Dalia v. Lawrence

Berdon, J.,

dissenting and concurring. I disagree with parts I and II of the majority opinion and concur in the result reached in part III.

I

The majority leaves the plaintiff, a widow who was married to the decedent for twenty-two years, penniless notwithstanding the fact that her decedent hus*75band had net assets at the time of his death valued at approximately $163,000. Indeed, in order to pursue this litigation, she was required to appeal in forma pauperis. The majority’s conclusion that trust savings accounts established by a decedent pursuant to General Statutes § 36-110 (a) (Totten trust) can defeat the rights of a surviving spouse to her statutory share of the funds in those accounts is contrary to the public policy of this state; General Statutes §§ 45a-436 and 45a-437;1 contrary to the prevailing view acknowledged by this court in Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); contrary to the public policy of the majority of jurisdictions that have ruled on this issue;2 contrary to the Restatement of Trusts; 1 Restatement (Second), Trusts § 58, comment e;3 contrary to the leading treatise on trust law; IA A. Scott & W. Fratcher, Trusts (4th Ed *761987) § 58.5;4 and contrary to the Uniform Probate Code.5 The majority’s position has also been criticized by commentators. See, e.g., M. Wenig, “The Marital Property Law of Connecticut: Past, Present and Future,” 1990 Wis. L. Rev. 807, 855 (1990).

It troubles me that the majority fails to protect poor widows and widowers, yet would not hesitate to set aside the trust for creditors of the spouse’s estate. See Salvio v. Salvio, supra, 320 (“[i]t is generally accepted that the funds on deposit may be reached by the depositor’s creditors during his lifetime and, if he dies insolvent, after his death”). The majority apparently supports this inequity.

*77Indeed, Chief Justice Peters in Salvio v. Salvio, supra, 320-21, wrote for a unanimous court the following: “Although there is no such consensus on the right of a spouse to reach funds deposited in savings account trusts when computing an elective share of the depositor’s estate, the prevailing view is that, since the decedent spouse exercised such complete power over the funds during his lifetime, the surviving spouse should be permitted to include them.” (Emphasis added.)

It is clear that a person has a right to make a gift of property during his or her lifetime, even though the gift deprives the surviving spouse of his or her statutory share. Nevertheless, if the decedent, after making the purported gift, retained complete and absolute dominion and control over the property, the surviving spouse cannot be deprived of his or her statutory share in the property. “ Tf the disposition by the husband be bona fide, and no right is reserved to him, then, though made to defeat the claim of the wife, it will be good against her, because an act cannot be denounced as fraudulent which the law authorizes to be done. But if it be a mere device or contrivance, by which the husband, not parting with the absolute dominion over the property during his life, seeks, at his death, to deny his widow that share of his personal estate which the law assigns to her, then it will be ineffectual against her.’ ” Sturgis v. Citizens National Bank, 152 Md. 654, 659-60, 137 A. 378 (1927), quoting Hays v. Henry, 1 Md. Ch. 337 (1848); see also Montgomery v. Michaels, 54 Ill. 2d 532, 537-38, 301 N.E.2d 465 (1973); Whittington v. Whittington, 205 Md. 1, 11, 106 A.2d 72 (1953); Mushaw v. Mushaw, 183 Md. 511, 519, 39 A.2d 465 (1944). The present case is even more compelling because the decedent treated the property as if it were his own up until the time of death. The majority *78sets us back more than one hundred years to a time when a decedent could elect to deprive the spouse of any part of his or her estate.6

II

I disagree with the majority’s conclusion that the decedent had intended to vest title to the real property in the defendants immediately and irrevocably. I recognize that the determination of whether a gift has been made is “ ‘not reviewable unless the conclusion drawn by the trier is one which cannot reasonably be made’ Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951); and that we must give deference to the trial court’s findings of fact. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). Nevertheless, our deference does not preclude review entirely, nor does it give the trial court carte blanche. Here, the defendants had the burden of proving by dear and satisfactory evidence that the decedent had made an inter vivos gift of the house to his children. Long v. Schull, 184 Conn. 252, 255, 439 A.2d 975 (1981). “Clear and satisfactory” evidence is the equivalent to “clear and convincing” evidence. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.4.1 (b), pp. 73-74. This standard of proof is sustained only if the evidence “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false *79or do not exist.” (Emphasis added; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 534, 441 A. 2d 151 (1981).

We have long held that a gift inter vivos is valid, but one causa mortis is not. “One may transfer property in such a way that interests in it will arise only at his death, and he may transfer it in contemplation of his death, in lieu of making a will; but to be valid such transfers must convey a present interest. . . . One may not make a valid transfer of property where the intent is not to convey a present interest, but solely to create interests which will arise at death, except in compliance with the requirements of the Statute of Wills; and any such attempted transfer is void. ... If this were not so it would lie in the power of any person at any time, by making conveyances of property, to circumvent the statute. The intent of the transferor, whether to convey a present interest or to make a disposition of his property to take effect only at his death, is the controlling element in determining the validity of a transfer. . . . That a transfer of property was executed and delivered with intent to make a testamentary disposition of it, may be shown by parol evidence; this would not be to vary the terms of the instrument but to establish the underlying illegality of the transaction.” (Citations omitted.) Bowen v. Morgillo, 127 Conn. 161, 167, 14 A.2d 724 (1940).

