In re Probate Appeal of Buckingham

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IN RE PROBATE APPEAL OF SHERYL
BUCKINGHAM ET AL.
(AC 42548)
DiPentima, C. J., and Elgo and Devlin, Js.
Syllabus
The plaintiffs appealed to the trial court from the decree of the Probate
Court dismissing their action contesting the will of the defendant’s
decedent, which had named the parties as beneficiaries and the defen-
dant as the executor of the decedent’s estate. Following the decedent’s
death, the defendant filed with the Probate Court a petition to admit
the will to probate. After the deadline to object to the admission of the
will had passed without any objection having been filed, the Probate
Court issued a decree admitting the will to probate. The plaintiffs, who
had been served with notice by the Probate Court, did not appeal from
that decree; however, 137 days after it issued, they filed two motions
with the Probate Court, which sought, in effect, the decedent’s medical
records to contest the will. In response, the defendant filed a motion
to dismiss the plaintiffs’ will contest for lack of subject matter jurisdic-
tion. The Probate Court thereafter issued a decree dismissing the action,
from which the plaintiffs appealed to the trial court, alleging claims of
fraud. The trial court subsequently granted the defendant’s motion to
dismiss and rendered judgment dismissing the appeal, concluding that
it lacked subject matter jurisdiction because, inter alia, the plaintiffs
lacked statutory authority to raise their claims outside of a timely appeal
from the original decree admitting the will to probate. On the plaintiffs’
appeal to this court, held that the trial court properly dismissed the
probate appeal for lack of subject matter jurisdiction, as that court had
no statutory authority to set aside the decree of the Probate Court
admitting the decedent’s will to probate, and, therefore, it lacked jurisdic-
tion to hear the plaintiffs’ claims of fraud, which directly attacked the
decree: because, in probate appeals, the trial court exercises the same
authority as the Probate Court, and the Probate Court lacked subject
matter jurisdiction to set aside its prior probate decree admitting the
decedent’s will to probate, even for fraud, as there was no statutory
authority to do so, the trial court, likewise, lacked subject matter jurisdic-
tion to set aside the decree; moreover, contrary to the plaintiffs’ con-
tention that the trial court had jurisdiction to set aside the probate
decree because, pursuant to statute (§ 45a-24), that court possesses
subject matter jurisdiction in will contests claiming fraud, the plaintiffs
instituted a separate action in the Probate Court seeking to set aside
the prior decree admitting the will, which constituted a direct attack
on the decree over which the Probate Court lacked jurisdiction, even
in cases of fraud, and § 45a-24 permits only collateral attacks on probate
decrees, and, therefore, it did not provide the trial court with jurisdiction
in the circumstances of this case, as a direct challenge to a probate
decree based on fraud may be raised only by way of a separate equita-
ble action.
Argued January 23—officially released May 26, 2020
Procedural History
Appeal from the decree of the Probate Court for the
district of Housatonic dismissing the plaintiffs’ action
contesting the will of the defendant’s decedent, brought
to the Superior Court in the judicial district of Danbury,
where the court, Krumeich, J., granted the defendant’s
motion to dismiss and rendered judgment thereon, from
which the plaintiffs appealed to this court. Affirmed.
Michael A. D’Onofrio, with whom, on the brief, was
Dante R. Gallucci, for the appellants (plaintiffs).
John A. Farnsworth, with whom was Anthony E.
Monelli, for the appellee (defendant).
Opinion
DEVLIN, J. An unusual feature of Connecticut law
involves the role of the Superior Court in probate
appeals. In such appeals, the Superior Court sheds its
status as a constitutional court of general jurisdiction
and assumes the status of a statutory Probate Court of
limited jurisdiction. See In re Probate Appeal of Knott,
190 Conn. App. 56, 61, 209 A.3d 690 (2019); State v.
Gordon, 45 Conn. App. 490, 494–95, 696 A.2d 1034, cert.
