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*********************************************** 
LANCE LAMBERTON ET AL. v. REARDEN

LAMBERTON ET AL.

(AC 42587)

Elgo, Bright and Flynn, Js.

Syllabus

The plaintiffs appealed to this court from the judgment of the Superior

Court, which affirmed the order of the Probate Court awarding the

defendant L, the nominated executor of the estate of the decedent, A,

legal fees incurred in the defense of A’s will, pursuant to statute (§ 45a294). The plaintiffs, who are the son and grandson, respectively, of A,

objected to L’s petition to admit A’s will to probate. On appeal to this

court, the plaintiffs claimed that the Superior Court erred in finding that

a nominated executor in a will not yet admitted to probate has standing

to seek reimbursement of legal fees prior to being appointed executor

by the Probate Court and abused its discretion in awarding legal fees

prior to a hearing on the merits of an objection to the will submitted

to probate. Held:

1. The Superior Court properly found that L had standing as the nominated

executor to request legal fees prior to the admission to probate of A’s

will: pursuant to § 45a-294, the Probate Court had jurisdiction to award

an executor expenses incurred in defending a will, even if that will

was not admitted to probate; moreover, the plaintiffs failed to identify

precedential authority supporting their contention that an executor must

be appointed by the Probate Court in order to have standing to seek

reimbursement of legal fees, and the plaintiffs’ suggestion that a nonappointment would strip the nominated executor of the right to seek

reimbursement of fees would render the critical language of § 45a-294

meaningless; furthermore, L had fiduciary duties both to file the will

with the Probate Court and to endeavor to procure its admission and,

thus, L’s duties were not inferior to those of an executor appointed by

the Probate Court.

2. The Superior Court did not abuse its discretion in awarding legal expenses

to L in the amount awarded by the Probate Court; the plaintiffs failed

to provide notice to the Superior Court, either in their stipulated facts

or their reasons for the appeal, that they were challenging the amount

of fees the Probate Court had issued, nor was the Superior Court

apprised that the plaintiffs sought a de novo hearing on the reasonableness of such fees.

Argued January 8—officially released May 5, 2020

Procedural History

Appeal from an order of the Probate Court for the

district of Stamford awarding legal fees to the named

defendant, brought to the Superior Court in the judicial

district of Stamford-Norwalk and tried to the court,

Hon. Kenneth Povodator, judge trial referee; judgment

affirming the Probate Court’s order, from which the

plaintiffs appealed to this court. Affirmed.

Terence J. Gallagher, with whom, on the brief, was

Patrick L. Poeschl, for the appellants (plaintiffs).

Paul Greenan, for the appellee (named defendant).
Opinion

FLYNN, J. The plaintiffs, Lance Lamberton and Roark

Lamberton-Davies, appeal from the Superior Court’s

judgment in a de novo appeal from an order of the

Probate Court for the district of Stamford awarding the

defendant Rearden Lamberton,1

the nominated executor,2

legal fees incurred in the defense of a will in Probate Court, pursuant to General Statutes § 45a-294. The

plaintiffs claim that the Superior Court (1) erroneously

found that a nominated executor in a will not yet admitted to probate has standing to seek reimbursement of

fees prior to being appointed as an executor by the

Probate Court while a will contest is pending and (2)

abused its discretion in awarding the fees prior to the

conclusion of a hearing on the merits of an objection

to the writing submitted to probate.

The Superior Court concluded that, ‘‘to the extent

that the parties effectively were seeking a declaratory

ruling as to the ability or standing of a [nominated]

executor to seek interim reimbursement of expenses

incurred in defending a will submitted to probate, prior

to its admission to probate, and the ability of the [nominated] executor to seek an allowance against future

expenses for that same purpose, all under the provisions of . . . § 45a-294, the court has determined that

notwithstanding the ongoing nature of the proceeding,

the [nominated] executor has standing and a right to

seek such reimbursement on an interim basis.’’ The

court further found that ‘‘the [nominated] executor also

has a right to seek an allowance against future expenses

for that same purpose.’’ The court also decided that

‘‘the plaintiffs either can be perceived to have conceded

(not challenged) the issue of reasonableness, or can be

deemed to have waived any claim of unreasonableness’’

of the legal fees awarded.