The undisputed facts concerning the twenty-two years after the execution of the deed in 1968 prevent a finding that the defendants sustained their burden by clear and convincing evidence that the decedent had made a valid gift of the house to the defendants. The property was a home to the decedent and the plaintiff for twenty-two years. They maintained the property by “doing repairs, hiring and paying contractors, paying real property taxes, insurance for the house, sewer use charges, water use charges. [They] rented the *80apartment unit and collected the rents, reported the income on their joint tax returns, took deductions on their tax returns, negotiated leases with the tenants, [and] dealt with tenant issues.” In addition, when the decedent took out a building permit, he listed himself as the owner of the home. The decedent held himself out as the owner of the property to tenants and neighbors. Indeed, the decedent stated to his children that they would receive the property upon his death.

I would hold that the defendants failed to prove by clear and convincing evidence that there had been a valid inter vivos transfer of the home in 1968 and would order that the home is part of the decedent’s estate.

Ill

Because General Statutes § 36-3 places the burden on the plaintiff to prove by clear and convincing evidence that the decedent did not intend to make a gift of the survivorship savings account, and because the plaintiff neither challenges the statute nor claims that the public policy of the state is to make the deposit subject to the surviving spouse’s rights under General Statutes §§ 45a-436 and 45a-437,1 concur in the result of part III.

See footnote 5 of the majority opinion.

See Montgomery v. Michaels, 54 Ill. 2d 532, 537-38, 301 N.E.2d 465 (1973) (Totten trust, over which decedent maintains control during his or her lifetime, may not deprive surviving spouse of statutory share, regardless of decedent’s intent in creating the savings account trust); Whittington v. Whittington, 205 Md. 1, 11, 106 A.2d 72 (1954) (gift maybe set aside if donor spouse retained dominion and control over the property during his lifetime); Mushaw v. Mushaw, 183 Md. 511, 519, 39 A.2d 465 (1944) (“[a] husband has an undoubted right to transfer his personal property during his lifetime . . . but where he does not part with dominion over the property transferred, the issue of good faith is immediately raised”); Sturgis v. Citizens National Bank, 152 Md. 654, 659-60, 137 A. 378 (1927) (a spouse is free to make a gift for the purpose of depriving his or her spouse of any share in the property, provided that the spouse does not maintain dominion and control over the property during his or her lifetime); In re Estate of Jeruzal, 269 Minn. 183, 196, 130 N.W.2d 473 (1964) (“The statutory policy against allowing the widow to be left destitute should not be subordinated to the policy of giving broad effect to savings account trusts, however desirable the latter might be. We cannot overlook the danger that lies in the general use of Totten trusts as they may affect the surviving spouse.”); see also annot., 64 A.L.R.3d 187, §§ 7 through 9.

“Although the surviving spouse in claiming his or her statutory distributive share of the estate of the decedent is not entitled to include in the estate property transferred during his lifetime by the decedent in trust for him*76self for life with remainder to others, even though the decedent reserves a power of revocation (see § 57, Comment c), the surviving spouse of a person who makes a savings deposit upon a tentative trust can include the deposit in computing the share to which such surviving spouse is entitled.” 1 Restatement (Second), Trusts § 58, comment e, pp. 157-58.

“It is true that it is generally held that the creation of a revocable trust is sufficient to cut out the surviving spouse, at least if the settlor does not reserve too great a control over the property. In the case of the savings-deposit trust, however, the depositor reserves such complete control that it would seem that, even though the trust is valid as against the personal representative of the depositor, it should not be valid as against the surviving spouse. Certainly the policy underlying the statute protecting the surviving spouse is stronger than the policy underlying the statute providing for certain formalities to evidence a testamentary disposition. It may well be held that the creation of a savings-deposit trust is valid but not effective to cut out the surviving spouse.” (Emphasis added.) IA A. Scott & W. Fratcher, Trusts (4th Ed. 1987) § 58.5, p. 232.

The general comment to article 2, part 2 of the Uniform Probate Code (1969) provides: “The sections of this Part [the elective share section] describe a system for common law states designed to protect a spouse of a decedent who was a domiciliary against donative transfers by will and will substitutes which would deprive the survivor of a ‘fair share’ of the decedent’s estate.” 8 U.L.A. 73 (1983).

Under § 2-202 (1) of the Uniform Probate Code, the following amounts are added to the augmented estate: “(i) any transfer under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property; (ii) any transfer to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit . ...” 8 U.L.A. 76 (1983).

The majority argues that the results in this case are justified under Cherniack v. Home National Bank & Trust Co., 151 Conn. 367, 198 A.2d 58 (1964), because “a financially sophisticated decedent” would have reached the same result with an inter vivos trust. Simply put, the plaintiff in Cherniack never argued that the creation of the trust to avoid the spouse’s obligation under General Statutes §§ 45a-436 and 45a-437 was against public policy. In any case, it is not acceptable for a spouse—either in a “sophisticated” manner or through a “poor man’s trust”—to deprive a surviving spouse of his or her minimum share of the property that the spouse owns at the date of death.