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*********************************************** 
APPENDIX

ANDREW BASSFORD ET AL. v. FRANCES Z.

BASSFORD*

Superior Court, Judicial District of Middlesex

File Nos. CV-15-6012903-S and CV-15-6013338-S

Memorandum filed March 24, 2016

Proceedings

Memorandum of decision on plaintiffs’ appeals from

orders of Probate Court for district of Middletown

determining revocability of decedent’s trust, title to certain real property and admitting decedent’s will.

Appeals dismissed.

Carmine Perri and Taylor J. Equi, for the plaintiffs.

Joseph A. Hourihan, for the defendant.
Opinion

HONORABLE BARBARA M. QUINN, JUDGE TRIAL

REFEREE. In these two consolidated cases, the plaintiffs, Andrew and Jonathan Bassford and Zelda Alibzek,

have appealed from the admission of their father’s will

to probate and from the revocation of a trust as well

as the validity of a quitclaim deed thereafter executed

by the trustees, all in furtherance of their father’s estate

plan. They claim that they are aggrieved parties and that:

(1) the decedent, their father, Dr. William W. Bassford,

lacked testamentary capacity at the time of the execution of his last will and testament; (2) a trust Dr. Bassford had earlier established was irrevocable, and

therefore, its revocation was improper and of no effect.

The trust assets could therefore not properly be conveyed and become part of the decedent’s estate; (3)

that the decedent lacked the capacity to accept the

deed for property held in the purportedly irrevocable

trust; (4) and there was undue influence exerted by the

defendant, his surviving widow and their stepmother,

in securing the execution of the new will. For the reasons set forth in detail below, the court finds all issues

in favor of the defendant and dismisses these appeals.

I

BACKGROUND

From the reliable, probative and credible evidence,

the court finds the following facts. The defendant, Dr.

Bassford’s widow, is his third wife and at the time of

his death on February 19, 2014, Dr. and Mrs. Bassford

had been married for thirty-three years. The defendant,

Frances Bassford, became Dr. Bassford’s conservatrix

when he was involuntarily conserved in November

2011. Dr. Bassford’s three children are his children from

his first marriage, and by their conduct at trial, were

not close to their stepmother. Dr. Bassford executed a

will in 2006 in which the bulk of his estate was left to

his three children. On May 7, 2012, he executed a new

will in which he changed his estate plan to leave the

bulk of his estate to his wife, with certain articles of

personal property to two of his three children and some

of his grandchildren, and one dollar to his son, Jonathan. The will of May 7, 2012, was duly admitted to

probate, after findings made by Judge Marino that Dr.

Bassford possessed sufficient testamentary capacity to

execute the new will. He also found that the will was

executed with the necessary statutory formalities. In

addition, he determined that there was no evidence of

undue influence by Frances Bassford, as claimed by

Dr. Bassford’s children. This appeal ensued.

Additionally, Dr. Bassford’s children challenged the

revocation of the trust established by Dr. Bassford as

well as his acceptance of a deed to real estate from the

trustees. Judge Marino held the trust to be revocable

and that Dr. Bassford could receive the deed to the real
estate in Cromwell on which his home was located and

in which he resided. An appeal was taken to the Superior Court and the two appeals are now consolidated.

II

JURISDICTION AND AGRRIEVEMENT

When considering 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 powers, not of a constitutional court of general or common

law jurisdiction, but of a Probate Court.’’ (Internal quotation marks omitted.) State v. Gordon, 45 Conn. App.

490, 494, 696 A.2d 1034, cert. granted on other grounds,

243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed

October 27, 1998).

The trial court does not have ‘‘subject matter jurisdiction to hear an appeal from probate unless the person

seeking to be heard has standing. . . . In order for an

appellant to have standing to appeal from an order or

decree of the Probate Court, the appellant must be

aggrieved by the court’s decision. General Statutes

§ 45a-186 . . . . Aggrievement falls within two categories, classical and statutory. . . . Classical

aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest

of the appellant in the estate. . . . Statutory

aggrievement exists by legislative fiat which grants an

appellant standing by virtue of particular legislation,

rather than by judicial analysis of the particular facts

of the case. . . . It merely requires a claim of injury

to an interest that is protected by statute.’’ (Citations

omitted; internal quotation marks omitted.) Kucej v.