We conclude that the court properly decided that

§ 45a-294 permits the award of legal fees as a reasonable

expense incurred by a nominated executor to defend

a will prior to admission of the will to probate. We

further conclude that, in light of the reasons for appeal

to the Superior Court and the paucity of the stipulation

of facts, the court properly decided that the plaintiffs

waived or conceded the issue of their reasonableness.

The parties agreed to the following stipulation of

undisputed facts for the purposes of appeal to the Superior Court from the decree of the Probate Court: ‘‘Adelle

Lincoln Alessandroni died on December 23, 2016, and

was domiciled in the [judicial] district of [StamfordNorwalk] . . . at the time of her death. . . . [The

defendant] is Adelle Alessandroni’s grandson, and is the

executor named in her will. . . . On or about January

6, 2017, The Greenan Law Firm, LLC, on behalf of [the

defendant], filed a petition with the Stamford Probate

Court to admit Adelle Alessandroni’s will to probate.
. . . Lance Lamberton, who is the son of Adelle Alessandroni, objected to the will on various grounds. . . .

Roark Lamberton-Davies, who is the son of Lance Lamberton and grandson of Adelle Alessandroni, also joined

in making objections to the will. . . . Due to these

objections, [Adelle] Alessandroni’s will has not yet been

admitted, and litigation remains ongoing. . . . No

other wills have been submitted to the Probate Court.

. . . On August 14, 2017, [the defendant], through counsel, filed a motion for payment of attorney’s fees and

costs associated with defending the will in the Probate

Court. That motion was subsequently amended on September 12, 2017, to seek approval of $18,058 for all

attorney’s fees and costs to date. . . . On or about

August 15, 2017, [the defendant], through counsel, also

filed a motion for a trial retainer, seeking $35,000 to

defend the will in the pending will contest. . . . On or

about November 14, 2017, after a hearing that was not

on the record, the Stamford Probate Court, Fox, J.,

ordered the payment of $18,058 in attorney’s fees and

a $12,000 trial retainer to be paid to The Greenan Law

Firm, LLC, from assets of the estate.’’

The following procedural history also is relevant to

our analysis of this matter. On December 13, 2017, the

plaintiffs appealed to the Superior Court from the probate order granting the fees. Because the Probate Court

proceedings were not conducted on the record, the

appeal to the Superior Court was held de novo.3 On

January 23, 2019, the court, Hon. Kenneth Povodator,

judge trial referee, affirmed the Probate Court’s order,

awarding the defendant ‘‘$18,058 as reimbursement for

legal expenses incurred between January 3, 2017 and

September 12, 2017,’’ and ‘‘$12,000 to be used as a

retainer against future legal expenses to be incurred in

pursuing admission of the will to probate, such sums

to be paid out of the assets of the estate.’’ The plaintiffs

then filed this appeal to this court on February 11, 2019.

We note that, at the time of this decision, the underlying

will contest in the Probate Court is still ongoing.4 A

temporary administrator has been appointed by the Probate Court, for limited purposes, pending the outcome

of some of these issues.

I

We first address the plaintiffs’ claim that the court

erred in holding that the defendant had standing to seek

reimbursement of legal fees. They argue that, because

the defendant had not yet been appointed as executor

by the Probate Court, he did not have the right to seek

payment of his legal fees pursuant to § 45a-294. We

disagree.

A trial court’s determination of whether a party has

standing ‘‘is a conclusion of law that is subject to plenary review on appeal.’’ (Internal quotation marks omitted.) Heinonen v. Gupton, 173 Conn. App. 54, 59, 162

A.3d 70, cert. denied, 327 Conn. 902, 169 A.3d 794 (2017).
‘‘We conduct that plenary review, however, in light of

the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous.’’ (Internal quotation marks omitted.) Id. Additionally, the issues raised

in this appeal necessarily involve statutory interpretation, for which our review also is plenary. See, e.g.,

Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532

(2012).