granted on other grounds, 243 Conn. 911, 701 A.2d 336(1997) (appeal dismissed October 27, 1998). In the pres-
ent case, we are asked to decide whether, while adjudi-
cating a probate appeal, a Superior Court may entertain
a direct challenge to a probate decree admitting a will
to probate based on a claim of fraud. Because, in the
context of the present case, such claim of fraud may
be raised only by way of a separate equitable action
and not a probate appeal, we affirm the judgment of
the Superior Court dismissing the probate appeal filed
by the plaintiffs, Sheryl Buckingham and Darlene Dunn,
for lack of subject matter jurisdiction.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On October 21, 2011,
the decedent, Steve T. Liscinsky, executed a will naming
as beneficiaries his children, which include the plain-
tiffs and the defendant, Wayne S. Liscinsky. The will
also named the defendant as executor of the decedent’s
estate. The decedent died on May 1, 2016. Following
the decedent’s death, the defendant filed a petition with
the Probate Court for the district of Housatonic to admit
the will to probate. On August 9, 2016, the Probate
Court issued a notice of the defendant’s petition, which
listed the plaintiffs as recipients of the notice and
explained that the will would be admitted on August
24, 2016, with a deadline to object to its admission of
August 22, 2016. The plaintiffs never filed an objection
to the will, nor did any other interested party. Subse-
quently, on August 24, 2016, the Probate Court issued
a decree admitting the will to probate, and it served
notice to the interested parties on August 25, 2016. The
plaintiffs never appealed from this decree. See General
Statutes § 45a-186 (b).
Nearly three months later, on November 10, 2016,
the plaintiffs’ counsel filed his appearance with the
Probate Court. On January 9, 2017, 137 days after the
Probate Court had issued its decree, the plaintiffs filed
a motion titled ‘‘Notice of Intention to Contest Will’’
with the Probate Court. On January 11, 2017, the plain-
tiffs filed a related motion titled ‘‘Request for Court
Order for Disclosure of Medical Information.’’ In effect,
these two motions sought the decedent’s medical
records in order to contest the will under the alternative
theories that either the decedent lacked the capacity
to knowingly and voluntarily execute his will or the
will was the product of undue influence. On January
17, 2017, the defendant filed a motion to dismiss the will
contest, arguing that the Probate Court lacked subject
matter jurisdiction because the plaintiffs’ contest was
untimely, the court lacked statutory authority to con-
sider their claims, and their claims were barred by res
judicata. The Probate Court agreed and, on June 28,
2018, dismissed the action.
From that decree, the plaintiffs timely appealed to
the Superior Court. In their complaint to the Superior
Court, the plaintiffs included additional allegations that
they had not received proper notice of the defendant’s
petition to admit the will to probate and that the defen-
dant had ‘‘fraudulently concealed’’ and ‘‘fraudulently
presented’’ the will. The plaintiffs did not offer further
factual allegations to support their new claims of fraud.
In response, the defendant moved to dismiss the pro-
bate appeal on three grounds: (1) the Superior Court,
in exercising the same authority as the Probate Court,
lacked subject matter jurisdiction to decide the appeal;
(2) the plaintiffs’ claims were barred by res judicata;
and (3) the plaintiffs’ claims of fraud were legally insuffi-
cient. The Superior Court granted the motion and dis-
missed the appeal, concluding that it lacked subject
matter jurisdiction because the plaintiffs lacked statu-
tory authority to raise their claims outside of a timely
appeal from the original probate decree admitting the
will and those claims were barred by res judicata. This
appeal followed.
On appeal, the plaintiffs claim that the Superior Court
improperly dismissed their appeal from the Probate
Court. Specifically, they contend that they sufficiently
pleaded their claims of fraud, and, pursuant to General
Statutes § 45a-24,1 the Superior Court has jurisdiction to
set aside prior probate decrees without any applicable
statutory time limitation ‘‘when the claim involves
fraud, including concealment of lack of capacity, and
undue influence.’’2 We conclude that, in the circum-
stances of the present case, the Superior Court in this
probate appeal had no jurisdiction to set aside prior
decrees of the Probate Court—even on a ground of
fraud. Thus, the Superior Court lacked subject matter
jurisdiction to hear their claims.3
We begin by setting forth the relevant standard of
review. ‘‘Our Supreme Court has long held that because
[a] determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.
. . . Moreover, [i]t is a fundamental rule that a court
may raise and review the issue of subject matter juris-
diction at any time. . . . Subject matter jurisdiction
involves the authority of the court to adjudicate the
type of controversy presented by the action before it.
. . . The subject matter jurisdiction requirement may
not be waived by any party, and also may be raised by
a party, or by the court sua sponte, at any stage of the
proceedings, including on appeal.’’ (Internal quotation
marks omitted.) In re Probate Appeal of Knott, supra,
190 Conn. App. 61.
Moreover, ‘‘[a]n appeal from a Probate Court to the
Superior Court is not an ordinary civil action. . . .
When entertaining 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.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Gordon, supra, 45 Conn. App. 494–95. ‘‘When . . . no
record was made of the Probate Court proceedings, the
absence of a record requires a trial de novo.’’ Silverstein
v. Laschever, 113 Conn. App. 404, 409, 970 A.2d 123(2009).
