Day v. Seblatnigg

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MARGARET E. DAY, COCONSERVATOR (ESTATE OF
SUSAN D. ELIA) v. RENEE F. SEBLATNIGG ET AL.
(AC 38734)
DiPentima, C. J., and Prescott and Flynn, Js.
Syllabus
The plaintiff, the coconservator of the estate of E, brought this action seeking
a declaratory judgment that a certain irrevocable trust was void ab initio
and unenforceable, and that any and all assets transferred from E’s estate
into the trust be returned to the estate. The Probate Court previously
had granted E’s request for the voluntary appointment of a conservator
of her person and estate. The defendant S, the former conservator of
E’s estate, had entered into an asset protection services agreement on
E’s behalf with an affiliate of the defendant F Co. Thereafter, the trust
was formed to hold E’s assets, which were transferred from E’s conserva-
torship estate to the trust. After S resigned, the plaintiff was appointed
coconservator of E’s estate for the limited purpose of matters relating
to E’s interest in the trust, and this action followed. The trial court
granted the plaintiff’s motion for summary judgment, declaring that the
trust was void ab initio and unenforceable, and ordering that the assets
that were transferred be returned to E’s estate. From the judgment
rendered thereon, F Co. appealed to this court. F Co. claimed, inter alia,
that the plaintiff had no standing pursuant to the conservatorship statute
(§ 45a-655) to initiate the present matter on behalf of E’s estate. Held:
1. The plaintiff had statutory standing to bring the declaratory judgment
action on behalf of E’s conservatorship estate; a conservator of the
estate has such power as is expressly or impliedly given to her pursuant
to § 45a-655, which provides that the conservator of the estate may
bring an action for and collect all debts due to the conserved person,
a conservator is not required to obtain Probate Court approval prior to
commencing an action on behalf of the ward if that power is a necessary
implication of § 45a-655 (a), which grants to conservators the necessary
power to commence litigation where such a course is necessarily implied
by a conservator’s duty to manage the ward’s affairs, the legislature has
not included language requiring Probate Court approval in § 45a-655 (a)
when discussing a conservator’s ability to initiate an action on behalf
of a conserved person, the power of conservators of the estate to initiate
an action on behalf of a conserved person has been broadly interpreted,
and, thus, although § 45a-655 (a) does not expressly provide that a
conservator may initiate a declaratory judgment action questioning the
validity of a trust created without the former conservator having
obtained Probate Court approval, such power is reasonably implied
from the statute and from case law.
2. F Co. could not prevail on its claim that the trial court erred in rendering
summary judgment in the absence of a necessary party, B Co., which
was based on its claim that B Co., as the sole trustee of the trust, held
legal title to the assets in the trust and, thus, had to be joined as a
necessary party to this action: no statute mandates the naming and
serving of a putative trustee, F Co. failed to show that the failure of the
plaintiff or the court to join B Co. as a party infringed on the due process
rights of B Co., which had knowledge of this action and chose not to
intervene, and in light of the prayer for relief, the issue before the trial
court concerned the validity of the trust and did not involve the trustee
protecting any wrongful interference with the trust’s assets, and, there-
fore, the presence of B Co., which did not have possession of the assets
of the trust, in this action involving the validity of the trust due to the
conservator’s failure to obtain Probate Court approval was not abso-
lutely required in order to assure a fair and equitable trial; moreover,
B Co.’s interests were aligned sufficiently with that of F Co., which as
the protector of the trust, had the duty to manage and the power to
remove the trustee under the terms of the trust, and the trial court
having determined that there was no genuine issue of material fact that
the trust was void ab initio, B Co. did not have an interest in a trust
that never lawfully existed and, thus, did not have power to transfer
the assets.
3. F Co.’s claim that the trial court erred when it concluded that E lacked
the ability to execute the trust while under a voluntary conservatorship
was unavailing: a voluntary conserved person does not retain control
over her estate, as the clear language of § 45a-655 gives control over
the estate to the conservator, and contrary to F Co.’s claim that the
2007 revision of the conservatorship statutes suggests that a voluntary
conserved person retains control over her estate, the amendment does
not alter the power and duties of the conservator but, rather, establishes
the method through which a conservator must carry out her statutory
duties, and to interpret the statutory revision to eliminate the responsibil-
ities a conservator has with respect to a conserved person’s estate could
effectively negate the powers and duties given to conservators in § 45a-
655, which would run afoul of the principle of statutory construction
that the legislature does not intend to enact meaningless provisions;
moreover, it would make meaningless the Probate Court’s granting of
an application for a voluntary conservator to permit a duality of control
over assets due to the confusion that can be sown when a conservator
and a voluntary conserved person take conflicting action with respect
to the same asset, especially given that a voluntarily conserved person
may seek to be released from the voluntary conservatorship; accordingly,
no genuine issue of material fact existed that E lacked the legal capacity
to form the trust, and the trial court, therefore, properly determined
that no genuine issue of material fact existed that the trust was void
ab initio.
Argued September 6—officially released December 11, 2018
Procedural History
Action for a judgment declaring, inter alia, a certain
trust void ab initio and unenforceable, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford, where the court, Heller, J., granted the
plaintiff’s motion for summary judgment and rendered
judgment thereon, from which the defendant First State
Fiduciaries, LLC, appealed to this court. Affirmed.
James G. Green, Jr., with whom were Jeffrey A.
Dorman and, on the brief, Robert J. Mauceri, for the
appellant (defendant First State Fiduciaries, LLC).
Bridgitte E. Mott, with whom was Richard E. Castig-
lioni, for the appellee (plaintiff).