Resolution of the standing issue rests on the interpretation of § 45a-294, the statutory provision that provides

for reimbursement of just and reasonable expenses in

a will contest. Section 45a-294 (a) provides: The court

of probate having jurisdiction of the testate estate of

any person shall allow to the executor his just and

reasonable expenses in defending the will of such person in the probate court, whether or not the will is

admitted to probate.’’ The parties disagree on how the

term ‘‘executor’’ should be interpreted, as no statutory

definition is provided either in subsection (a) of § 45a294 or in any other surrounding, relevant statutory provision. The plaintiffs argue that a nominated executor

of a contested will does not constitute an executor for

purposes of the statute. The defendant, on the other

hand, argues that the distinction between a nominated

and a court-appointed executor is immaterial for purposes of the expense reimbursement statute. For the

reasons that follow, we agree with the defendant.

Our Supreme Court has explained that ‘‘[t]he process

of statutory interpretation involves a reasoned search

for the intention of the legislature. . . . In other words,

we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts

of [the] case, including the question of whether the

language actually does apply. In seeking to determine

that meaning, we look to the words of the statute itself,

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter.’’ (Internal quotation marks omitted.)

Fleet National Bank’s Appeal from Probate, 267 Conn.

229, 237–38, 837 A.2d 785 (2004). ‘‘A fundamental tenet

of statutory construction is that statutes are to be construed to give effect to the apparent intention of the

lawmaking body. . . . Where the words of a statute

are clear, the task of a reviewing court is merely to

apply the directive of the legislature since where the

wording is plain, courts will not speculate as to any

supposed intention because the question before a court

then is not what the legislature actually intended but

what intention it expressed by the words that it used.

. . . When two constructions [of a term] are possible,

courts will adopt the one which makes the statute effective and workable . . . . [Further, a] statute should be

construed so that no word, phrase or clause will be

rendered meaningless.’’ (Citations omitted; internal
quotation marks omitted.) Verrastro v. Sivertsen, 188

Conn. 213, 220–21, 448 A.2d 1344 (1982). General Statutes § 1-2z instructs: ‘‘The meaning of a statute shall,

in the first instance, be ascertained from the text of the

statute itself and its relationship to other statutes. If,

after examining such text and considering such relationship, the meaning of such text is plain and unambiguous

and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered.’’

The plaintiffs argue that the text of § 45a-294 creates a

plain and unambiguous meaning of the term ‘‘executor’’

that requires that the individual officially be appointed

by the Probate Court, and, when there is an objection to

the will, such appointment can be made by the Probate

Court only after fully considering that objection.

Because the objection in this case had not yet been

resolved, the plaintiffs argue that the defendant cannot

be deemed an executor with standing to seek legal fees

for purposes of § 45a-294. The plaintiffs fail to cite to

any precedential authority, and we are unaware of any,

that directly supports their contention that an executor

must be appointed by the Probate Court in order to

have standing to recover expenses. Because the term

‘‘executor’’ is not defined by the text of the statute itself,

the plaintiffs urge us to ascertain the meaning of the

term ‘‘executor’’ in light of related statutes, namely,

those that invoke the role of a fiduciary.5

The plaintiffs rely on the definition of ‘‘fiduciary’’ set

forth in other sections of title 45a of the General Statutes

governing probate courts and procedure, including General Statutes §§ 45a-315 and 45a-340.6 We do not presume that the plaintiffs are arguing that these statutes

are invoked or are controlling here; instead, we interpret their argument to be that they should aid in the

interpretation of the term ‘‘executor’’ in the context at

issue in the present matter. The plaintiffs focus on the

nature of the roles that are included within the definitions of a ‘‘fiduciary’’ for purposes of the other statutes—i.e., administrator of an estate, conservators,

trustees—and suggest that, as compared to those other

roles, that of a nominated executor falls short in the type

of responsibilities involved. The plaintiffs, referring to

those other fiduciaries, argue: ‘‘These people have all

been authorized to protect a person or a fund. In turn,

they are responsible to the Probate Court in an accounting or report. Here the nominated executor does not

have that level of responsibility or accountability.’’ The

plaintiffs also look outside of the probate statutes and,

citing General Statutes § 52-555, assert that ‘‘in other

contexts, the definition of who may act on behalf of

an estate has been very narrow and strictly applied.’’

