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IN RE PROBATE APPEAL OF RICHARD HARRIS
(AC 43983)
Alvord, Moll and Clark, Js.
Syllabus
The plaintiff appealed to the trial court from the decree of the Probate Court
admitting the decedent’s will to probate. Following the decedent’s death,
the defendant D filed an application to admit the decedent’s will to
probate. At the hearing on D’s application, S, the notary public who
took the attestation of the witnesses to the execution of the decedent’s
will, testified, inter alia, that she was a notary at the time the will was
executed, she would never notarize a document unless all persons who
signed the document were present, she recognized the names of the
two witnesses as fellow bank employees, she wrote the names of the
witnesses on the will directly below where the decedent signed the
document, the witnesses signed the self-proving affidavit, and she then
signed as notary directly below those signatures, after taking their oath
as to the matters contained in the self-proving affidavit. Following the
hearing, the Probate Court admitted the decedent’s will to probate,
concluding that the will complied with the statutory (§ 45a-251) require-
ments pertaining to the execution of a valid will. In reaching its decision,
the Probate Court concluded that S’s testimony, which it found credible,
satisfied D’s burden of proving that the decedent signed the will in the
presence of two witnesses. Specifically, the Probate Court found that
the decedent signed the will in the presence of the witnesses who then
signed the self-proving affidavit in the presence of the decedent. Relying
on our Supreme Court’s decision in Gardner v. Balboni (218 Conn. 220),
the Probate Court concluded that, under such circumstances, it could
see no reason why the same considerations that supported the Probate
Court in that case being able to rely on the testator’s signature in a self-
proving affidavit would not support the same result for the witnesses’
signatures in this case because § 45a-251 does not specify the exact
place where witnesses must sign a will for it to be valid and the concept
of strict compliance connotes strict compliance with the statutory
requirements, not strict compliance with forms drafted with the intention
of satisfying the statutory requirements. Thereafter, the plaintiff
appealed to the trial court, and the parties agreed to have the appeal
proceed on the record. The trial court denied the appeal, and, in doing
so, it expressly agreed with the Probate Court’s reasoning and concluded
that the will properly was admitted to probate. On the plaintiff’s appeal
to this court, held that the plaintiff could not prevail on his claim that
the trial court erred in concluding that the will was validly attested by
two witnesses as required by § 45a-251 because the witnesses signed
only the self-proving affidavit: this court, like the trial court, agreed with
and adopted the Probate Court’s reasoning in its decree, as there was
no challenge to the authenticity of the signatures or to the Probate
Court’s factual findings that the decedent signed the will in the presence
of the witnesses, that the witnesses signed the document containing the
will in the presence of the decedent, and that they did so as part of a
single transaction, and, under such circumstances, there was no basis
not to extend Gardner to the facts of the present case; accordingly, this
court concluded that the will was properly attested by two witnesses
as required by § 45a-251 because to conclude otherwise would be to
elevate form over substance in a manner not contemplated by our rule
of strict compliance with the statutory requirements.
Argued October 14, 2021—officially released August 23, 2022
Procedural History
Appeal from the decree of the Probate Court for the
district of Newington admitting to probate the will of
Freida Harris, brought to the Superior Court in the
judicial district of New Britain and tried to the court,
Aurigemma, J.; judgment denying the appeal, from
which the plaintiff appealed to this court. Affirmed.
Andrew S. Knott, with whom, on the brief, was Robert
J. Santoro, for the appellant (plaintiff).
Peter J. Boorman, with whom, on the brief, was Ron-
ald P. Denault, for the appellee (defendant Dora-Lynn
Harris).
Opinion
PER CURIAM. The plaintiff, Richard Harris, appeals
from the judgment of the Superior Court denying his
appeal from a decree of the Newington Probate Court
admitting the will of his mother, Freida Harris (dece-
dent), to probate upon the application of the defendant
Dora-Lynn Harris.1 On appeal, the plaintiff claims that
the court erred in concluding that the will was validly
attested by two witnesses as required by General Stat-
utes § 45a-251. We disagree and, accordingly, affirm the
judgment of the Superior Court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
July 28, 2017, the decedent passed away leaving a last
will and testament dated March 16, 2010 (will). The
decedent was predeceased by her husband. The dece-
dent’s will contained, inter alia, the following provi-
sions: (1) ‘‘I give One Dollar to my sons, Gary Lee Harris
and Richard Sherman Harris, not for lack of love or
affection, but for reasons known by all parties’’; (2) ‘‘I
give all my real estate in equal shares to my daughters,
Dora-Lynn Friedman and Sheryl Beth Dedek, who sur-
vive me and to the issue who survive me of those of
my children who predecease me, in equal shares per
stirpes’’; (3) ‘‘I give all tangible personal property owned
by me at the time of my death . . . to those of my
daughters, Dora-Lynn Friedman and Sheryl Beth Dedek,
who survive me, in substantially equal shares, to be
divided among them as they shall agree, or if they cannot
agree, as my Executrix shall determine’’; (4) ‘‘I give all
the rest, residue and remainder of my property and
estate . . . [t]o my daughters who survive me and to
the issue who survive me of those of my daughters who
predecease me’’; and (5) ‘‘I appoint Dora-Lynn Friedman
to be my Executrix.’’2
On August 31, 2017, the defendant filed an application
to admit the will to probate. On December 11, 2017,
the Probate Court, Randich, J., held a hearing on the
defendant’s application. On December 28, 2017, the Pro-
bate Court issued a decree admitting the will to probate.