Opinion
FLYNN, J. The principal issue in this case is whether
a settlor of a revocable trust who is later under a volun-
tary conservatorship may, while under conservatorship,
acting on her own behalf, convert the trust to an irrevo-
cable trust without action by her conservator and with-
out her conservator obtaining Probate Court approval.
The defendant, First State Fiduciaries, LLC,1 appeals
from the judgment of the Superior Court granting the
motion of the plaintiff, Margaret E. Day, coconservator
of the estate of Susan D. Elia, for summary judgment
and declaring that the Susan D. Elia Irrevocable Trust
dated September 15, 2011 (Delaware irrevocable trust)
was void ab initio and unenforceable, and that all trans-
fers of assets from Elia’s conservatorship estate to the
Delaware irrevocable trust or its wholly owned limited
liability company, Peace at Last, LLC, were unautho-
rized and improper and ordering that the assets from
Elia’s conservatorship estate that were transferred to
the Delaware irrevocable trust to Peace at Last, LLC,2
shall be immediately returned to Elia’s conservator-
ship estate.
On appeal, the defendant claims that the court erred
in granting the plaintiff’s motion for summary judgment
in the absence of an indispensable party, Bryn Mawr
Trust Company of Delaware (Bryn Mawr).3 We con-
clude that the court properly determined that Elia could
not lawfully replace the Connecticut revocable trust
with the Delaware irrevocable trust while under a con-
servatorship. We also conclude that the court properly
determined that the former conservator of Elia’s estate,
Renee F. Seblatnigg, could not transfer the assets of
the conservatorship estate to the Delaware irrevocable
trust and that this transfer was void ab initio. Finally,
we conclude that Bryn Mawr was not an indispensable
party. We affirm the judgment of the trial court.
On January 18, 2014, the plaintiff initiated the present
action in which she sought a declaratory judgment that
(1) the Delaware irrevocable trust was void ab initio
and unenforceable; and (2) any and all assets trans-
ferred from Elia’s estate to the Delaware Irrevocable
Trust or to an entity owned by the Delaware Irrevocable
Trust be returned to the estate.4 The following proce-
dural history relates to the issues now on appeal. On
February 26, 2015, the plaintiff moved for summary
judgment.
In its memorandum of decision, the Superior Court
set forth the following undisputed material facts. ‘‘Elia
is seventy-one years old. She suffers from advanced
Parkinson’s disease and lung cancer. In June, 2011, Elia
applied to the Greenwich Probate Court for the volun-
tary appointment of a conservator of her person and
her estate. Following a June 28, 2011 hearing in the
Greenwich Probate Court, at which the court, Hopper,
J., saw Elia in person, heard her reason for seeking
voluntary representation, and explained to her that
appointing a conservator as requested would subject
her and her property to the authority of the conservator,
the court found that Elia resided or had domicile in the
Greenwich Probate District, that the court had jurisdic-
tion, that Elia had requested the appointment of a con-
servator of the person and the estate, and that the
proposed conservators had accepted the position of
trust. The Greenwich Probate Court accordingly
granted Elia’s application for voluntary representation.
By decree issued on June 28, 2011 . . . the court
appointed Seblatnigg the conservator of Elia’s estate
and Richard DiPaola . . . the conservator of Elia’s
person.
‘‘The June 28, 2011 decree provided that Seblatnigg,
as the conservator of Elia’s estate, had the power to
manage the estate, to apply estate funds to support
Elia, to pay her debts, and to collect debts due to her.
At the time of Seblatnigg’s appointment as conservator
of Elia’s estate, Elia owned or held an equitable interest
in cash and securities valued in excess of $6,000,000,
including those held in the Susan D. Elia Revocable
Trust, a 2007 revocable trust governed by Connecticut
law (the Connecticut revocable trust).
‘‘In September, 2011, Seblatnigg consulted with the
managers of First State Fiduciaries, [Attorney] Robert
Mauceri . . . and [Attorney] James Holder . . .
regarding the creation of an asset protection plan for
Elia. They recommended to Seblatnigg that Elia estab-
lish and fund a self-settled irrevocable Delaware asset
protection trust and a limited liability company, to be
owned by the trust, to hold her assets.
‘‘Seblatnigg, as conservator of Elia’s estate, entered
into an asset protection services agreement on Elia’s
behalf with First State Facilitators, LLC (First State
Facilitators), an affiliate of First State Fiduciaries, on
September 15, 2011. Seblatnigg, as conservator, also
signed a legal representation agreement on behalf of
Elia with Mauceri. On the same day, Seblatnigg met with
Elia and supervised her execution of the instrument
that created the Delaware irrevocable trust. The trust
instrument named Seblatnigg and Salvatore Mulia . . .
as the independent trustees of the Delaware irrevocable
trust and named First State Fiduciaries as the protector
of the Delaware irrevocable trust. Seblatnigg did not
seek or obtain the approval of the Greenwich Probate
Court to establish the Delaware irrevocable trust or to
advise Elia to execute the trust instrument.
‘‘A Delaware limited liability company, Peace at Last
. . . wholly owned by the Delaware irrevocable trust,
was formed on September 15, 2011, to hold Elia’s assets.
Beginning on September 20, 2011, Seblatnigg directed
the transfer of more than $6,000,000 in cash and securi-
ties from Elia’s conservatorship estate and the Connect-
icut revocable trust to the Delaware irrevocable trust
or to Peace at Last. Seblatnigg did not seek or obtain
the approval of the Greenwich Probate Court before she
transferred the assets to the [Susan D. Elia Irrevocable
Trust dated September 15, 2011 (Delaware irrevocable
trust)] . . . or to Peace at Last.