Essentially, the plaintiffs attempt to assert a policy argument that the defendant was not the type of individual

whom § 45a-294 intended to protect. During oral argument before this court, the plaintiffs made clear their
position that, as a nominated executor, the defendant

did not have the same fiduciary responsibilities as an

appointed executor. We are not persuaded.

The plaintiffs highlight the possibility that, due to the

objections pending in the Probate Court, the defendant

may never be appointed as the executor of the estate.

The plaintiffs fail to explain how this would deprive

the defendant of the opportunity to invoke § 45a-294.

The suggestion that a potential nonappointment would

strip the nominated executor of his right to seek reimbursement of legal fees would render the critical portion

of the statute—‘‘whether or not the will is admitted

to probate’’—meaningless. The language of the statute

explicitly provides that, even if the defense of the will

is unsuccessful and the will is not admitted to probate,

the nominated executor who defended the will, nonetheless, is entitled to reimbursement of legal fees. As

the court succinctly wrote, ‘‘[t]he contingency [the

plaintiffs] identify, then, is one specifically anticipated

and addressed by the statutory language.’’ We agree

with the Superior Court’s well reasoned analysis regarding this particular issue. ‘‘An executor can be appointed

by the Probate Court only after the will designating

that individual/entity as executor has been admitted to

probate. Therefore, admission of the will is effectively

a condition precedent to appointment of the executor.

If there is a successful challenge to the will being admitted to probate, there never will be an executor

appointed under the will. How then, can [t]he court of

probate having jurisdiction of the testate estate of any

person . . . allow to the executor his just and reasonable expenses in defending the will of such person in

the Probate Court if the will is not (has never been)

admitted to probate? Under the plaintiffs’ analysis, such

an ‘executor’ would never have standing because such

individual would never have been appointed

‘executor.’ ’’

The plaintiffs’ proposition also ignores the fact that,

during the pendency of the proceedings, the defendant

actively had been defending the will and expending the

necessary legal fees in order to do so. The defendant

argues that, as a nominated executor, he had a fiduciary

duty to offer and to defend the decedent’s will in the

admissions process even though he was not yet officially appointed by the Probate Court. During questioning from the appellate panel, the plaintiffs presented

an unpersuasive argument for why and how the defendant’s role as a nominated executor differed from that

of an individual who may have been appointed by the

Probate Court as executor.7 The plaintiffs made a general contention that a nominated executor may choose

to decline the nomination and, therefore, not have any

fiduciary responsibilities, but they failed to explain

how—in circumstances like those before us, where the

nominated individual has accepted the nomination and

taken on the corresponding responsibilities of
defending the will—the nominated executor’s responsibilities are inferior to those of an executor appointed

by the Probate Court.

It is ‘‘the duty of the executor named in a will to

present it for probate and endeavor to procure its admission, and this includes a right of appeal from a decision

of the [c]ourt of [p]robate refusing to admit it; however,

it is in no part of his duty to attack or take ground

against its validity.’’ Avery’s Appeal, 117 Conn. 201,

203–204, 167 A. 544 (1933), citing Belfield v. Booth, 63

Conn. 299, 309, 27 A. 585 (1893). A person cannot be

forced to ‘‘act as executor on the will of another against

his desire or by mere force of the circumstance that

the testator has nominated him to such office.’’ Kravitz

v. McCarthy, 14 Conn. Supp. 368, 372 (1946). If, however, he has possession of the will, a nominated executor must deliver it to the proper official of the court

of probate within thirty days, even if he impliedly or

expressly declines to serve as executor. See General

Statutes §§ 45a-282 and 45a-283 (a).8

If the nominated

individual is willing to serve as the executor of the will

in which he is named, he has a duty to ‘‘endeavor to

procure its admission.’’ Avery’s Appeal, supra, 203; see

also Sokar’s Appeal from Probate, 7 Conn. Supp. 196,

197 (1939). Here, the defendant was named executor

of the will by the decedent. He did not decline to act;

he offered the will’s admission to probate and has been

actively pursuing its admission. We, therefore, reject

the premise of the plaintiffs’ argument that the defendant had no fiduciary duties and would have no such

duties until and unless the will is admitted and the

Probate Court specifically appoints him as executor.

