Connecticut Junior Republic v. Sharon Hospital

Peters, J.

(dissenting). In order to bring into focus my disagreement with the majority opinion, I want first to note where I am in total accord with that opinion. Like the majority, I note that the only issue is whether extrinsic evidence of a mistake by a scrivener is admissible in a proceeding to determine the validity of a testamentary instrument. I would add, however, that the issue is even narrower than stated by the majority since the present aim of the proponents of the evidence of mistake is only to delete provisions from, rather than add provisions to, the disputed testamentary disposition. Like the majority, I note that the issue comes to us in the procedural context of a motion to strike, so that we *22must accept as accurate, for the purposes of this appeal, the allegations that the attorney who drafted the testator’s second codicil erroneously included therein a change of beneficiaries that the decedent had neither requested nor authorized. Furthermore, I would add that the Probate Court expressly found that substantial and convincing evidence had been offered in support of the proposition that innocent misrepresentation of the contents of the will had resulted in a mistake in the instrument as executed. Like the majority, I too would find insufficient evidence of ambiguity in the will itself to warrant recourse to extrinsic evidence that would not otherwise be admissible.

We are left, then, with the question which I would answer differently than does the majority. Must the true intent of the testator be thwarted when, because of the mistake of a scrivener, he has formally subscribed to a written bequest that substantially misstates his testamentary intention? For all practical purposes, this is a question of first impression in this state, certainly in this state in this century. I would permit extrinsic evidence of a scrivener’s error to be introduced in litigation concerned with the admissibility of a disputed will to probate.

I take as a point of departure the established proposition that a will cannot validly be probated if it was executed by a testator in reliance on erroneous beliefs induced by fraud, duress, or undue influence. See, e.g., Page v. Phelps, 108 Conn. 572, 581, 143 A. 890 (1928); Rockwell’s Appeal, 54 Conn. 119, 120-21, 6 A. 198 (1886); Canada’s Appeal, 47 Conn. 450, 459 (1880); Mills’s Appeal, 44 Conn. 484, 485 (1877). In all of these cases, the testamentary *23process is distorted by the interference of a third person who misleads the testator into making a testamentary disposition that would not otherwise have occurred. There is similar distortion when a will is executed in reliance on erroneous beliefs induced by the innocent error, by the innocent misrepresentation, of the scrivener of a will. I can see no reason of logic or of policy to treat the mistake case differently from the fraud or undue influence case. In each instance, extrinsic evidence is required to demonstrate that a will, despite its formally proper execution, substantially misrepresents the true intent of the testator.

The majority would disallow extrinsic evidence of a scrivener’s error for two principal reasons: the existing Connecticut ease law, and the risk of subverting the policy of the Statute of Wills. I find neither reason persuasive.

The existing case law is, as the majority opinion acknowledges, of ancient vintage. I agree that antiquity does not automatically disqualify common law precedents that continue to serve modern needs. But I find our case law less persuasive than does the majority.

The principal case is Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254 (1830), because it, like this case, deals with the question of admission of a will to probate. Comstock seems to me to be distinguishable because there the proponents of extrinsic evidence of mistake were seeking to reform the will by adding new provisions to its contents. The case before us would result, if the extrinsic evidence were considered, in the deletion of unintended testamentary bequests, surely a less problematical confrontation with the policy of the *24Statute of Wills. See Barnes v. Viering, 152 Conn. 243, 246, 206 A.2d 112 (1964); 9 Wigmore, Evidence (3d Ed. 1940) § 2421; Atkinson, Wills (2d Ed. 1953) § 58, p. 274. Furthermore, it seems to me that the authority of Comstock is substantially undermined by Rockwell’s Appeal, supra, 56 years after Comstock, in which this court noted (p. 120) a presumption “that [the will] was executed freely and without fraud or mistake until the contrary appears.” (Emphasis added.) See also Sansona v. Laraia, 88 Conn. 136, 138, 90 A. 28 (1914).

The other cases upon which the majority opinion most heavily relies are no more dispositive. Stearns v. Stearns, 103 Conn. 213, 130 A. 112 (1925), McDermott v. Scully, 91 Conn. 45, 98 A. 350 (1916), and Fairfield v. Lawson, 50 Conn. 501 (1883), all arose in the context of will construction. The plaintiffs have not contested the proposition enunciated in these eases that a court will not, in construing an unambiguous testamentary instrument, consider extrinsic evidence, once the instrument has been admitted to probate. These eases do not, except by way of dictum, determine when extrinsic evidence may be relied upon to deny admission of a will to probate.