‘‘Seblatnigg resigned as the conservator of Elia’s
estate on April 5, 2013. The Greenwich Probate Court
accepted Seblatnigg’s resignation on May 21, 2013, sub-
ject to the allowance of her final account, and appointed
Mulia the successor conservator of Elia’s estate.
‘‘The Greenwich Probate Court appointed the plain-
tiff the coconservator of Elia’s person on May 23, 2013.
On January 9, 2014, at Elia’s request, the Greenwich
Probate Court issued a decree . . . naming the plain-
tiff the coconservator of Elia’s estate for the limited
purpose of any matters relating to Elia’s interest in
the Delaware irrevocable trust, because Mulia had a
possible conflict of interest.
‘‘In March 2014, shortly after the plaintiff commenced
this declaratory judgment action, First State Fiduciaries
filed a petition in the Delaware Court of Chancery (Dela-
ware action) in which it sought an order compelling
Morgan Stanley Smith Barney, LLC (Morgan Stanley),
which held the assets of the Delaware irrevocable trust,
to transfer the trust assets to the purported new sole
trustee, the Bryn Mawr Trust Company of Delaware
. . . . Morgan Stanley filed an answer and counterpeti-
tion in the nature of an interpleader, in which it main-
tained that it had no interest in the trust assets, on May
19, 2014.
‘‘On May 16, 2014, the plaintiff moved to intervene
in the Delaware action. The motion to intervene was
granted on June 10, 2014. The plaintiff filed a response,
counterclaim, and third-party complaint in the Dela-
ware action that day. On January 29, 2015, the plaintiff
moved for a protective order and to stay discovery
in the Delaware action. Morgan Stanley joined in the
plaintiff’s motion to stay the Delaware action.
‘‘On February 13, 2015, a special master in the Dela-
ware action recommended that the court deny First
State Fiduciaries’ motion to compel and grant the plain-
tiff’s motion for a protective order and a stay of any
discovery. In a letter to counsel dated August 4, 2015,
the special master indicated that she was recommend-
ing that the court stay the Delaware action in its
entirety.’’ (Footnotes omitted.)
The court granted the plaintiff’s motion for summary
judgment. The court determined that ‘‘[n]o genuine
issue of material fact exists as to whether Elia was
under a voluntary conservatorship at the time she exe-
cuted the instrument creating the Delaware irrevocable
trust. While Seblatnigg, as conservator, could have cre-
ated and funded the Delaware irrevocable trust with
the Greenwich Probate Court’s approval, she chose
instead to do so without the court’s authorization’’ in
violation of General Statutes § 45a-655 (e).5 The court
ruled that ‘‘[u]ntil such time [as Elia sought and obtained
release from the conservatorship pursuant to General
Statutes § 45a-647] . . . the conservator, as the agent
of the Probate Court [had] the exclusive authority to
manage the affairs of the conserved person.’’ The court
concluded that the Delaware irrevocable trust was void
ab initio. In addressing an issue of joinder raised by
the defendant in its memorandum in opposition to the
plaintiff’s motion for summary judgment, the court con-
cluded that Bryn Mawr was not a necessary party to
the action. This appeal followed.
We first set forth the relevant standards that generally
govern our review of a court’s decision to grant a motion
for summary judgment. ‘‘The standards governing our
review of a trial court’s decision to grant a motion for
summary judgment are well established. Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . A material fact . . . [is] a fact which will
make a difference in the result of the case. . . . Finally,
the scope of our review of the trial court’s decision to
grant the plaintiff’s motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Romprey
v. Safeco Ins. Co. of America, 310 Conn. 304, 312–13,
77 A.3d 726, 731 (2013). Having set forth the relevant
standard of review, we now turn to the defendant’s
claims on appeal.
I
We begin by addressing the defendant’s jurisdictional
claim that the court improperly concluded that the
plaintiff had standing to commence this declaratory
judgment action on behalf of Elia’s conservatorship
estate.6 ‘‘The issue of standing implicates the trial
court’s subject matter jurisdiction and therefore pre-
sents a threshold issue for our determination.’’ New
Hartford v. Connecticut Resources Recovery Authority,
291 Conn. 511, 518, 970 A.2d 583 (2009). The defendant
argues that the plaintiff lacks standing to bring the
action because she failed to obtain Probate Court
approval to initiate the action pursuant to General Stat-
utes § 45a-655 (a). We disagree.
‘‘[I]t is the burden of the party who seeks the exercise
of jurisdiction in his favor . . . clearly to allege facts
demonstrating that he is a proper party to invoke judi-
cial resolution of the dispute. . . . It is well established
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged. . . . Because a determination
regarding the trial court’s subject matter jurisdiction
raises a question of law, our review is plenary. . . .
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury [that he or she has suffered or is likely to
suffer]. Similarly, standing exists to attempt to vindicate
arguably protected interests. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
determining [classical] aggrievement encompasses a
well-settled twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Citations omitted; internal quotation marks omitted.)
Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213–15, 982
A.2d 1053 (2009).
At issue is the plaintiff’s standing to initiate the under-
lying action. The plaintiff was not the initial conservator
of Elia’s estate, but rather was appointed by the Probate
Court in January, 2014, as coconservator of Elia’s estate
‘‘for the limited purpose’’ of matters relating to Elia’s
interest in the Delaware irrevocable trust. The defen-
dant contends that the plaintiff lacks standing because
she failed to obtain Probate Court approval to initiate
the declaratory judgment action and that § 45a-655 (a)
authorizes only debt collection actions, which the
declaratory judgment action is not. We disagree.