The defendant had duties imposed by statute and case

law both to file the will with the Probate Court and to

endeavor to procure its admission.

The plaintiffs also argue against the danger of prematurely awarding legal fees, because ‘‘[s]hould a nominated executor ultimately not become the executor due

to the sustaining of an objection, there is no mechanism

to recover any inadvisably advanced fees. The lack of

such a mechanism is a further indication that the statutes contemplate the awarding of fees after the Probate

Court hearing on the objection has been held.’’ (Footnote omitted.) We are not convinced.

Section 45a-294 (a) expressly provides for reimbursement of expenses whether or not the will is admitted

to probate. The statute reflects practical concerns. The

alternative—to require the nominated individual to

advance, out of his own funds, money for legal counsel

for proceedings that could last months or years, as is

the situation in the present case—is impractical. Section 45a-294 (a) provides that the court shall allow to

the executor his just and reasonable expenses in

defending the will in Probate Court. As the court stated:

‘‘Indeed, the very use of the term ‘executor’ in the statu-
tory language, applicable in the event of a successful

challenge to the will under which that individual was

[nominated] executor, necessarily means that the term

‘executor’ as used in this statute cannot mean only

an individual duly appointed by the Probate Court as

executor.’’ This proposition is bolstered by the public

policy concerns that are addressed by the statute.

A statute adopted by our legislature must be given

effect according to its terms unless it yields absurd or

unworkable results. See General Statutes § 1-2z.

Because a nominated executor who is willing to accept

appointment has certain fiduciary responsibilities to

offer the will for probate and to defend the will in the

probate process, we conclude that no absurdity results

from a court order, pursuant to § 45a-294, granting reimbursement of necessary and reasonable expenses in

defending the will in the admissions process. Nor is the

statute unworkable because a temporary administrator

has been appointed by the Probate Court who, upon

receipt of the court order, could have authority to pay

the sums authorized by the court. Therefore, we conclude that the court properly found that the defendant

had standing as the nominated executor to request legal

fees prior to admission to probate of the will nominating him.

II

We next address the plaintiffs’ claim that the court

improperly ordered the defendant’s claim for legal fees

paid in an amount found reasonable by the Probate

Court. ‘‘It is well established that we review the trial

court’s decision to award attorney’s fees for abuse of

discretion. . . . Likewise, when we review a trial

court’s decision to award fees to an executor, administrator or trustee, [t]he test is, has the court exercised

a reasonable discretion, or, in other words, is its exercise so unreasonable as to constitute an abuse of discretion. . . . This standard applies to the amount of fees

awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . .

Under the abuse of discretion standard of review, [w]e

will make every reasonable presumption in favor of

upholding the trial court’s ruling, and only upset it for

a manifest abuse of discretion. . . . [Thus, our] review

of such rulings is limited to the questions of whether

the trial court correctly applied the law and reasonably

could have reached the conclusion that it did. . . .

When determining whether the trial court used the

appropriate legal standard, our review is plenary.’’ (Citations omitted; internal quotation marks omitted.)

McGrath v. Gallant, 143 Conn. App. 129, 135, 69 A.3d

968 (2013).