Kucej, 34 Conn. App. 579, 581–82, 642 A.2d 81 (1994),

overruled in part on other grounds by Heussner v.

Hayes, 289 Conn. 795, 807, 961 A.2d 365 (2008); see

also Marchentini v. Brittany Farms Health Center,

Inc., 84 Conn. App. 486, 490, 854 A.2d 40 (2004).

In this instance, Dr. Bassford’s three children would

have received a different and greater portion of their

father’s estate had the Probate Court ruled in their

favor. By its contrary ruling, each of Dr. Bassford’s

children is classically aggrieved. They each have standing to prosecute these appeals and the court has jurisdiction to hear these appeals.

III

FACTS AND DISCUSSION

A

Burdens of Proof, Due Execution of Will

And Testamentary Capacity

Our law provides that ‘‘[a]n appeal from probate is

not so much an appeal as a trial de novo with the
Superior Court sitting as a Probate Court and restricted

by a Probate Court’s jurisdictional limitations. . . . At

the trial de novo, a will’s proponent retains the burden

of proving, by a preponderance of the evidence, that

the will was executed in the manner required by statute.

. . . The proponent must prove anew that the will’s

execution was in compliance with the statute in effect

at the time it was executed. . . . To be valid, [a] will

must comply strictly with the requirements of [the]

statute. . . . Because the offer for probate of a putative

will is in essence a proceeding in rem the object of

which is a decree establishing a will’s validity against

all the world . . . the proponent must at least make

out a prima facie case that all statutory criteria have

been satisfied even when compliance with those criteria

has not been contested.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Gardner v.

Balboni, 218 Conn. 220, 225–26, 588 A.2d 634 (1991).

In this case, the proponent of the will is the defendant,

Mrs. Bassford. Connecticut General Statutes § 45a-251

governs the proper execution of a will and provides in

pertinent 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 . . . .’’ The facts

demonstrate unequivocally that Dr. Bassford’s attorney,

Attorney Annette V. Willis, brought two witnesses into

the home and Dr. Bassford signed the will in their presence. While on some points the witnesses’ subsequent

testimony by way of deposition transcripts reflects their

lack of detailed recall, such testimony is inadequate to

overcome both Attorney Willis’ direct testimony to the

events of that day as well as the contents of their sworn

affidavit on the bottom of the will that they state under

oath that they: ‘‘attested the within and foregoing Will

. . . and subscribed the same in his presence and at

his request and in the presence of each other; that the

said Testator signed, published and declare the said

Instrument as and for his Last Will and Testament in

our presence on this 7th day of May, 2012; and at the

time of the execution of said Will said Testator was

more than eighteen years of age, was able to understand

the nature and consequences of the document and was

under no improper influence or restraint to the best of

our knowledge and belief . . . .1

Contrary to Plaintiffs’ arguments, the will was properly executed in accordance with the statutory requirements. The court finds, from the relevant and probative

evidence, that the defendant has met her burden of

proof of the due execution of the will.

The proper execution of Dr. Bassford’s will is only

the first of the plaintiffs’ several challenges to the will’s

effectiveness and admission to probate. The major issue

in this appeal is Dr. Bassford’s capacity to make a will.

General Statutes § 45a-250 provides that: ‘‘Any person
eighteen years of age or older, and of sound mind, may

dispose of his estate by will.’’ ‘‘The burden of proof in

disputes over testamentary capacity is on the party

claiming under the will.’’ Stanton v. Grigley, 177 Conn.

558, 564, 418 A.2d 923 (1979). The defendant in this

case has this burden as well.

‘‘What constitutes testamentary capacity is a question

of law. . . . To make a valid will, the testatrix must

have had mind and memory sound enough to know and

understand the business upon which she was engaged,

that of the execution of the will, at the very time she

executed it. . . . Whether she measured up to this test

is a question of fact for the trier.’’ (Citations omitted.)

City National Bank Trust Co.’s Appeal, 145 Conn. 518,

521, 144 A.2d 338 (1958).