The defendant misinterprets the language of § 45a-
655 (a). That section permits a conservator of the estate
to sue on behalf of the conserved person. General Stat-
utes § 45a-655 (a) lists the duties of the conservator of
the estate, whether voluntarily or involuntarily
appointed, and provides that a conservator of the estate
‘‘shall manage all the estate . . . and may sue for and
collect all debts due to the conserved person.’’ ‘‘Prop-
erty management’’ is defined in General Statutes § 45a-
644 (j) as ‘‘actions to (1) obtain, administer, manage,
protect and dispose of real and personal property, intan-
gible property, business property, benefits and income,
and (2) deal with financial affairs.’’ The plaintiff was
specifically appointed to deal with matters relating to
Elia’s interest in the Delaware irrevocable trust.
A conservator is not required to obtain Probate Court
approval prior to commencing suit on behalf of the
ward if that power is a necessary implication of § 45a-
655 (a). See Doyle v. Reardon, 11 Conn. App. 297, 527
A.2d 260 (1987). In Doyle, this court held that Probate
Court permission was not necessary to engage the ser-
vices of an attorney to investigate a conveyance of real
estate from the ward to the plaintiff prior to the appoint-
ment of an involuntary conservator. Id., 302–303. The
court interpreted General Statutes § 45-75, now § 45a-
655, and prior case law, to mean that Probate Court
approval is not required in order for the conservator
to bring suit, but rather, if ‘‘prior permission to bring
suit is not sought, the conservator proceeds at his peril
in terms of recouping the expenses of such a suit, in
the event he engages the services of an attorney to
prosecute the action.’’ Id., 301. Accordingly, we read
Doyle to mean that failure to obtain Probate Court
approval may affect a conservator’s ability to recoup
litigation expenses, but does not impact her ability to
initiate suit in that or analogous matters unless prior
approval is specifically required by statute.
Consistent with our decision in Doyle, we construe
the statutory scheme adopted by our legislature in
enacting § 45a-655 (a) to grant to conservators the nec-
essary power to commence litigation where such a
course is necessarily implied by a conservator’s duty
to manage the ward’s affairs. That statutory scheme
sets forth certain actions where prior Probate Court
approval is required before certain actions are permit-
ted by a conservator. For example, in § 45a-655 (e),
the legislature clearly provides that conservators must
obtain Probate Court approval prior to taking certain
actions. That section provides: ‘‘[u]pon application of
a conservator of the estate, after hearing with notice
. . . the court may authorize the conservator to make
gifts or other transfers of income and principal from
the estate of the conserved person’’ provided certain
factors are satisfied. (Emphasis added.) General Stat-
utes § 45a-655 (e). The legislature clearly knew how to
require the conservator to obtain prior Probate Court
approval when it wanted to do so. Significantly, the
legislature did not include language requiring Probate
Court approval in § 45a-655 (a) when discussing a con-
servator’s ability to initiate suit on behalf of a conserved
person. ‘‘Where a statute, with reference to one subject
contains a given provision, the omission of such provi-
sion from a similar statute concerning a related subject
. . . is significant to show that a different intention
existed. . . . That tenet of statutory construction is
well grounded because [t]he General Assembly is
always presumed to know all the existing statutes and
the effect that its action or non-action will have upon
any one of them.’’ (Internal quotation marks omitted.)
Hatt v. Burlington Coat Factory, 263 Conn. 279, 310,
819 A.2d 260 (2003).
We conclude that the plaintiff has statutory standing
to bring the declaratory judgment action because a con-
servator of the estate has such power as is ‘‘expressly
or impliedly given to [her] by [§ 45a-655].’’ (Internal
quotation marks omitted.) Luster v. Luster, 128 Conn.
App. 259, 270, 17 A.3d 1068, cert. granted, 302 Conn.
904, 23 A.3d 1243 (2011) (appeal dismissed April 12,
2012). The power of conservators of the estate to initiate
suit on behalf of a conserved person has been broadly
interpreted. ‘‘In Connecticut, there are many examples
in our case law of conservators bringing suit on behalf
of their wards to protect their interests.’’ Id., 272–73.
Although § 45a-655 (a) does not expressly provide that a
conservator may initiate a declaratory judgment action
questioning the validity of a trust created by a volunta-
rily conserved person and created without the former
conservator having obtained Probate Court approval,
such power is reasonably implied from § 45-655 (a) and
from case law. See Doyle v. Reardon, supra, 11 Conn.
App. 297.
II
We next turn to the defendant’s claim that the court
erred in rendering summary judgment in the absence
of a necessary party, Bryn Mawr, the putative trustee
of the Delaware irrevocable trust.7 We disagree.
In its opposition to the plaintiff’s motion for summary
judgment, the defendant argued that Bryn Mawr, as
trustee of the Delaware irrevocable trust, was a neces-
sary party. In its memorandum of decision, the court
rejected this argument and reasoned that Bryn Mawr
is not a necessary party to the court’s determination
of whether the Delaware irrevocable trust was void
ab initio.
‘‘Necessary parties . . . are those [p]ersons having
an interest in the controversy, and who ought to be
made parties, in order that the court may act on that
rule which requires it to decide on, and finally determine
the entire controversy, and do complete justice, by
adjusting all the rights involved in it. . . . [B]ut if their
interests are separable from those of the parties before
the court, so that the court can proceed to a decree,
and do complete and final justice, without affecting
other persons not before the court, the latter are not
indispensable parties. . . . A party is deemed neces-
sary if its presence is absolutely required in order to
assure a fair and equitable trial. . . . The decision
whether to grant a motion for the addition of a party to
pending legal proceedings rests generally in the sound
discretion of the trial court.’’ (Citations omitted; internal
quotation marks omitted.) In re Devon B., 264 Conn.