Certain additional facts are necessary for a proper

understanding of this claim. The stipulation of facts

before the court stated that, on August 14, 2017, the

defendant, through counsel, filed a motion for payment
of legal fees and costs associated with defending the

will in the Probate Court. That motion subsequently

was amended to seek approval of $18,058 for all legal

fees and costs incurred to date. On August 15, 2017,

the defendant also filed a motion for a trial retainer

seeking $35,000 to defend the will in the pending will

contest. On or about November 14, 2017, after a hearing

that was not conducted on the record, the Stamford

Probate Court, Fox, J., ordered the payment of $18,058

in legal fees already incurred and a $12,000 trial retainer

to be paid to The Greenan Law Firm, LLC, from assets

of the estate. The reasons for appeal filed pursuant to

General Statutes § 45a-1869 and Practice Book § 10-7610

stated, in relevant part, that the Probate Court had

disregarded the explicit requirement that only a fiduciary has standing to file a motion for reimbursement

of attorney’s fees or for a retainer. The appeal to the

Superior Court then stated that the defendant was not

a fiduciary and, as such, did not have standing to file

a motion for legal fees. Further, it stated that ‘‘[i]t is

very possible that, due to the objections pending in the

Probate Court, [the defendant] may never be appointed

as the executor of the estate’’ and, because he had not

been named executor, he could not invoke § 45a-294

to seek reimbursement of fees. Nowhere in the reasons

for appeal of the probate decree to the Superior Court

is there any mention that the plaintiff sought to challenge the amount of the fees awarded by Judge Fox if

the court were to decide that an award of fees before

the will had been admitted to probate was proper.

The lack of reference to any challenge to the amount

of the fees awarded by the Probate Court resulted in

no notice to Judge Povodator that the amount of fees

was at issue if he were to decide that an allowance of

reasonable expenses in defending the will, including

legal fees, could be issued to the nominated executor

prior to the will having been admitted to probate and

the nominated executor being appointed by the Probate

Court. The concise stipulation of facts on which the

probate appeal was heard de novo before the court

mentioned only that the parties stipulated to the amount

that Judge Fox had awarded in the probate proceeding.

The reasons for appeal questioned only the defendant’s

standing to file a motion for legal fees, invoking § 45a294. Judge Povodator stated in his memorandum of

decision that ‘‘the reasons only relate to the legal issues

identified, focusing on the propriety of addressing the

issues and not how they were decided.’’ The court went

on to observe that it was ‘‘going to decide the case based

on the manner [in which] it was presented, whereby

the plaintiffs either can be perceived to have conceded

(not challenged) the issue of reasonableness, or can be

deemed to have waived any claim of unreasonableness.’’

On appeal to this court, for the first time, the plaintiffs, citing McGrath v. Gallant, supra, 143 Conn. App.
131, claim that, where there is no record made before

the Probate Court, the Superior Court must apply factors set forth in Hayward v. Plant, 98 Conn. 374, 385,

119 A. 341 (1923), and make an independent reasonableness determination with regard to the result reached by

the Probate Court. The plaintiffs claim that the Superior

Court erred in awarding legal fees before conducting

an evidentiary hearing on the merits upon an objection

to the validity of the will. The plaintiffs argue that the

Superior Court was required to make a determination

that the fees were just and reasonable, which could

not have occurred before the conclusion of such an

evidentiary hearing.

This might be so, had the plaintiffs alerted the court

that the issue of the reasonableness of the award was

a basis for the appeal, but neither the stipulation of

facts nor the reasons for appeal fairly alerted the court

that the amounts awarded by the Probate Court were

at issue. In response to a question from the appellate

panel at oral argument, the plaintiffs’ counsel stated,

‘‘we didn’t object to the dollar amounts, and we still

don’t object to the dollar amounts.’’ He then added that

the basis of their objection was that the awarding of

fees was made without an evidentiary basis from which

the Superior Court could have concluded that they were

just and reasonable.11 After review of the stipulation

and reasons for appeal filed with the Superior Court,

we conclude that the court was not apprised that the

reasonableness of the fees was at issue in the plaintiffs’

appeal to the Superior Court or that a de novo hearing

on the reasonableness of such fees was sought by

the plaintiffs.