Our law provides that it is a testator’s capacity at

the time of the will execution that is relevant. ‘‘The

fundamental test of the testatrix’s capacity to make a

will is her condition of mind and memory at the very

time when she executed the instrument. . . . While in

determining the question as to the mental capacity of

a testator evidence is received of his conduct and condition prior and subsequent to the point of time when it

is executed, it is so admitted solely for such light as it

may afford as to his capacity at that point of time and

diminishes in weight as time lengthens in each direction

from that point.’’ (Citations omitted.) Jackson v. Waller,

126 Conn. 294, 301, 10 A.2d 763 (1940).2

The decedent, Dr. Bassford, as the medical evidence

and other testimony demonstrates, was a person who

suffered from severe anxiety and depression as well as

post-traumatic stress disorder from his service in World

War II. None of the parties dispute that he suffered

from some mild to moderate dementia, had impaired

hearing and was susceptible to frequent urinary tract

infections from his Foley catheter, which had been in

place for over nineteen years at the time of his death.

Due to the drug treatment Dr. Bassford received for

anxiety, he became dependent on benzodiazepine, specifically Lorazepam.3 The use of this drug is known to

cause some impairment of general cognitive function,

as well. When he suffered from urinary tract infections,

he would become delirious and require hospitalization.

Treatment with antibiotics stabilized him quickly and

he returned to his former functioning state.

Dr. Bassford became concerned about the distribution of his monthly Veterans Administration pension

payments and his estate in 2011. The defendant in these

appeals, Mrs. Bassford, then commenced an involuntary

conservatorship proceeding to have Dr. Bassford conserved. Attorney Willis was appointed to represent Dr.

Bassford in October, 2011, by the Probate Court. She

had not met him prior to her appointment by the court.

From Attorney Willis’ testimony, the court finds that
in October of 2011, when she met him, Dr. Bassford was

eloquent, well-spoken and coherent. He was oriented

as to place and time. He was upset that his pension

payments were going to his children. He was able to

ask relevant and reasonable questions about the conservatorship. The court finds that Dr. Bassford was

informed about the types of conservatorship possible,

voluntary and involuntary. His counsel affirmed she

was aware that he had memory deficits and anxiety

and did not like to leave his home. Nonetheless, he was

clear he wanted his wife to have full authority over his

affairs and to help him secure his pension payments.

When his counsel met with Dr. Bassford, after the preliminary social niceties, she met alone with Dr. Bassford. The defendant did not participate in the

discussions and was not in the room when Attorney

Willis and Dr. Bassford discussed his legal affairs and

his pension payments.

Andrew Bassford testified to the fact that his father,

at the time the veteran’s pension benefits had earlier

commenced, wanted his children to receive those benefits as they came from a time when he had not yet

married the present Mrs. Bassford. There was some

indication that at the commencement of the payments,

they were deposited into Dr. Bassford’s bank accounts

and then distributed to his children. By 2011, these

benefits were being deposited into accounts no longer

under Dr. Bassford’s control.

At the time of the conservatorship, the court finds,

such distributions were no longer what he desired. Even

if, as the plaintiffs claim, there was tension between

the family members and between Dr. Bassford and his

wife,4

there was ample opportunity for him to request

different actions from his attorney, during their private

meetings. He never did so, despite having multiple

appointments with her. He emphasized how upset he

was with his son, Jonathan, and his conduct. From this,

the court finds, that his wishes at the time in question

were as stated to his attorney. He wanted his veteran’s

pension to be paid into his own accounts for his use.

In due course, the pension payments were rerouted

from Dr. Bassford’s children to Dr. Bassford’s accounts.

During the time of the proceedings leading up to the

conservatorship, Dr. Bassford informed Attorney Willis

about his desire to change his will and the distribution

of his estate. Once the conservatorship was completed,

and over the course of the next several months after

the conservatorship was granted, Attorney Willis began

her work to carry out his wishes. There were at least

three meetings for his lawyer to go over his estate plan

and conduct a detailed review of his assets with him.