The ultimate question in this appeal, therefore, is
whether the Probate Court possessed subject matter
jurisdiction to set aside a prior probate decree. If so,
then the plaintiffs would have had a cognizable cause
of action, and the Superior Court, in exercising the same
authority as the Probate Court, would have possessed
subject matter jurisdiction as well. Accordingly, we now
analyze the jurisdictional bounds of our courts of
probate.
‘‘The Probate Court is a court of limited jurisdiction
prescribed by statute, and it may exercise only such
powers as are necessary to the performance of its
duties. . . . As a court of limited jurisdiction, it may
act only when the facts and circumstances exist upon
which the legislature has conditioned its exercise of
power. . . . Such a court is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation.’’ (Internal quotation marks omitted.) In re
Probate Appeal of Cadle Co., 129 Conn. App. 814, 820, 21
A.3d 572, cert. denied, 302 Conn. 914, 27 A.3d 373 (2011).
In 1904, our Supreme Court first addressed the issue
of whether the Probate Court possesses the authority
to reverse or to set aside its prior decrees. Delehanty
v. Pitkin, 76 Conn. 412, 416, 56 A. 881 (1904), appeal
dismissed, 199 U.S. 602, 26 S. Ct. 748, 50 L. Ed. 328(1905). In Delehanty, the Probate Court issued a decree
admitting a will to probate, which the plaintiff did not
appeal, and then, four years later, the plaintiff petitioned
the Probate Court to admit a different will for the same
decedent. Id., 413–15. The Probate Court denied the
plaintiff’s petition, and the Superior Court subsequently
dismissed his appeal for want of jurisdiction. Id., 413.
On appeal, the plaintiff claimed that his proposed will
was the true will of the decedent and that one of the
executors had fraudulently destroyed the original copy
of this will. Id., 414. Upon reviewing the contemporane-
ous statutes governing the authority of the Probate
Court, our Supreme Court concluded that ‘‘the power
to set aside a decree of this kind, after the estate is
settled, is not in express terms anywhere given to our
courts of probate . . . .’’ Id., 416–17. Further, the court
rejected the plaintiff’s argument that the Probate Court
possessed that authority by implication, holding that
the courts of probate ‘‘have no such unregulated and
unlimited power to modify, reverse, or set aside . . .
their own final decrees . . . .’’ Id., 417–18. Instead, the
legislature vested the right to overturn probate decrees
with the Superior Court on appeal and, ‘‘save in the
cases excepted by statute, a final probate decree can
be set aside or reversed only upon appeal.’’ Id., 420.
Our Supreme Court further concluded that there was
no statutory exception permitting the Probate Court to
set aside its final decrees, even in cases alleging fraud.
Id., 423. The court examined General Statutes (1902
Rev.) § 194, the predecessor to § 45a-24, which provided
that ‘‘[n]o order made by a court of probate upon any
matter within its jurisdiction, shall be attacked collater-
ally, except for fraud, or set aside save by appeal.’’
(Internal quotation marks omitted.) Delehanty v. Pit-
kin, supra, 76 Conn. 420. The court concluded that § 194
did not apply to the case before it, because a proceeding
brought in the Probate Court to set aside a prior decree
for fraud constitutes a direct attack, rather than a collat-
eral attack, on the prior decree. Id., 423. The court
reasoned that ‘‘[a] direct attack upon a judgment, if
successful, wipes it out of existence; while a collateral
attack upon it, if successful, leaves it in full force, except
as against the party who collaterally attacks it, and as
regards the case in which it is so attacked. Clearly, the
proceeding before the court of probate was a direct
attack upon the decree in question, seeking to have it
set aside by the court of probate for fraud; and this,
we hold, the court of probate had no power to do,
even for fraud.’’ Id. The court therefore determined
that, because § 194 did not provide the Probate Court
jurisdiction to adjudicate direct attacks on probate
decrees, no statute, as of 1904, provided the Probate
Court with authority necessary to set aside its prior
decrees, even for fraud. Id.
More recently, our Supreme Court has clarified that
when a plaintiff fails to timely appeal a probate decree,
‘‘[h]er only recourse . . . would be by an appeal to the
general equitable power of the Superior Court, which
may, in proper cases, grant relief against decrees of the
Probate Court procured by fraud, accident, mistake and
the like.’’ (Internal quotation marks omitted.) VanBusk-
irk v. Knierim, 169 Conn. 382, 388, 362 A.2d 1334 (1975).
Likewise, this court previously has noted that, ‘‘[o]nly
in exceptional circumstances, such as fraud, mistake
or a like equitable ground, may [the Superior Court]
consider an equitable attack on a probate order or
decree.’’ Ferris v. Faford, 93 Conn. App. 679, 691, 890
A.2d 602 (2006); id., 691 n.5 (citing § 45a-24).