The plaintiff appealed from the Probate Court’s
December 28, 2017 decree to the Superior Court. On
April 5, 2019, pursuant to Practice Book § 10-76, the
plaintiff filed his amended reasons of appeal, con-
tending that ‘‘[t]he Probate Court erred [in] admitting
the [decedent’s will] to probate . . . because the pur-
ported will lacked a proper formality, as it was not
witnessed by two witnesses, in violation of . . . § 45a-
251.’’ In lieu of proceeding with a trial de novo, the
parties agreed to have the probate appeal proceed as
an on the record appeal.3 On January 13, 2020, following
the submission of the parties’ stipulation and written
memoranda, the Superior Court, Aurigemma, J., heard
the appeal. On February 13, 2020, the court issued its
memorandum of decision denying the plaintiff’s appeal
and concluding that the will properly was admitted
to probate. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
The plaintiff claims on appeal that the Superior Court
erred in concluding that the will was validly attested
by two witnesses as required by § 45a-251, which pro-
vides in relevant 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 . . . .’’
Specifically, the plaintiff argues that the will was not
properly attested because the witnesses signed only the
self-proving affidavit, which technically is not part of
the will. The defendant responds that the court did not
err in determining that the will was attested by two
witnesses because, consistent with Gardner v. Balboni,
218 Conn. 220, 588 A.2d 634 (1991), the due execution
requirements of § 45a-251 were met. We agree with the
defendant.
We begin with the standard of review, which is set
forth in General Statutes § 45a-186b, applicable to pro-
bate appeals taken under General Statutes § 45a-1864
from a matter heard on the record in the Probate Court.
Section 45a-186b provides in relevant part: ‘‘[T]he Supe-
rior Court shall not substitute its judgment for that of
the Probate Court as to the weight of the evidence on
questions of fact. The Superior Court shall affirm the
decision of the Probate Court unless the Superior Court
finds that substantial rights of the person appealing
have been prejudiced because the findings, inferences,
conclusions or decisions are: (1) In violation of the
federal or state constitution or the general statutes, (2)
in excess of the statutory authority of the Probate Court,
(3) made on unlawful procedure, (4) affected by other
error of law, (5) clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record,
or (6) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discre-
tion. . . .’’ This standard of review governing probate
appeals also applies to our appellate courts. See In re
Probate Appeal of Nguyen, 199 Conn. App. 498, 503,
236 A.3d 291 (2020).
Our Supreme Court’s decision in Gardner v. Balboni,
supra, 218 Conn. 220, is particularly instructive on the
question before us. In Gardner, the testatrix had signed
a document purporting to be her will on one of the
witness lines of the self-proving affidavit, instead of
immediately below the execution clause. Id., 226. The
plaintiffs, who contested the will, which was ‘‘prepared
apparently without advice of counsel’’ and ‘‘contain[ed]
irregularities,’’ claimed, inter alia, that there was insuffi-
cient evidence that the will’s execution met statutory
requirements. Id., 221. Specifically, they contended that,
because the testatrix signed the will below the self-
proving affidavit and attestation clause, instead of
immediately below the execution clause, she had not
‘‘ ‘subscribed’ ’’ the will, as required by § 45a-251.5 Id.,
226. Our Supreme Court rejected the plaintiffs’ claim,
first emphasizing that the attestation clause, the unexe-
cuted self-proving affidavit, and the testatrix’s signature
all appeared at the end of a single document. Id., 228.
The court held that the testatrix validly subscribed the
will, reasoning that, ‘‘while it is certainly true that the
self-proving affidavit and the attestation clause are not
parts of the testatrix’s ‘will,’ their intervening presence
does not suggest an incomplete expression of the testa-
mentary purpose, nor the presence of counterfeit dispo-
sitions. More importantly, our statute does not require
the testatrix to sign at the end of the will, but to sub-
scribe it, ‘[l]iterally to write underneath.’ Black’s Law
Dictionary (5th Ed. 1979) p. 1279. Rejecting the testa-
trix’s signature as a valid subscription of the will would
elevate form over substance in a manner not contem-
plated by our rule of strict compliance with the wills
act.’’ (Emphasis in original.) Gardner v. Balboni,
supra, 228.