It was during this time that Attorney Willis came to

understand that there was a trust containing his interest

in the home in which the Bassfords resided in addition

to a retirement account. Dr. Bassford’s statements of
his wishes regarding his estate remained consistent

over these months and at each meeting with Attorney

Willis. He never wavered or was confused about his

desires. He was focused on adequately providing for

his wife.

Dr. Bassford and Attorney Willis had a meeting in

March, 2012, in his home. She spoke with him in detail

about his assets and what he wanted to happen in his

will and his general estate plan. At that time and earlier,

he was and had been insistent that his son Jonathan only

receive one dollar. Dr. Bassford wanted his treasured

antiques to go to his other two children and some of

his grandchildren. Subsequently, after the March

appointment, Dr. Bassford and Mrs. Bassford prepared

a list of those items of personal property, as Dr. Bassford’s handwriting was a bit shaky. Attorney Willis

reviewed that list with him in detail and had him sign

it at their next meeting on April 26, 2012. The list5 clearly

specifies what is to be distributed and to whom and

the last page is in his handwriting. In addition, on that

day Dr. Bassford wrote out and signed a note indicating

he only wished his son Jonathan to receive one dollar

upon his death.6 The court finds that the list and note

represented Dr. Bassford’s personal wishes.

Next, Dr. Bassford’s general mental condition was

evaluated, at Attorney Willis’ request, by a psychiatrist,

Dr. Jay A. Lasser, who subsequently issued a report

and testified at the probate hearing as well as at trial.

Dr. Lasser met with Dr. Bassford on April 26, 2012, and

conducted a formal clinical interview. He previously

had access to and had reviewed Dr. Bassford’s extensive medical history. He confirmed that Dr. Bassford

had dementia, which was a slowly progressive and

ongoing condition. He found Dr. Bassford to have memory deficits and, determined from recent medical

records, that he had had episodes of delirium when he

had urinary tract infections.7 Dr. Lasser found that when

Dr. Bassford’s infections were treated, he returned to

lucidity quickly. He found the episodes of infectioninduced delirium had no residual impact on his baseline

cognitive level, which he admitted was impaired. He

agreed that Dr. Bassford’s functioning fluctuated significantly from time to time, but that when he was well

and not in the throes of an infection, he functioned at

a stable level. In his professional psychiatric opinion,

Dr. Bassford possessed the cognitive ability to know

the nature and extent of his assets and what he wanted

to have done with them.

On May 7, 2012, Dr. Bassford met with his counsel,

Attorney Willis, and reviewed his will, the list of personal property contained within the will, his decision

to leave his son Jonathan only one dollar and the other

details of his will. He also reviewed his health care

directive and independently noted some errors when

it was presented to him. He corrected those errors him-
self, and initialed them. He then signed his will and the

directive in front of two witnesses and Attorney Willis

took his acknowledgment and signed the self-proving

affidavit of the witnesses. From Attorney Willis’ testimony, the court finds that he was functioning at his

normal level on that day, that he was well-spoken, lucid

and aware of the time and place. He understood her

questions and directions. He knew the nature and extent

of his estate and how he wanted it distributed. Those

statements and wishes were consistent with those he

had expressed in the months leading up to the execution

of his last will and testament.

Plaintiffs called a psychiatric expert, Dr. Harry E.

Morgan, who reviewed Dr. Bassford’s extensive multiyear medical records, but did not meet with him personally. In general, his opinion was that Dr. Bassford did

not have sufficient capacity to execute a will. He particularly focused on the impairments to his executive functions and the tests which demonstrated his deficits. Dr.

Morgan’s expert testimony, despite his evident expertise, is not persuasive on this conclusion, the court

finds, based both on his lack of opportunity to personally observe Dr. Bassford and his testimony about the

actions Dr. Bassford took on the day of the will execution. Dr. Morgan admitted that, if Dr. Bassford was able

to make independent, unsolicited corrections to a legal

document on the day of his will execution, then at that

time, he possessed sufficient mental capacity to execute

his will. The court has specifically found that he made

such independent corrections to his health care directive on that day. Attorney Willis’ testimony and the

document reflect those independently made corrections.8 Dr. Morgan’s admissions are further evidence

and support for the conclusion that Dr. Bassford knew

and understood what he was about at the time he signed

the will on May 7, 2012. The court finds, from all of the

evidence, that Dr. Bassford, on May 7, 2012, had the

requisite mental capacity to understand what he was

signing. He knew the nature and extent of his estate

and how he wanted his last will and testament to distribute that estate upon his death.