Presently, just as in 1904, there is no statute confer-
ring broad jurisdiction on the Probate Court to adjudi-
cate a direct attack on its prior decrees for any reason.
Instead, there are limited exceptions to the general rule
that the Probate Court may not overturn its prior
decrees, many of which are the same exceptions dis-
cussed by the court in Delehanty.4 Therefore, our
Supreme Court’s conclusion in Delehanty remains rele-
vant in the present day: In the absence of a specific
statutory exception, the Probate Court does not have
subject matter jurisdiction to set aside its prior decrees,
even for fraud. Delehanty v. Pitkin, supra, 76 Conn. 417.
Furthermore, the specific exceptions that the plaintiffs
presently seek—to contest an admitted will alleging
fraud, undue influence, and incapacity—have no statu-
tory basis. Specifically, in their brief to this court, the
plaintiffs rely on two statutes that they argue provide
subject matter jurisdiction here: §§ 45a-186 and 45a-24.
We disagree.
In citing § 45a-186, the plaintiffs argue that the Supe-
rior Court possessed jurisdiction because they were
aggrieved by the Probate Court’s dismissal of their will
contest and timely appealed that dismissal. Section 45a-
186 (b) provides in relevant part: ‘‘Any person aggrieved
by an order, denial or decree of a Probate Court may
appeal therefrom to the Superior Court. . . . [A]n
appeal from an order, denial or decree in any . . . mat-
ter [excluding certain exceptions listed elsewhere in
this section] shall be filed on or before the thirtieth day
after the date on which the Probate Court sent the
order, denial or decree. . . .’’5 In order for the Superior
Court to possess jurisdiction over an appeal from the
Probate Court, the plaintiffs must meet the require-
ments of § 45a-186 (b). See In re Probate Appeal of
Knott, supra, 190 Conn. App. 61–62. The plaintiffs must
demonstrate that they were aggrieved by the decision
of the Probate Court, because ‘‘the absence of
aggrievement, as required by that statute, is a defect
that deprives the Superior Court of jurisdiction to enter-
tain the appeal. . . . The concept of aggrievement
depends only on the existence of a cause of action upon
which a party may rest his plea for relief. The issue of
whether [a party] was aggrieved under [§ 45a-186 (b)]
by the actions of the Probate Court is to be distinguished
from the question of whether, on a review of the merits,
it will prevail. . . . If the plaintiff[s] had a cognizable
cause of action in the Probate Court, [they] would be
aggrieved by an order of that court denying [them]
relief.’’ (Citations omitted; internal quotation marks
omitted.) In re Baskin’s Appeal from Probate, 194
Conn. 635, 637–38, 484 A.2d 934 (1984).
Despite the plaintiffs’ timely appeal, § 45a-186 (b)
alone does not establish jurisdiction here because a
dismissal in the Probate Court constitutes aggrievement
only where ‘‘the plaintiff[s] had a cognizable cause of
action in the Probate Court . . . .’’ (Internal quotation
marks omitted.) Id., 638. Thus, § 45a-186 does not
resolve the ultimate issue of whether the plaintiffs, in
fact, possessed a cognizable cause of action in the Pro-
bate Court.
Next, the plaintiffs argue that the Superior Court pos-
sesses subject matter jurisdiction in will contests alleg-
ing fraud pursuant to § 45a-24, which provides in rele-
vant part: ‘‘All orders, judgments and decrees of courts
of probate . . . shall not be subject to collateral attack,
except for fraud.’’6 Generally, the plaintiffs’ proposition
is true; our appellate courts continually have reaffirmed
the principle that the Superior Court may exercise its
equitable jurisdiction to ‘‘grant relief against decrees of
the Probate Court procured by fraud, accident, mistake
and the like.’’ (Internal quotation marks omitted.) Van-
Buskirk v. Knierim, supra, 169 Conn. 388. The plain-
tiffs, however, misunderstand their procedural posture
in the present case. When a decision of the Probate
Court is appealed pursuant to § 45a-186, ‘‘[t]he Superior
Court, in turn . . . acts as a court of probate with the
same powers and subject to the same limitations.’’
(Internal quotation marks omitted.) In re Probate
Appeal of Knott, supra, 190 Conn. App. 61. Similar to
the plaintiff in Delehanty, the plaintiffs here instituted
a separate action in the Probate Court seeking to set
aside the prior decree admitting the will. If successful,
the plaintiffs’ challenge to the will would wipe the prior
decree out of existence. The Delehanty court plainly
held that such an attack is not a collateral attack;
instead, the plaintiffs’ action is properly characterized
as a direct attack on the prior decree, over which the
Probate Court lacks jurisdiction, even in cases of fraud.