572, 579–81, 825 A.2d 127 (2003).
‘‘It is well settled that the failure to join an indispens-
able party does not deprive a trial court of subject
matter jurisdiction. See General Statutes § 52-108 and
Practice Book §§ 9-18 . . . . [T]he failure to join an
indispensable party results in a jurisdictional defect
only if a statute mandates the naming and serving of
[a particular] party. . . . Conversely, when a party is
indispensable but is not required by statute to be made
a party, the [trial] court’s subject matter jurisdiction is
not implicated and dismissal is not required. . . .
Although a court may refuse to proceed with litigation
if a claim cannot properly be adjudicated without the
presence of those indispensable persons whose sub-
stantive rights and interests will be necessarily and
materially affected by its outcome, the absence of such
a party does not destroy jurisdiction.’’8 (Citations omit-
ted; emphasis in original; internal quotation marks omit-
ted.) General Linen Service Co. v. Cedar Park Inn &
Whirlpool Suites, 179 Conn. App. 527, 532–33, 180 A.3d
966 (2018).
The defendant argues that subject matter jurisdiction
is implicated and that the joinder of Bryn Mawr as a
necessary party is mandated because Bryn Mawr is the
current sole trustee of the Delaware irrevocable trust
and, as such, holds legal title to the assets in the trust.
The defendant contends that Bryn Mawr alone has the
power to transfer those assets out of the trust in the
event that this court affirms the trial court’s decision
that the Delaware irrevocable trust is void ab initio.
We first conclude that no statute mandates the nam-
ing and serving of a putative trustee and, accordingly,
joinder of Bryn Mawr is not so mandated by statute in
this case. Furthermore, the defendant has not shown
that the plaintiff’s or the court’s failure to join Bryn
Mawr as a party infringes on Bryn Mawr’s due process
rights. See Wells Fargo Bank, N.A. v. Treglia, 156 Conn.
App. 1, 16 n.6, 111 A.3d 524 (2015) (‘‘[j]oinder of a
necessary party is mandatory when that party’s due
process rights are implicated in the action’’). Bryn Mawr
is a party to the Delaware action during which the
Connecticut litigation was discussed, and the Delaware
proceedings were stayed pending a final judgment in
this Connecticut action. Bryn Mawr, therefore, had
knowledge of the Connecticut litigation and chose not
to intervene. A substitute trustee of an irrevocable trust
that was void at its creation has not been deprived of
due process rights by failure to be joined as a party.
Furthermore, the defendant, First State Fiduciaries,
which is a party because of its common interest, can
adequately represent Bryn Mawr’s interest in this
action.
We next determine, in the absence of a statute man-
dating joinder, whether the trial court can ‘‘proceed to
a decree, and do complete and final justice’’ without
Bryn Mawr joined in the declaratory judgment action.
In re Devon B., supra, 264 Conn. 579-81. The following
law on trustees is informative. ‘‘[A]s a general rule, the
trustee is a proper person to sue or be sued on behalf
of a trust. . . . The trustee is the legal owner of trust
property, and as such the trustee is the proper party to
actions affecting title to trust property. Thus, a trustee
is a necessary party to any suit or proceeding involving
a disposition of trust property or funds.’’ (Citations
omitted; internal quotation marks omitted.) Bank of
New York v. Bell, 142 Conn. App. 125, 133 n.5, 63 A.3d
1026, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013),
and cert. denied, 310 Conn. 901, 75 A.3d 31 (2013). ‘‘The
trustee has a title (generally legal title) to the trust
property, usually has its possession and a right to con-
tinue in possession, and almost always has all the pow-
ers of management and control which are necessary to
make the trust property productive and safe.’’ (Internal
quotation marks omitted.) Naier v. Beckenstein, 131
Conn. App. 638, 646, 27 A.3d 104, cert. denied, 303 Conn.
910, 32 A.3d 963 (2011).
The undisputed evidence in this case demonstrates
that a question existed in the Delaware action as to
whether Bryn Mawr properly was appointed trustee of
the Delaware irrevocable trust. The defendant filed a
petition in the Delaware action seeking an order com-
pelling Morgan Stanley to transfer the trust assets to
Bryn Mawr. Morgan Stanley filed an interpleader in the
Delaware action, in which Morgan Stanley stated that
it had not transferred the assets to Bryn Mawr because
the defendant had not produced evidence sufficient to
establish that Bryn Mawr was the duly appointed trustee
of the trust. The Delaware Court of Chancery appointed
a special master to oversee the assets of the Delaware
trust, and the special master was given authority to
execute the documents necessary to transfer the trust
assets to the Wilmington Trust Company, the new custo-
dian. The defendant’s counsel conceded at oral argu-
ment before this court that the possession of the assets
at issue is currently with the Delaware Chancery Court,
which has stayed the action before it, pending a final
judgment in this action.
In her prayer for relief, the plaintiff sought a declara-
tory judgment that the Delaware irrevocable trust be
declared void ab initio and sought the relief that ‘‘any
and all assets transferred to the trust or any entity
owned by the trust be returned to the conservatorship
estate from whence it came.’’ The issue before the trial
court did not involve the trustee protecting any wrong-
ful interference with the trust assets, rather the issue
before the court was the validity of the trust. The pres-
ence of Bryn Mawr, which entity does not now have
possession of the trust assets, in an action involving
the validity of the trust due to the conservator’s failure
to obtain Probate Court approval, is not absolutely
required in order to assure a fair and equitable trial.