The court, therefore, did not abuse its discretion in

awarding legal expenses in the amount awarded by the

Probate Court, once it had determined that § 45a-294

permitted such an award to a nominated executor prior

to a will being admitted to probate and the executor’s

formal appointment by the Probate Court.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Lance Lamberton, Roark Lamberton-Davies, Paul Greenan, and Sarah

Ripegno also were named as defendants in the Superior Court. Rearden

Lamberton, however, is the only defendant involved in this appeal. Accordingly, we refer to Rearden Lamberton as the defendant in this opinion.

2 Although the Superior Court used the term ‘‘designated’’ to refer to the

nomination of the executor, for consistency, we use the term ‘‘nominated’’

throughout this opinion.

3 When an appeal is taken from a judgment of the Probate Court to the

Superior Court, where there was no stenographic record in the Probate

Court, it is heard de novo. See Silverstein v. Laschever, 113 Conn. App.

404, 409, 970 A.2d 123 (2009).

4

In November, 2019, the defendant filed a motion with the Probate Court

seeking additional legal fees incurred between September 12, 2017 and July

25, 2019; the Probate Court granted the defendant an additional $35,000.

The plaintiffs, again, on December 11, 2019, appealed from the probate

decree to the Superior Court. See Lamberton v. Lamberton, Superior Court,

judicial district of Stamford-Norwalk, Docket No. FST-CV-20-6044866-S.

5 Relying on § 39.1 of the Probate Court Rules, which states in relevant

part that, ‘‘[o]n [a] motion [by] a fiduciary, the court may approve . . . a
proposed fee for services already rendered by the fiduciary or attorney,’’

the plaintiffs argued in their appeal to the Superior Court that the Probate

Court had disregarded the explicit requirement that only a fiduciary has

standing to make a motion for reimbursement of attorney’s fees or for a

retainer, and the defendant was not a fiduciary for purposes of this rule.

As the court properly noted, however, the Probate Court Rules are not

binding on the Superior Court. See Probate Court Rules § 2.2 (b) (‘‘[t]he

rules do not apply to appeals from probate in the Superior Court, matters

transferred from a Probate Court to the Superior COurt or any other probate

matter in the Superior Court’’). On appeal, it is unclear whether the plaintiffs

are arguing that § 39.1 of the Probate Court rules was implicated at the

Superior Court level and/or whether interpretation of the rule is relevant

to our decision in this matter. To the extent that the plaintiffs are arguing

that the rule is authoritative on the issue of standing, we disagree and decline

to address any arguments directed to the substantive application of the rule

(e.g., the court’s ejusdem generis analysis). We do recognize, however, a

potential argument that the rule, in concert with various statutes that define

the role of a fiduciary, is suggestive of, or aids in, the proper interpretation

of the term ‘‘executor’’ as used in § 45a-294.

6 General Statutes § 45a-315 provides in relevant part: ‘‘As used in sections

45a-129, 45a-205, 45a-242 to 45a-244, inclusive, 45a-273 to 45a-276, inclusive,

45a-315 to 45a-318, inclusive, and 45a-320 to 45a-334, inclusive . . . ‘fiduciary’ includes the executor or administrator of a decedent’s estate.’’

General Statutes § 45a-340 provides: ‘‘As used in sections 45a-340 to 45a347, inclusive, ‘fiduciary’ includes the executor or administrator of a decedent’s estate.’’

7 The following colloquy took place during oral argument before this court:

‘‘[The Plaintiffs’ Counsel]: So, in terms of going forward with the fiduciary

duties of a nominee, the nominee doesn’t have the same sort of requirement

to gather and manage an account . . . to the Probate Court like other

trustees, like an administrator, an executor, trustee, a guardian, [or] a conservator.

‘‘Judge Bright: Would you acknowledge, though, that the nominee does

have some fiduciary duties?

‘‘[The Plaintiffs’ Counsel]: I would say that the nominee’s duty is to propound the will, to take the writing to the Probate Court for probate.

‘‘Judge Bright: What about the handling of the assets until the will is

admitted to probate?

‘‘[The Plaintiffs’ Counsel]: They have no role. In fact, as Judge Povodator

found there is a temporary administrator in this case.