B

Nature of Trust and Its Revocation,

Mental Capacity to Revoke

1

Nature of Trust and Revocation

The next legal task to be completed on Dr. Bassford’s

behalf was the revocation of the trust Dr. Bassford had

established, so that terms of his estate plan, as he had

outlined those wishes to Attorney Willis, could be

accomplished. Plaintiffs first claim that it was not a

revocable trust. Dr. Bassford established a trust on July

7, 2006 labeled the ‘‘William W. Bassford Irrevocable

Trust.’’ That trust, however, contained an Article Two,
which specifically states that: ‘‘[n]otwithstanding anything herein contained, the Settlor explicitly reserves

the following powers . . . 5. [t]o revoke this trust

. . . .’’ While the plaintiffs argue that the title of the trust

should control, rules of the construction of contracts

indicate otherwise.

In general, it is hornbook law that where the language

of the contract is clear and unambiguous, the contract

is to be given effect according to its terms. ‘‘[W]here

there is definitive contract language, the determination

of what the parties intended by their contractual commitments is a question of law.’’ (Internal quotation

marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas

Transmission System, L.P., 252 Conn. 479, 495, 746

A.2d 1277 (2000). ‘‘[T]he intent of the parties is to be

ascertained by a fair and reasonable construction of

the written words and . . . the language used must be

accorded its common, natural, and ordinary meaning

and usage where it can be sensibly applied to the subject

matter of the contract. . . . Where the language of the

contract is clear and unambiguous, the contract is to

be given effect according to its terms. A court will not

torture words to import ambiguity where the ordinary

meaning leaves no room for ambiguity . . . . Similarly,

any ambiguity in a contract must emanate from the

language used in the contract rather than from one

party’s subjective perception of the terms.’’ (Internal

quotation marks omitted.) Id., 498.

In this trust, there is a conflict between the label used

in the title ‘‘Irrevocable’’ and the direct provisions in

Article Two. The rule has long been established that:

‘‘If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals

are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the

operative part are clear, but they are inconsistent with

each other, the operative part is to be preferred.’’ (Internal quotation marks omitted.) Wilson v. Towers, 55 F.2d

199, 200 (4th Cir. 1932).

The plaintiffs argue that the recital, that is to say

the word ‘‘Irrevocable’’ in the title of this trust, should

control. Such a construction would defeat the more

detailed and operative terms of Article Two and therefore, the court finds, that the more detailed provisions

more consistently carry out the settlor’s intent and

wishes, namely that he should be able to revoke the

trust at his discretion. The court interprets and construes the trust to effectuate that intent and finds that

it is a revocable trust.9

2

Mental Capacity to Revoke Trust

Next, plaintiffs challenge Dr. Bassford’s mental

capacity to revoke the trust. While separate from the

issue of testamentary capacity, these claims raise simi-
lar issues, although on such claims the plaintiffs have

the burden of proof. The law on taking any action with

respect to a trust requires the individual taking such

action to have the mental capacity to undertake business. Such action requires a greater capacity than the

ability to make a will. As noted in Kunz v. Sylvain, 159

Conn. App. 730, 123 A.3d 1267 (2015), a case with many

similarities to the present case, there were two different

standards for signing a will and taking action with

respect to a trust. Kunz quoted Deroy v. Estate of

Baron, 136 Conn. App. 123, 127, 129, 43 A.3d 759 (2012),

that a person may have the mental capacity necessary to

make a will although incapable of transacting business

generally. See also Turner’s Appeal, 72 Conn. 305, 44

A. 310 (1899). In Kunz, the court reviewed the task

required of the settlor of the trust in amending it and

found it was a simple matter. It held that the requisite

mental capacity under the higher standard had been

established.