See Delehanty v. Pitkin, supra, 76 Conn. 417, 423. Sec-
tion 45a-24 provides only for collateral attacks, just as
its predecessor provided in 1904, and has no provision
permitting direct attacks on probate decrees. Conse-
quently, for the Superior Court to possess jurisdiction,
the plaintiffs would need to institute a separate action
collaterally attacking the probate decree admitting the
will and invoke the court’s equitable jurisdiction by
alleging fraud or other equitable grounds. See VanBusk-
irk v. Knierim, supra, 388; Delehanty v. Pitkin, supra,
417. Thus, because no such independent action was
before the Superior Court, § 45a-24 does not provide
jurisdiction here.
Beyond the arguments put forth by the plaintiffs, our
review of the statutory authority governing our courts
of probate similarly does not uncover any source for
subject matter jurisdiction to set aside the probate
decree in the present case. Instead, our appellate courts
have long established that there are only two recourses
for the remedy that the plaintiffs seek: they either could
have timely appealed the admission of the will to the
Superior Court pursuant to § 45a-186 or filed an inde-
pendent action with the Superior Court, invoking its
equitable jurisdiction by claiming fraud, mistake, or a
like equitable ground. The plaintiffs took neither
approach. Instead, they filed a separate action with the
Probate Court to contest the will without any statute
granting the court jurisdiction to hear such matters.
Therefore, because the Probate Court ‘‘is without juris-
diction to act unless it does so under the precise circum-
stances and in the manner particularly prescribed by the
enabling legislation,’’ the Probate Court lacked subject
matter jurisdiction to hear the plaintiffs’ motion. (Inter-
nal quotation marks omitted.) State v. Gordon, supra, 45
Conn. App. 495. On appeal, the Superior Court likewise
lacked jurisdiction, because in a probate appeal, even
in cases in which the plaintiffs allege fraud, the Superior
Court may act only with the same authority possessed
by the Probate Court. We therefore conclude that the
Superior Court properly dismissed the appeal for lack
of subject matter jurisdiction because there was no
statutory authority permitting the court to grant the
remedy the plaintiffs sought.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 45a-24 provides in relevant part: ‘‘All orders, judg-
ments and decrees of courts of probate, rendered after notice and from
which no appeal is taken, shall be conclusive and shall be entitled to full
faith, credit and validity and shall not be subject to collateral attack, except
for fraud.’’
2
Although the plaintiffs do not address the Superior Court’s application
of res judicata in their arguments to this court, we recognize that it is well
settled that ‘‘[r]es judicata is not included among the permissible grounds
on which to base a motion to dismiss. Res judicata with respect to a jurisdic-
tional issue does not itself raise a jurisdictional question.’’ Zizka v. Water
Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). ‘‘Res
judicata does not provide the basis for a judgment of dismissal; it is a special
defense that is considered after any jurisdictional thresholds are passed.’’
Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994).
3
Because our resolution of the issue of subject matter jurisdiction is
dispositive of the appeal, we need not address the sufficiency of the plaintiffs’
claims of fraud. See, e.g., Bailey v. Medical Examining Board for State
Employee Disability Retirement, 75 Conn. App. 215, 216 n.4, 815 A.2d
281 (2003).
4
For instance, General Statutes § 45a-128 (a) provides in relevant part:
‘‘[A]ny order or decree made by a court of probate ex parte may, in the
discretion of the court, be reconsidered and modified or revoked by the
court. . . .’’ See also Delehanty v. Pitkin, supra, 76 Conn. 418 (‘‘in 1869 the
[l]egislature provided that ‘any court of probate may modify or revoke any
order made ex parte, before an appeal therefrom, and, if made in reference
to the settlement of any estate, before the final settlement’ ’’).
5
Although § 45a-186 (b) provides an alternative forty-five day window to
file an appeal on certain grounds and General Statutes § 45a-128 (b) provides
a 120 day window to seek reconsideration, modification, or revocation of
a probate decree, the arguments put forth by both parties to this court have
only concerned the thirty day limit.
6
We note that the language of the predecessor statute to § 45a-24, as
discussed by our Supreme Court in Delehanty, has changed little over the
intervening century. See Delehanty v. Pitkin, supra, 76 Conn. 420 (‘‘[t]he
words of the statute are as follows: ‘[n]o order made by a court of probate
upon any matter within its jurisdiction, shall be attacked collaterally, except
for fraud, or set aside save by appeal’ ’’).