Furthermore, Bryn Mawr’s interests are aligned suffi-
ciently with that of the defendant, which, as the protec-
tor of the Delaware irrevocable trust, had the duty to
manage and the power to remove the trustee under the
terms of the trust.
The trial court concluded, and we agree, that there
is no genuine issue of material fact that the Delaware
irrevocable trust was void ab initio. Bryn Mawr does
not have an interest in a trust that never lawfully existed,
and, accordingly, does not have the power to transfer
the assets, which are not currently in its possession.
Accordingly, the court properly determined that there
was no genuine issue of material fact that Bryn Mawr
was not a necessary party in this action.
III
The defendant next claims that the court erred when
it concluded that Elia lacked the ability to execute the
Delaware irrevocable trust while under a voluntary con-
servatorship. We disagree.
The court determined that there was no genuine issue
of material fact that Elia was under a voluntary conser-
vatorship at the time she executed the instrument,
which identified her as the grantor, creating the Dela-
ware irrevocable trust.9 The court determined, as a mat-
ter of law, that Elia did not have the capacity to form the
Delaware irrevocable trust because she was voluntarily
conserved at the time.
The issue before us concerns a voluntary conserva-
torship of the estate. Unlike an involuntary conservator-
ship wherein the Probate Court must find that the
respondent is ‘‘incapable of managing his or her affairs
or is incapable of caring for him or herself’’; General
Statutes § 45a-644 (e); the Probate Court, when granting
an application for a voluntary conservatorship, does not
make a finding that the voluntarily conserved person is
incapable of managing her affairs. See General Statutes
§ 45a-644 (g).
A ‘‘conservator of the estate’’ is defined in § 45a-644
(a) as ‘‘a person . . . appointed by the Court of Probate
. . . to supervise the financial affairs of a person found
to be incapable of managing his or her own affairs or
of a person who voluntarily asks the Court of Probate
for the appointment of a conservator of the estate.’’
The statutory duties of a conservator of the estate,
whether voluntarily or involuntarily appointed, ‘‘are
clearly defined in General Statutes § 45a-655 . . . A
conservator of the estate shall manage all the estate
and apply so much of the net income thereof, and, if
necessary, any part of the principal of the property,
which is required to support the ward and those mem-
bers of the ward’s family whom he or she has the legal
duty to support and to pay the ward’s debts . . . .’’
(Emphasis omitted; footnote omitted; internal quota-
tion marks omitted.) Jewish Home for the Elderly of
Fairfield County, Inc. v. Cantore, 257 Conn. 531, 539–
40, 778 A.2d 93 (2001). ‘‘In general terms, a conservator
of the estate is required to manage the conservatee’s
estate for the benefit of the conservatee . . . .’’ Gross
v. Rell, 304 Conn. 234, 250–51, 40 A.3d 240 (2012). ‘‘A
conservator has an implied power to enter into con-
tracts on behalf of [her] ward’s estate where such con-
tracts involve the exercise of the express or implied
powers which are granted to the conservator by stat-
ute.’’ Elmendorf v. Poprocki, 155 Conn. 115, 118, 230
A.2d 1 (1967).
The conservatorship statutes have been revised in
2007 to reflect that a conservator is to manage an estate
in the least restrictive means possible. Section 45a-655
(a), which lists the duties of voluntary and involuntary
conservators of the estate, provides that: ‘‘The conser-
vator shall use the least restrictive means of interven-
tion in the exercise of the conservator’s duties and
authority.’’ Section § 45a-644 (k) defines ‘‘least restric-
tive means of intervention’’ as a ‘‘means of intervention
for a conserved person that is sufficient to provide,
within the resources available to the conserved person
either from the conserved person’s own estate or from
private or public assistance, for a conserved person’s
personal needs or property management while
affording the conserved person the greatest amount
of independence and self-determination.’’ Our Supreme
Court stated in Kortner v. Martise, 312 Conn. 1, 57, 91
A.3d 412 (2014), that ‘‘[t]he current statutory scheme
governing conservatorships and its historical develop-
ment make it abundantly clear that the legislature
intends for conserved persons to retain as much deci-
sion-making authority and independence as possible,
and that a conservator’s role should be limited so as
to accomplish that objective. Indeed, the fact that a
conservator is appointed does not mean that the con-
served person loses all of his or her civil rights. Rather,
the conservator is to manage the conserved person’s
affairs through the least restrictive means possible.’’
However, the 2007 revision does not mean, as the
defendant suggests, that a voluntarily conserved person
retains control over her estate. The statutory amend-
ment, which requires that a conservator carry out her
duties using the least restrictive means possible, does
not alter the power and duties of a conservator. Rather,
it establishes the method through which a conservator
must carry out her statutory duties. To interpret this
statutory revision to eliminate the responsibilities a con-
servator has with respect to a conserved person’s estate
could effectively negate the powers and duties given
to conservators in § 45a-655. This would run afoul of the
principle of statutory construction that the legislature
does not intend to enact meaningless provisions. See
Lopa v. Brinker International, Inc., 296 Conn. 426,
433–34, 994 A.2d 1265 (2010).