A review of the relevant facts reveals that on June

14, 2012, Dr. Bassford was psychiatrically hospitalized

at the Institute of Living. He was feeling more ‘‘anxious

and more depressed over the past few weeks prior to

admission’’ and ‘‘stated he was experiencing suicidal

ideations.’’10 The discharge note goes on to say that

during the course of his stay, ‘‘[t]he patient was alert

and oriented x3, but sometimes would become easily

confused with multiple stressors and multiple parts

of information.’’11

When Attorney Willis came to visit Dr. Bassford at

the Institute, she brought her husband with her as a

witness. She testified that, on that day, she had a question and answer session with Dr. Bassford that lasted

approximately twenty minutes. He was alert and not

confused. She had advised Dr. Bassford that execution

of the trust revocation awaited his discharge. Nonetheless, Dr. Bassford wanted to proceed and put the whole

matter behind him as he knew that the will would not

have the effect he intended without the revocation. He

instructed her to proceed, despite her cautions. She

recalled that she had reviewed the trust terms with him

from memory and certainly the right to revoke the trust.

On June 20, 2012, Dr. Bassford signed the revocation

as well as his wife, Frances Bassford. Attorney Willis

took their acknowledgments. Mrs. Bassford also testified to his functioning on that day and confirmed Attorney Willis’ account of Dr. Bassford’s lucidity.

The court finds that Dr. Bassford was functioning at

his normal level on that day, and understood what he

was about. The plaintiffs argue and stress that Dr. Bassford was not capable of making such a decision with

the level of cognition and understanding required. Dr.

Morgan, the plaintiffs’ expert had testified that Dr. Bassford had ever increasing dementia and impairment of

his executive functions, as well as acalculia, the inability
to deal with numbers involving even a moderate level

of complexity. And the Institute of Living discharge

note of July 3, 2012, also talks about Dr. Bassford’s

rising levels of confusion with ‘‘multiple stressors and

multiple parts of information.’’12

Nonetheless, the court finds that the task required

of Dr. Bassford on that day in June, 2012, had been

discussed and contemplated by him over the course of

more than three months and his desire to complete his

estate plan had not wavered or changed in any way.

There were not ‘‘multiple stressors or multiple parts of

information’’ for him to process with respect to the

revocation of his trust. This was a simple task which

did not require complex or interrelated decisions or

numerical calculations. He simply needed to indicate

his desire to revoke his trust. There were no facts in

support of a finding that Dr. Bassford was confused

about what was happening.

Plaintiffs stress that Attorney Willis failed to review

with Dr. Bassford all relevant terms of the trust or bring

the trust with her on that day. Specifically, they cite

the need to review with him Articles Two, Three, Four

and Thirteen.13 The court begs to differ. All Dr. Bassford

needed to know was his lawyer’s opinion and her basis

for concluding that the trust was revocable and what

was necessary for him to do; that is as settlor, state his

reasons for revoking the trust, revoke the trust and also

request that his trustees take such action. As Kunz

v. Sylvain, supra, 159 Conn. App. 730, suggests, the

complexity of the task at hand is of relevance in the

determination about a person’s required level of functioning. On June 20, 2012, it is apparent, and the court

finds, that Dr. Bassford clearly understood what was

required and what task he was undertaking. It was a

simple matter. He was not confused or uncertain but

had been independently determined, even while so hospitalized, to proceed with this action and complete his

estate plan. The court finds he had the greater mental

capacity legally required to undertake this transaction.

The last steps to complete the transaction were

required of Dr. Bassford’s trustees. His trustees, William

Long and Henry L. Long, Jr., were two longtime friends

of Dr. Bassford’s from his childhood.14 Dr. Bassford had

earlier requested that his counsel contact them about

his wishes. This Attorney Willis accomplished by letter

and the Long brothers visited Dr. Bassford while he

remained at the Institute of Living. Each of them stated

that Dr. Bassford appeared his normal self and was able

to carry on a conversation with them. According to

Henry Long, Jr., when Dr. Bassford said what he

wanted, he was going to do it, as this was his best

friend. William Long testified, when questioned about

the detailed recitals in the revocation instrument, he

did not now recall, but that he would not have signed

the document if the statements were not true. The recit-
als in the instrument are that Dr. Bassford requested

the revocation of the trust, that he wished the real

property contained in the trust to be reconveyed to

him, that the Longs had personally conferred with Dr.