‘‘Judge Bright: Yes, but the temporary administrator had to be appointed.

So until the temporary administrator is appointed, from the death of the

decedent until the appointment of the temporary administrator, are you

saying the nominee has no fiduciary duty?

‘‘[The Plaintiffs’ Counsel]: If there is an objection, then they have no role

in the management of the assets.

‘‘Judge Bright: Before an objection is made. Before an objection is made,

from the time [of] death until anything happens in the Probate Court, is it

your position that that nominee has no fiduciary duty?

‘‘[The Plaintiffs’ Counsel]: Yes.

‘‘Judge Elgo: Do they have no duty to secure an attorney at all?

‘‘[The Plaintiffs’ Counsel]: To secure an attorney? No, they do not have

a duty to secure an attorney. In fact, many nominees decline to serve. It’s

not unheard of.

‘‘Judge Flynn: So, what do you see as the function of someone named in

the will as executor, can they simply walk away from any obligation to

support the admission of the will?

‘‘[The Plaintiffs’ Counsel]: They can and in some cases they do. The

nominee is someone who is set forth in a writing. There may be a successor

nominee, the court could ultimately determine that there is no written will,

and, despite whatever writing is propounded by a nominee, and appoint an

administrator. There are innumerable ways that this can turn out.’’

8 General Statutes § 45a-282 makes it a crime for any person to fail to

deliver a will or codicil in his possession ‘‘forthwith, after he has knowledge

of the death of the testator, . . . either to the person designated to be the

executor or one of the persons designated to be an executor thereof, or to

the judge, clerk or assistant clerk of the court of probate which by law has

jurisdiction of the estate of such deceased person.’’

Additionally, General Statutes § 45a-283 (a) provides that ‘‘[e]very person

having knowledge of his designation in a will as an executor of a testator’s
estate shall, within thirty days next after the death of the testator, apply

for probate of the will to the court of probate of the district where the

testator was domiciled at his death.’’ Subsection (b) also provides that a

fine of not more than $200 shall be imposed for failure to do so. General

Statutes § 45a-283 (b).

9 General Statutes § 45a-186 (a) provides in relevant part that ‘‘any person

aggrieved by any order, denial or decree of a Probate Court in any matter

. . . may . . . appeal therefrom to the Superior Court. Such an appeal shall

be commenced by filing a complaint . . . . The complaint shall state the

reasons for the appeal. . . .’’

10 Practice Book § 10-76 (a) provides in relevant part: ‘‘Unless otherwise

ordered, in all appeals from probate the appellant shall file reasons of

appeal . . . .’’

11 We recognize that this claim also could be interpreted as, effectively,

an extension of the plaintiffs’ first claim, challenging both the timing of and

the award of legal fees. The plaintiffs’ first claim was premised on the notion

that the court prematurely awarded the fees to the defendant, who had not

yet been named an executor. Here, the plaintiffs effectively are arguing

another ground upon which the court’s award was premature, namely, that,

without the evidentiary hearing on the objection, the executor’s legitimacy

cannot be determined. In their brief, the plaintiffs contend that ‘‘[t]he existence of an objection . . . should weigh heavily in the decision as to the

appropriateness and the ‘just and reasonable’ fees of an unsuccessful nominated executor. Here, the Probate Court and the objectant are not yet in a

position to determine if the position of one of the parties is frivolous or

not.’’ The plaintiffs seem to suggest through their line of reasoning that, if

the defendant ultimately is not appointed as executor, his efforts in defending

the will throughout the probate process could not be deemed just and

reasonable, or, at the very least, should be greatly reduced. Accordingly,

the plaintiffs argue, legal fees should not be awarded until after the objection

is heard and a determination is made as to whether the appointment of the

executor is valid.

This argument implicates the same concerns addressed in part I of this

opinion and warrants the same analysis. Therefore, to the extent that the

plaintiffs merely are challenging the timing of the award, we conclude that

the court did not abuse its discretion in granting the defendant’s motion

for legal fees before the conclusion of the evidentiary hearing.