood what he was about at the time he signed
the will on May 7, 2012. The court finds, from all of the
evidence, that Dr. Bassford, on May 7, 2012, had the
requisite mental capacity to understand what he was
signing. He knew the nature and extent of his estate
and how he wanted his last will and testament to distrib-
ute that estate upon his death.
B
Nature of Trust and Its Revocation,
Mental Capacity to Revoke
1
Nature of Trust and Revocation
The next legal task to be completed on Dr. Bassford’s
behalf was the revocation of the trust Dr. Bassford had
established, so that terms of his estate plan, as he had
outlined those wishes to Attorney Willis, could be
accomplished. Plaintiffs first claim that it was not a
revocable trust. Dr. Bassford established a trust on July
7, 2006 labeled the ‘‘William W. Bassford Irrevocable
Trust.’’ That trust, however, contained an Article Two,
which specifically states that: ‘‘[n]otwithstanding any-
thing herein contained, the Settlor explicitly reserves
the following powers . . . 5. [t]o revoke this trust
. . . .’’ While the plaintiffs argue that the title of the trust
should control, rules of the construction of contracts
indicate otherwise.
In general, it is hornbook law that where the language
of the contract is clear and unambiguous, the contract
is to be given effect according to its terms. ‘‘[W]here
there is definitive contract language, the determination
of what the parties intended by their contractual com-
mitments is a question of law.’’ (Internal quotation
marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas
Transmission System, L.P., 252 Conn. 479, 495, 746
A.2d 1277 (2000). ‘‘[T]he intent of the parties is to be
ascertained by a fair and reasonable construction of
the written words and . . . the language used must be
accorded its common, natural, and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract. . . . Where the language of the
contract is clear and unambiguous, the contract is to
be given effect according to its terms. A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms.’’ (Internal
quotation marks omitted.) Id., 498.
In this trust, there is a conflict between the label used
in the title ‘‘Irrevocable’’ and the direct provisions in
Article Two. The rule has long been established that:
‘‘If the recitals are clear and the operative part is ambig-
uous, the recitals govern the construction. If the recitals
are ambiguous, and the operative part is clear, the oper-
ative part must prevail. If both the recitals and the
operative part are clear, but they are inconsistent with
each other, the operative part is to be preferred.’’ (Inter-
nal quotation marks omitted.) Wilson v. Towers, 55 F.2d
199, 200 (4th Cir. 1932).
The plaintiffs argue that the recital, that is to say
the word ‘‘Irrevocable’’ in the title of this trust, should
control. Such a construction would defeat the more
detailed and operative terms of Article Two and there-
fore, the court finds, that the more detailed provisions
more consistently carry out the settlor’s intent and
wishes, namely that he should be able to revoke the
trust at his discretion. The court interprets and con-
strues the trust to effectuate that intent and finds that
it is a revocable trust.9
2
Mental Capacity to Revoke Trust
Next, plaintiffs challenge Dr. Bassford’s mental
capacity to revoke the trust. While separate from the
issue of testamentary capacity, these claims raise simi-
lar issues, although on such claims the plaintiffs have
the burden of proof. The law on taking any action with
respect to a trust requires the individual taking such
action to have the mental capacity to undertake busi-
ness. Such action requires a greater capacity than the
ability to make a will. As noted in Kunz v. Sylvain, 159
Conn. App. 730, 123 A.3d 1267 (2015), a case with many
similarities to the present case, there were two different
standards for signing a will and taking action with
respect to a trust. Kunz quoted Deroy v. Estate of
Baron, 136 Conn. App. 123, 127, 129, 43 A.3d 759 (2012),
that a person may have the mental capacity necessary to
make a will although incapable of transacting business
generally. See also Turner’s Appeal, 72 Conn. 305, 44
A. 310 (1899). In Kunz, the court reviewed the task
required of the settlor of the trust in amending it and
found it was a simple matter. It held that the requisite
mental capacity under the higher standard had been
established.