Bassford and that they had read Dr. Lasser’s report

concerning Dr. Bassford’s capacity to make a new will.15

At trial in December, 2015, Henry Long recalled the

letter sent to him by Attorney Willis and that it contained

other information which he believed he must have

read.16 They subsequently signed the trust revocation

some days after their visit with Dr. Bassford.

From the testimony of the Long brothers, Attorney

Willis’ testimony, the simple nature of the actions

required, Dr. Bassford’s awareness of the important

connection of this document to his estate, as well as

his sense of urgency on June 20, 2012, the court finds

that Dr. Bassford had the requisite mental capacity to

properly revoke the trust he had established in 2006.

The plaintiffs’ claims must fail, as they have not met

their burden of proof.

C

Ability to Accept Deed

There remains the issue of Dr. Bassford’s status as a

conserved person, which implicates his ability to accept

the deed from his trustees conveying the revoked trust’s

interest in the real estate to him. As a preliminary matter, it is interesting to note that the probate decision

by Judge Marino of November 21, 2014, holds that the

involuntary conservatorship did not remove Dr. Bassford’s right to take action with respect to his trust or

to accept title to real estate.17 Specifically, he stated

that the issue of ‘‘Dr. Bassford’s capacity to authorize

revocation of the Trust and to accept a conveyance of

property from the Trust is covered by [§] 45a-650 [(c)] of

the Connecticut General Statutes. ‘A conserved person

shall retain all rights and authority not expressly

assigned to the conservator.’ ’’ Those rights, he notes,

were not specifically assigned to the conservator. The

court agrees and finds that Dr. Bassford retained such

rights and could, despite being a conserved person,

request that the trustees revoke the trust and revoke

it himself. Further, he could request they convey real

estate to him.

Plaintiffs cite Connecticut General Statutes § 45a-653

in support of their proposition that Dr. Bassford could

not accept the real property conveyed to him. The court

finds this statutory section to be inapposite since it

concerns conveyances of property by the proposed conserved or conserved person, not the situation before

the court. The public policy of this statute is to protect

a conserved person from depleting his or her assets,

not adding to them, as results from the acceptance

of a deed to property. Certainly, the specific right for

trustees to convey property is set forth in the Connecti-
cut Fiduciary Powers Act, General Statutes § 45a-234

(2). The court concludes there is no prohibition against

a conserved person receiving title to real property from

another source. Plaintiffs have not prevailed on this

claim.

4

Undue Influence

Plaintiffs also claim that the defendant exerted undue

influence in getting Dr. Bassford to sign a will leaving

the bulk of his estate to her. The burden of proof on this

issue remains with the plaintiffs. The law provides that:

‘‘Undue influence is the exercise of sufficient control

over a person, whose acts are brought into question,

in an attempt to destroy his [or her] free agency and

constrain him [or her] to do something other than he

[or she] would do under normal control. . . . It is

stated generally that there are four elements of

undue influence:

‘‘(1) a person who is subject to influence;

‘‘(2) an opportunity to exert undue influence;

‘‘(3) a disposition to exert undue influence; and

‘‘(4) a result indicating undue influence. . . .

‘‘Relevant factors include age and physical and mental condition of the one alleged to have been influenced,

whether he [or she] had independent or disinterested

advice in the transaction . . . consideration or lack or

inadequacy thereof for any contract made, necessities

and distress of the person alleged to have been influenced, his [other] predisposition to make the transfer

in question, the extent of the transfer in relation to his

[or her] whole worth . . . failure to provide for all of

his [or her] children in case of a transfer to one of them,

active solicitations and persuasions by the other party,

and the relationship of the parties.’’ (Citations omitted;

internal quotation marks omitted.) Pickman v. Pickman, 6 Conn. App. 271, 275–76, 505 A.2d 4 (1986). See

also Lee v. Horrigan, 140 Conn. 232, 237, 98 A.2d 909

(1953).

While it is true that Mrs. Bassford was Dr. Bassford’s

conservatrix, it has not been demonstrated that Dr.