That brings us to considerations arising out of the policy of the Statute of Wills. General Statutes § 45-161. The risk of subversion of the intent of a testator, who cannot personally defend his testamentary bequest, is without doubt a serious concern. Balanced against that concern is the risk of blindly enforcing a testamentary disposition that substantially misstates the testator’s true intent. We have long ago resolved this balance in favor of admitting extrinsic evidence when the testator’s *25intent is undermined by fraud, undue influence or incapacity. Had the decedent’s lawyer deliberately and fraudulently altered the second codicil, the relevant extrinsic evidence would unquestionably have been admitted. Under the modern law of misrepresentation, innocent misrepresentation is treated as generally equivalent to fraud in terms of its legal consequences. See Johnson v. Healy, 176 Conn. 97, 100, 405 A.2d 54 (1978). To allow the admissibility of extrinsic evidence to turn on the scrivener’s fraudulent intent or lack thereof is to distort the purpose of a Probate Court. Its proper business is to determine what instrument, if any, the decedent properly executed as his will. Gray, “Striking Words Out of a Will,” 26 Harv. L. Rev. 212, 217 (1913). The guilt or negligence of third parties is only incidentally relevant to such a determination, since the effect on the testator’s mind of either fraud or mistake is subjectively the same. The Statute of Wills does not compel enforcement of testamentary dispositions that a testator never intended to make. See Fuller v. Nazal, 259 Ala. 598, 601, 67 So. 2d 806 (1953); Christman v. Roesch, 116 N.Y.S. 348, 350 (1909), aff’d mem., 198 N.Y. 538, 92 N.E. 1080 (1910); 1 Page, Wills (Bowe-Parker Ed. 1960) § 13.3, p. 665; Gray, supra, 223; Henderson, Jr., “Mistake and Fraud in Wills,” 47 B.U.L. Rev. 303, 368 (1967).

Objection to the admission of extrinsic evidence in this case must therefore find support outside the direct commandments of the Statute of Wills. Two such objections have been advanced. One objection relies on the effect of the will’s formal execution as a validation by the testator of the contested provision. The second points to the juridical risk of spurious will contests.

*26The first objection, raised by the defendants at oral argument and in their brief, states that whatever error the scrivener may have made was validated and ratified by the testator’s act in signing his will. Neither American law in general, nor the case law of this state, has ever assigned so conclusive an effect to the reading and subsequent execution of a will. While signing the will creates a strong presumption that the will accurately represents the intentions of the testator, that presumption is a rebuttable one. Rockwell’s Appeal, supra; see Sansona v. Laraia, supra, 139; Atkinson, supra, 275-76; 1 Page, supra, 666.

The second objection is a fear that allowing extrinsic evidence of mistake will give rise to a proliferation of groundless will contests. There is no doubt that our increasingly fact-based jurisprudence serves to expose many apparently final dispositions to the juridical risk of unjustified judicial intervention. In the law of contracts, where the parol evidence rule has undergone considerable erosion, this risk has not been found to be unmanageable.1 In the law of wills, the risk is limited by the narrowness of the exception that this case would warrant. I would today do no more than permit the opponent of a will to introduce extrinsic evidence of the error of a scrivener, and would require proof of such an extrinsic error to be established by clear *27and convincing evidence. See Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 551 (1981).

In sum, I see no greater risk of juridical error in the ease of a scrivener’s error than in the case of fraud or undue influence. I find it difficult to draw a clear line of demarcation between a scrivener’s mistake and an innocent misrepresentation. I believe that the true interests of a testator are better protected by admitting rather than suppressing evidence of substantial third party interference with the formulation of a testamentary disposition. Wills that do not reflect the true intent of the testator should be refused probate.

In this opinion Shea, J., concurred.

Connecticut eourts at one time denied the admission of parol evidenee to prove mistake in all legal instruments, and not merely wills. See Noble v. Comstock, 3 Conn. 295, 299 (1820). One hundred years later, however, a more equitable standard had developed. Parol evidence is admissible to show that a written contract is affected by mistake. O’Hara v. Hartford Oil Heating Co., 106 Conn. 468, 473, 138 A. 438 (1927); see also 1 Restatement (Second), Contracts (1979) § 156.