A review of the relevant facts reveals that on June
14, 2012, Dr. Bassford was psychiatrically hospitalized
at the Institute of Living. He was feeling more ‘‘anxious
and more depressed over the past few weeks prior to
admission’’ and ‘‘stated he was experiencing suicidal
ideations.’’10 The discharge note goes on to say that
during the course of his stay, ‘‘[t]he patient was alert
and oriented x3, but sometimes would become easily
confused with multiple stressors and multiple parts
of information.’’11
When Attorney Willis came to visit Dr. Bassford at
the Institute, she brought her husband with her as a
witness. She testified that, on that day, she had a ques-
tion and answer session with Dr. Bassford that lasted
approximately twenty minutes. He was alert and not
confused. She had advised Dr. Bassford that execution
of the trust revocation awaited his discharge. Nonethe-
less, Dr. Bassford wanted to proceed and put the whole
matter behind him as he knew that the will would not
have the effect he intended without the revocation. He
instructed her to proceed, despite her cautions. She
recalled that she had reviewed the trust terms with him
from memory and certainly the right to revoke the trust.
On June 20, 2012, Dr. Bassford signed the revocation
as well as his wife, Frances Bassford. Attorney Willis
took their acknowledgments. Mrs. Bassford also testi-
fied to his functioning on that day and confirmed Attor-
ney Willis’ account of Dr. Bassford’s lucidity.
The court finds that Dr. Bassford was functioning at
his normal level on that day, and understood what he
was about. The plaintiffs argue and stress that Dr. Bass-
ford was not capable of making such a decision with
the level of cognition and understanding required. Dr.
Morgan, the plaintiffs’ expert had testified that Dr. Bass-
ford had ever increasing dementia and impairment of
his executive functions, as well as acalculia, the inability
to deal with numbers involving even a moderate level
of complexity. And the Institute of Living discharge
note of July 3, 2012, also talks about Dr. Bassford’s
rising levels of confusion with ‘‘multiple stressors and
multiple parts of information.’’12
Nonetheless, the court finds that the task required
of Dr. Bassford on that day in June, 2012, had been
discussed and contemplated by him over the course of
more than three months and his desire to complete his
estate plan had not wavered or changed in any way.
There were not ‘‘multiple stressors or multiple parts of
information’’ for him to process with respect to the
revocation of his trust. This was a simple task which
did not require complex or interrelated decisions or
numerical calculations. He simply needed to indicate
his desire to revoke his trust. There were no facts in
support of a finding that Dr. Bassford was confused
about what was happening.
Plaintiffs stress that Attorney Willis failed to review
with Dr. Bassford all relevant terms of the trust or bring
the trust with her on that day. Specifically, they cite
the need to review with him Articles Two, Three, Four
and Thirteen.13 The court begs to differ. All Dr. Bassford
needed to know was his lawyer’s opinion and her basis
for concluding that the trust was revocable and what
was necessary for him to do; that is as settlor, state his
reasons for revoking the trust, revoke the trust and also
request that his trustees take such action. As Kunz
v. Sylvain, supra, 159 Conn. App. 730, suggests, the
complexity of the task at hand is of relevance in the
determination about a person’s required level of func-
tioning. On June 20, 2012, it is apparent, and the court
finds, that Dr. Bassford clearly understood what was
required and what task he was undertaking. It was a
simple matter. He was not confused or uncertain but
had been independently determined, even while so hos-
pitalized, to proceed with this action and complete his
estate plan. The court finds he had the greater mental
capacity legally required to undertake this transaction.
The last steps to complete the transaction were
required of Dr. Bassford’s trustees. His trustees, William
Long and Henry L. Long, Jr., were two longtime friends
of Dr. Bassford’s from his childhood.14 Dr. Bassford had
earlier requested that his counsel contact them about
his wishes. This Attorney Willis accomplished by letter
and the Long brothers visited Dr. Bassford while he
remained at the Institute of Living. Each of them stated
that Dr. Bassford appeared his normal self and was able
to carry on a conversation with them. According to
Henry Long, Jr., when Dr. Bassford said what he
wanted, he was going to do it, as this was his best
friend. William Long testified, when questioned about
the detailed recitals in the revocation instrument, he
did not now recall, but that he would not have signed
the document if the statements were not true. The recit-
als in the instrument are that Dr. Bassford requested
the revocation of the trust, that he wished the real
property contained in the trust to be reconveyed to
him, that the Longs had personally conferred with Dr.