Bassford was a person subject to such influence nor

susceptible to it. While Mrs. Bassford was in a position

to exert such influence, the testimony of Attorney Willis

and her independent observations of Dr. Bassford demonstrate that such influence was not exerted. Dr. Lasser

also testified to the fact that Dr. Bassford was aware

of his situation and clear about his wishes. There is no

direct evidence of undue influence, and to the extent

it may exist, it is inferential in nature; merely by the

position of these parties as husband and wife in the

twilight of their lives.

Direct evidence of undue influence is often not avail-
able and is not indispensable. See Salvatore v. Hayden,

144 Conn. 437, 440, 133 A.2d 622 (1957). But the mere

opportunity to exert undue influence is not alone sufficient. There must be proof not only of undue influence

but that its operative effect was to cause the testator

to make a will which did not express his actual testamentary desires. Hills v. Hart, 88 Conn. 394, 402, 91 A.

257 (1914). On all these points, the plaintiffs have failed

to meet their burden of proof. There simply is no evidence. Their suspicions alone are not enough. On this

claim, the court also finds for the defendant.

ORDERS

For all of the foregoing reasons, the plaintiffs’ claims

fail and the appeals are dismissed.

* Affirmed. Bassford v. Bassford, 180 Conn. App. 331, A.3d (2018).

1 Exhibit A and Exhibit 71, copies of Dr. Bassford’s Last Will and Testament, dated May 7, 2012.

2

It is for these legal reasons, that most of Dr. Bassford’s medical records

dating from 2006 through 2011 are not highly relevant to the issue of his

testamentary capacity on May 7, 2012. They are all simply too remote in time.

3 Many exhibits concerning Dr. Bassford’s medical condition were introduced, which detailed his various conditions including his medication history, starting from 2006 forward. Those records reflect that on a number

of occasions, his doctors attempted to reduce his Lorazepam dosage and

dependence, with resulting significant increases in his anxiety levels. Each

such attempt ended when his treaters reluctantly acquiesced in his use of

this drug at the dosages required to keep him calm and stable.

4 The plaintiffs point to multiple medical records documenting such tension during times of medical stress, delirium and disorientation, as though

such reports were the only correct and ‘‘true’’ evidence of Dr. Bassford’s

desires. They ignore and choose to discount all independent evidence of

Dr. Bassford’s expression of his desires on multiple occasions when he was

alert and functioning well. Logically, they cannot have the evidence to

support two such inconsistent notions, correct for purposes of demonstrating undue influence and that his ‘‘true desires’’ were not to benefit his

wife, and on the other hand, that such delirium and reduced functioning is

evidence of his lack of testamentary capacity and capacity to revoke his trust.

5 See Exhibit 34, signed on April 26, 2012.

6 Exhibit 62, dated April 26, 2012.

7 While plaintiffs make much of the differences of opinion between the

two experts, Dr. Jay A. Lasser and Dr. Harry E. Morgan, about the meaning

of the word ‘‘pseudo-dementia,’’ the court finds the insistence on one expert’s

definition over the other to have no particular weight in these proceedings.

An expert is entitled to his definition as he uses it and it is that expert’s

use of the term that controls.

8 See notations on Exhibit D, with Dr. Bassford’s initials on all the corrections.

9 The court has reviewed and notes the cases and statutes on which the

plaintiffs rely in support of their argument that this is an irrevocable trust.

Having determined the trust is revocable, the court does not review such

cases and law further.

10 Exhibit 93, Discharge Summary, Institute of Living, July 3, 2012, page 1.

11 Ibid., page 2.

12 Exhibit 93, Discharge note of July 3, 2012, Institute of Living, page 1.

13 See Exhibit 10 and the relevant articles set forth therein.

14 Each of them testified that they had known Dr. Bassford for more than

eighty years.

15 See Exhibit 89, signed by the Longs on June 25, 2012, before a notary.

16 Exhibit 75, Letter dated May 18, 2012, which contains the information

referenced sent by Attorney Willis to Henry and William Long.

17 Both Probate Court decisions are attached to the respective complaints

filed by the plaintiffs in these appeals, and as such, are judicial admissions.