The clear language of § 45a-655 gives control over
the estate to the conservator, and provides that the
‘‘conservator shall manage all the estate.’’ General Stat-
utes § 45a-655. It is inconsistent with the language of
§ 45a-655 and the filing of an application for a voluntary
conservatorship pursuant to General Statutes § 45a-646,
for an involuntarily conserved person to retain control
over the estate. Such a result would make meaningless
the words of the statutes. ‘‘It is a basic tenet of statutory
construction that the legislature [does] not intend to
enact meaningless provisions. . . . [I]n construing
statutes, we presume that there is a purpose behind
every sentence, clause, or phrase used in an act and
that no part of a statute is superfluous. . . . Because
[e]very word and phrase [of a statute] is presumed to
have meaning . . . [a statute] must be construed, if
possible, such that no clause, sentence or word shall be
superfluous, void or insignificant.’’ (Internal quotation
marks omitted.) Id., 433. ‘‘Because no finding of inca-
pacity is reached when applications for voluntary con-
servatorships are granted, and because the enabling
statute is silent, it is not clear to what extent persons so
represented remain legally capable to contract, convey
title, or have charge of their persons. Retention of legal
capacities of this kind would appear inconsistent with
the purposes of voluntary representation.’’ R. Folsom &
G. Wilhelm, Connecticut Estates Practice Series: Inca-
pacity, Powers of Attorney & Adoption in Connecticut
(3d Ed. 2018) § 2:8, p. 129. Consistent with this notion,
§ 45a-646 provides, in relevant part, that the court, upon
hearing a respondent’s application for a voluntary con-
servatorship, is to explain ‘‘to the respondent that grant-
ing the petition will subject the respondent or
respondent’s property, as the case may be, to the author-
ity of the conservator . . . .’’
In contrast to an involuntary conservatorship, a vol-
untarily conserved person may seek to be released from
the voluntarily conservatorship, thereby regaining con-
trol of her estate. General Statutes § 45a-647 provides:
‘‘Any person who is under voluntary representation as
provided by section 45a-646 shall be released from vol-
untary representation upon giving thirty days’ written
notice to the Court of Probate.’’ Accordingly, a person
voluntarily may file an application to have a conservator
control her estate; see General Statutes § 45a-646; and
a voluntarily conserved person may also seek to regain
control of her estate. See General Statutes § 45a-647.
It would make meaningless the Probate Court’s granting
of an application for a voluntary conservator to permit
a duality of control over assets due to the confusion
that can be sown when a conservator and a voluntarily
conserved person take conflicting action with respect
to the same asset. Section 45a-647 makes such conflict
unnecessary by permitting a voluntarily conserved per-
son to be released from voluntary representation by
giving thirty days written notice; it contemplates a legal
procedure that would remove a conservator at the
option of the person conserved, thereby avoiding poten-
tial conflicts between an action taken by a conservator
and an opposing action taken by a voluntarily con-
served person.
Because a voluntarily conserved person does not
retain control over her estate, no genuine issue of mate-
rial fact existed that Elia lacked the legal capacity to
form the Delaware irrevocable trust. Accordingly, we
conclude that the court properly determined that no
genuine issue of material fact existed that the Delaware
irrevocable trust was void ab initio.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint also named as defendants Renee F. Seblatnigg, sole inde-
pendent trustee and former conservator of the Susan D. Elia Irrevocable
Trust dated September 15, 2011; Edward E. Pratesi; Harry D. Lewis; Susan
D. Elia; Marc W. Elia, as guardian of minor children Alden H. Elia, Ryder
C. Elia, and Schuyler H. Elia; Christine E. Elia, as guardian of minor child
Ennio Barry Simon; Attorney General George Jepsen; Sarah Wilbur Day;
Matthew Lewis Striplin; Samuel Bowden Striplin; and Suzanne Palazzi Day.
The claims against Seblatnigg, Lewis and Pratesi were withdrawn. The court
granted the motions for default as to Marc Elia, Matthew Striplin, Samuel
Striplin, Sarah Day, and Suzanne Day. First State Fiduciaries, LLC, alone
filed the present appeal. Accordingly, we will refer to First State Fiduciaries,
LLC, as the defendant.
2
By agreement of the parties and with the approval of the Delaware Court
of Chancery, these assets were transferred to an account at the Wilmington
Trust Company.
3
The defendant, in its ‘‘Memorandum in Opposition to Plaintiff’s Motion
for Summary Judgment,’’ raised for the first time the issue that Bryn Mawr
was not joined in the action and is a necessary party. On September 3,
2015, the defendant filed a motion to strike arguing that Bryn Mawr was a
necessary party, which motion was not ruled on by the court. In its memoran-
dum of decision on the plaintiff’s motion for summary judgment, the court
addressed the issue of joinder.
4
The court ordered that the assets that were transferred to the Delaware
irrevocable trust be returned to Elia’s conservatorship estate. No claim was
made on appeal that the assets should be returned to the Connecticut
revocable trust rather than to Elia’s conservatorship estate.
5
General Statutes § 45a-655 (e) provides in relevant part: ‘‘Upon applica-
tion of a conservator of the estate, after hearing with notice to the Commis-
sioner of Administrative Services, the Commissioner of Social Services and
to all parties who may have an interest as determined by the court, the
court may authorize the conservator to make gifts or other transfers of
income and principal from the estate of the conserved person in such
amounts and in such form, outright or in trust, whether to an existing trust
or a court-approved trust created by the conservator, as the court orders
to or for the benefit of individuals, including the conserved person, and to
or for the benefit of charities, trusts or other institutions . . . . Such gifts
or transfers shall be authorized only if the court finds that . . . (3) the
estate of the conserved person and any proposed trust of which the con-
served person is a beneficiary is more than sufficient to carry out the duties
of the conservator as set forth in subsections (a) and (b) of this section,
both for the present and foreseeable future, including due provision for the
continuing proper care, comfort and maintenance of such conserved person
in accordance with such conserved person’s established standard of living
and for the support of persons the conserved person is legally obligated to
support . . . . The court shall give consideration to the following: (A) The
medical condition of the conserved person, including the prospect of restora-
tion to capacity; (B) the size of the conserved person’s estate; (C) the
provisions which, in the judgment of the court, such conserved person would
have made if such conserved person had been capable, for minimization of
income and estate taxes consistent with proper estate planning; and (D) in
the case of a trust, whether the trust should be revocable or irrevocable,
existing or created by the conservator and court approved.’’