Bassford and that they had read Dr. Lasser’s report
concerning Dr. Bassford’s capacity to make a new will.15
At trial in December, 2015, Henry Long recalled the
letter sent to him by Attorney Willis and that it contained
other information which he believed he must have
read.16 They subsequently signed the trust revocation
some days after their visit with Dr. Bassford.
From the testimony of the Long brothers, Attorney
Willis’ testimony, the simple nature of the actions
required, Dr. Bassford’s awareness of the important
connection of this document to his estate, as well as
his sense of urgency on June 20, 2012, the court finds
that Dr. Bassford had the requisite mental capacity to
properly revoke the trust he had established in 2006.
The plaintiffs’ claims must fail, as they have not met
their burden of proof.
C
Ability to Accept Deed
There remains the issue of Dr. Bassford’s status as a
conserved person, which implicates his ability to accept
the deed from his trustees conveying the revoked trust’s
interest in the real estate to him. As a preliminary mat-
ter, it is interesting to note that the probate decision
by Judge Marino of November 21, 2014, holds that the
involuntary conservatorship did not remove Dr. Bass-
ford’s right to take action with respect to his trust or
to accept title to real estate.17 Specifically, he stated
that the issue of ‘‘Dr. Bassford’s capacity to authorize
revocation of the Trust and to accept a conveyance of
property from the Trust is covered by [§] 45a-650 [(c)] of
the Connecticut General Statutes. ‘A conserved person
shall retain all rights and authority not expressly
assigned to the conservator.’ ’’ Those rights, he notes,
were not specifically assigned to the conservator. The
court agrees and finds that Dr. Bassford retained such
rights and could, despite being a conserved person,
request that the trustees revoke the trust and revoke
it himself. Further, he could request they convey real
estate to him.
Plaintiffs cite Connecticut General Statutes § 45a-653
in support of their proposition that Dr. Bassford could
not accept the real property conveyed to him. The court
finds this statutory section to be inapposite since it
concerns conveyances of property by the proposed con-
served or conserved person, not the situation before
the court. The public policy of this statute is to protect
a conserved person from depleting his or her assets,
not adding to them, as results from the acceptance
of a deed to property. Certainly, the specific right for
trustees to convey property is set forth in the Connecti-
cut Fiduciary Powers Act, General Statutes § 45a-234
(2). The court concludes there is no prohibition against
a conserved person receiving title to real property from
another source. Plaintiffs have not prevailed on this
claim.
4
Undue Influence
Plaintiffs also claim that the defendant exerted undue
influence in getting Dr. Bassford to sign a will leaving
the bulk of his estate to her. The burden of proof on this
issue remains with the plaintiffs. The law provides that:
‘‘Undue influence is the exercise of sufficient control
over a person, whose acts are brought into question,
in an attempt to destroy his [or her] free agency and
constrain him [or her] to do something other than he
[or she] would do under normal control. . . . It is
stated generally that there are four elements of
undue influence:
‘‘(1) a person who is subject to influence;
‘‘(2) an opportunity to exert undue influence;
‘‘(3) a disposition to exert undue influence; and
‘‘(4) a result indicating undue influence. . . .
‘‘Relevant factors include age and physical and men-
tal condition of the one alleged to have been influenced,
whether he [or she] had independent or disinterested
advice in the transaction . . . consideration or lack or
inadequacy thereof for any contract made, necessities
and distress of the person alleged to have been influ-
enced, his [other] predisposition to make the transfer
in question, the extent of the transfer in relation to his
[or her] whole worth . . . failure to provide for all of
his [or her] children in case of a transfer to one of them,
active solicitations and persuasions by the other party,
and the relationship of the parties.’’ (Citations omitted;
internal quotation marks omitted.) Pickman v. Pick-
man, 6 Conn. App. 271, 275–76, 505 A.2d 4 (1986). See
also Lee v. Horrigan, 140 Conn. 232, 237, 98 A.2d 909
(1953).
While it is true that Mrs. Bassford was Dr. Bassford’s
conservatrix, it has not been demonstrated that Dr.