Against this framework, we set forth the following
additional facts, as found by the Probate Court and
adopted by the Superior Court, which are relevant to
our consideration of the plaintiff’s claim. Amy Stoto,
the notary public who took the attestation of the wit-
nesses to the decedent’s will execution in March, 2010,
was employed at the Newington branch of TD Bank
at that time. Stoto testified before the Probate Court,
among other things, that (1) she was a notary at that
time, (2) she would never notarize a document unless
all persons who signed the document were present, (3)
she recognized the names of the two witnesses as fellow
TD Bank employees and thus was confident that the
document was executed during banking hours, (4) she
wrote the names of the witnesses on the will document
directly below where the decedent signed the docu-
ment, and (5) the two witnesses signed the self-proving
affidavit, and she then signed as notary directly below
those signatures after taking their oath as to the matters
contained in the self-proving affidavit.
The Probate Court concluded that Stoto’s testimony,
which it found credible, ‘‘satisfie[d] the proponent’s
burden of proving that the [decedent] signed the will
in the presence of two witnesses.’’ Accordingly, the
Probate Court found that ‘‘the [decedent] signed the
will in the presence of the witnesses and . . . the wit-
nesses then signed the self-proving affidavit in the pres-
ence of the [decedent].’’ The Probate Court then relied
on Gardner to conclude that, ‘‘[u]nder such circum-
stances, the court sees no reason why the same consid-
erations which support a Probate Court being able to
rely on a testator’s signature in the self-proving affidavit
section of the will would not support the same result
for the signature of witnesses. [Section 45a-251] does
not require the exact place where witnesses must sign
a will for it to be valid, and, under the circumstances,
the court can find with a high level of confidence that
this will was executed by the [decedent] in the presence
of two witnesses who then signed the document which
contained the will. Accordingly, the court will find that
the will document complies with the statutory require-
ments and should be admitted to probate. The concept
of strict compliance connotes strict compliance with
the statutory requirements, not strict compliance with
forms drafted with the intention of satisfying the statu-
tory requirements.’’ The Superior Court, in denying the
plaintiff’s appeal, agreed with the Probate Court’s rea-
soning and concluded that the will should be admitted
to probate.
We also agree with the Probate Court’s reasoning
and adopt it as our own. Here, as in Gardner, there is
no challenge to the authenticity of any of the signatures.
Nor is there any challenge to the Probate Court’s factual
findings that the decedent signed the will in the pres-
ence of the witnesses, that the witnesses signed the
document containing the will in the presence of the
decedent, and that they did so as part of a single transac-
tion. Under these circumstances, we cannot conceive
of any basis not to extend Gardner to the facts before
us. Accordingly, we conclude that the will was properly
attested by two witnesses as required by § 45a-251. To
conclude otherwise would be to ‘‘elevate form over
substance in a manner not contemplated by our rule
of strict compliance with the wills act.’’ Gardner v.
Balboni, supra, 218 Conn. 228. We refuse to contradict
this guidance from our Supreme Court, and, therefore,
we conclude that the Superior Court did not err in
determining that the will was validly attested by two
witnesses as required by § 45a-251.
The judgment is affirmed.
1
Although the plaintiff’s complaint named Sheryl Beth Dedek and Gary
Harris as additional defendants, both were defaulted for failure to appear,
and they are not participating in this appeal. Therefore, all references to
the defendant are to Dora-Lynn Harris, and all references to the parties are
to the plaintiff and the defendant collectively.
2
The defendant’s name appears in the decedent’s will as Dora-Lynn Fried-
man; the complaint and subsequent court filings refer to the defendant as
Dora-Lynn Harris.
3
On April 8, 2019, the parties filed a stipulation with the Superior Court
stipulating, inter alia, that the court adopt the factual findings of the Probate
Court as set forth in the December 28, 2017 decree. The parties further
stipulated that ‘‘the sole issue before the court is a question of law: ‘Was
the will attested by two witnesses?’ If the court finds in the affirmative,
then the appeal is to be denied. If the court finds in the negative, then the
appeal is to be sustained.’’
4
General Statutes § 45a-186 provides in relevant part: ‘‘(b) Any person
aggrieved by an order, denial or decree of a Probate Court may appeal
therefrom to the Superior Court. . . .
‘‘(d) An appeal from a decision rendered in any case after a recording of
the proceedings is made under section 17a-498 . . . shall be on the record
and shall not be a trial de novo. . . .’’
5
The plaintiffs did not challenge the signature’s authenticity. See Gardner
v. Balboni, supra, 218 Conn. 227.