6
The defendant raised the issue of standing in its motion in opposition
to the plaintiff’s motion for summary judgment, and the court addressed
that issue in its memorandum of decision. The defendant raised the issue
of standing before this court for the first time in its reply brief. Although
arguments raised for the first time in reply briefs are disfavored, we will
review the issue because it implicates subject matter jurisdiction. See Peters
v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005) (issues
of subject matter jurisdiction may be raised at any time).
7
The defendant raised for the first time at oral argument before this court
the issue that Peace at Last, LLC, is a necessary party. The defendant has
not directed us to any statute, nor are we aware of any, that mandates that
a company that had title to a trust asset in a trust declared to be void ab
initio, is a necessary party to a declaratory judgment action such as this
one. Because Peace at Last, LLC, does not have a statutory right to intervene,
subject matter jurisdiction is not implicated, and the claim may not be raised
at any time. See General Linen Service Co. v. Cedar Park Inn & Whirlpool
Suites, 179 Conn. App. 527, 532–33, 180 A.3d 966 (2018) (failure to join
indispensable party results in jurisdictional defect only if statute mandates
naming and serving of particular party). Because the issue was raised for
the first time during oral argument and does not implicate subject matter
jurisdiction, we conclude that the issue has not been properly briefed and
decline to consider it. It is well established that arguments raised for the first
time at oral argument are not reviewable. See Alexandre v. Commissioner
of Revenue Services, 300 Conn. 566, 586 n.17, 22 A.3d 518 (2011).
8
‘‘In the past, there had been a distinction between ‘necessary’ and ‘indis-
pensable’ parties. See Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.
Ed. 158 (1855) (defining both terms). Over time, however, this distinction
has become less pronounced; see Sturman v. Socha, 191 Conn. 1, 6, 463
A.2d 527 (1983) (recognizing that misleading nature of terms ‘has resulted
in a blurring of the distinction typically drawn between them’); and provi-
sions of our Practice Book and General Statutes currently refer only to
necessary parties. See, e.g., Practice Book §§ 9-6 and 9-24; General Statutes
§§ 8-8 (f) and 12-638n.’’ In re Devon B., supra, 264 Conn. 580 n.12.
9
The defendant argues that a genuine issue of material fact exists as to
whether Seblatnigg created the Delaware irrevocable trust. The defendant
contends that the trust indenture establishes that Elia signed the trust as
grantor, thereby creating the Delaware irrevocable trust. The defendant
directed our attention to the affidavits of Seblatnigg and Robert Mauceri,
both of whom were with Elia when she executed the Delaware irrevocable
trust. Seblatnigg stated in her affidavit that Elia created the Delaware irrevo-
cable trust, and Mauceri explained that Elia ‘‘exhibited complete comprehen-
sion and subtle wit.’’
The court concluded that there was ‘‘no genuine issue of material fact as
to whether Elia was under a voluntary conservatorship at the time she
executed the instrument creating the Delaware irrevocable trust.’’ Although
not a model of clarity, the court determined that ‘‘Seblatnigg, as conservator,
could have created and funded the Delaware irrevocable trust with the
Greenwich Probate Court’s approval, she chose instead to do so without
the court’s authorization.’’ The court clarified that the use of the term ‘‘cre-
ated,’’ with respect to Seblatnigg was referencing an asset protection services
agreement with First State Facilitators and a legal representation agreement
with Mauceri, on Elia’s behalf. It is important to note that the court’s principal
conclusion that unless Elia sought and obtained release from the conserva-
torship pursuant to § 45a-647, the conservator, as the agent of the Probate
Court, had exclusive authority to manage Elia’s affairs.
The court determined that there was no genuine issue of material fact
that Elia executed the instrument creating the Delaware irrevocable trust,
and the defendant has not directed us to any evidence in the record, nor
are we aware of any that creates an issue of material fact as to this issue.
10
The defendant also argues that a genuine issue of material fact exists
as to whether Seblatnigg was acting in her role as conservator of the estate,
or as cotrustee of the Connecticut revocable trust, when she transferred
assets from the Connecticut revocable trust to the Delaware irrevocable
trust, and whether conservatorship assets were transferred into the new
Delaware trust. This is not a material fact. The defendant acknowledges
that Elia signed the trust as grantor and, thereby, created the Delaware
irrevocable trust. However, a voluntarily conserved person does not retain
the power to manage his or her own property unless the conserved person
terminates the voluntary conservatorship pursuant to § 45a-647.
The defendant also claims that the court erred when it held that assets
legally titled to the Connecticut revocable trust form part of the conservator-
ship estate. The defendant’s claim regarding the role Seblatnigg acted under
implicates the issue before the trial court of whether, pursuant to § 45a-
655, Seblatnigg was required to obtain Probate Court approval for the cre-
ation and transferring of assets to the Delaware irrevocable trust. Whether
Seblatnigg was required to obtain Probate Court approval is not a question
we need to resolve. In the absence of Probate Court approval, whether
required or not, what remains is a voluntarily conserved individual executing
the Delaware irrevocable trust instrument. As a result, the trust that the
conserved person created is void ab initio, and the remaining issues need
not be resolved on appeal.