Bassford was a person subject to such influence nor
susceptible to it. While Mrs. Bassford was in a position
to exert such influence, the testimony of Attorney Willis
and her independent observations of Dr. Bassford dem-
onstrate that such influence was not exerted. Dr. Lasser
also testified to the fact that Dr. Bassford was aware
of his situation and clear about his wishes. There is no
direct evidence of undue influence, and to the extent
it may exist, it is inferential in nature; merely by the
position of these parties as husband and wife in the
twilight of their lives.
Direct evidence of undue influence is often not avail-
able and is not indispensable. See Salvatore v. Hayden,
144 Conn. 437, 440, 133 A.2d 622 (1957). But the mere
opportunity to exert undue influence is not alone suffi-
cient. There must be proof not only of undue influence
but that its operative effect was to cause the testator
to make a will which did not express his actual testa-
mentary desires. Hills v. Hart, 88 Conn. 394, 402, 91 A.
257 (1914). On all these points, the plaintiffs have failed
to meet their burden of proof. There simply is no evi-
dence. Their suspicions alone are not enough. On this
claim, the court also finds for the defendant.
ORDERS
For all of the foregoing reasons, the plaintiffs’ claims
fail and the appeals are dismissed.
* Affirmed. Bassford v. Bassford, 180 Conn. App. 331, A.3d (2018).
1
Exhibit A and Exhibit 71, copies of Dr. Bassford’s Last Will and Testa-
ment, dated May 7, 2012.
2
It is for these legal reasons, that most of Dr. Bassford’s medical records
dating from 2006 through 2011 are not highly relevant to the issue of his
testamentary capacity on May 7, 2012. They are all simply too remote in time.
3
Many exhibits concerning Dr. Bassford’s medical condition were intro-
duced, which detailed his various conditions including his medication his-
tory, starting from 2006 forward. Those records reflect that on a number
of occasions, his doctors attempted to reduce his Lorazepam dosage and
dependence, with resulting significant increases in his anxiety levels. Each
such attempt ended when his treaters reluctantly acquiesced in his use of
this drug at the dosages required to keep him calm and stable.
4
The plaintiffs point to multiple medical records documenting such ten-
sion during times of medical stress, delirium and disorientation, as though
such reports were the only correct and ‘‘true’’ evidence of Dr. Bassford’s
desires. They ignore and choose to discount all independent evidence of
Dr. Bassford’s expression of his desires on multiple occasions when he was
alert and functioning well. Logically, they cannot have the evidence to
support two such inconsistent notions, correct for purposes of demonstra-
ting undue influence and that his ‘‘true desires’’ were not to benefit his
wife, and on the other hand, that such delirium and reduced functioning is
evidence of his lack of testamentary capacity and capacity to revoke his trust.
5
See Exhibit 34, signed on April 26, 2012.
6
Exhibit 62, dated April 26, 2012.
7
While plaintiffs make much of the differences of opinion between the
two experts, Dr. Jay A. Lasser and Dr. Harry E. Morgan, about the meaning
of the word ‘‘pseudo-dementia,’’ the court finds the insistence on one expert’s
definition over the other to have no particular weight in these proceedings.
An expert is entitled to his definition as he uses it and it is that expert’s
use of the term that controls.
8
See notations on Exhibit D, with Dr. Bassford’s initials on all the cor-
rections.
9
The court has reviewed and notes the cases and statutes on which the
plaintiffs rely in support of their argument that this is an irrevocable trust.
Having determined the trust is revocable, the court does not review such
cases and law further.
10
Exhibit 93, Discharge Summary, Institute of Living, July 3, 2012, page 1.
11
Ibid., page 2.
12
Exhibit 93, Discharge note of July 3, 2012, Institute of Living, page 1.
13
See Exhibit 10 and the relevant articles set forth therein.
14
Each of them testified that they had known Dr. Bassford for more than
eighty years.
15
See Exhibit 89, signed by the Longs on June 25, 2012, before a notary.
16
Exhibit 75, Letter dated May 18, 2012, which contains the information
referenced sent by Attorney Willis to Henry and William Long.
17
Both Probate Court decisions are attached to the respective complaints
filed by the plaintiffs in these appeals, and as such, are judicial admissions.