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EN THE COURT OF COMMON PLEASPROBATE DIVISION

LORAIN COUNTY, OHIO

IN RE:

ESTATE OF:

JAVIER CASTRO, DECEASED

aLOR.A111 couNrt. OHIO

COURT OF COMMON PLEASPRCBATE DIVISION

613 JUN 19 P11 1 23JAMES T. WALTHER

JUDGE

) CASE NO.: 2013ES00140

) JUDGE JAMES T. WALTHER

) JUDGMENT ENTRY)

This matter came before the Court upon the Application to Probate Will and Application

for Authority to Administer Estate filed by Miguel Castro. Hearing was held before the Court on

June 18, 2013.

This case concerns the creation and introduction on an electronic will. It appears to he a

case of first impression in the State of Ohio.

The facts are as follows:

In late December 2012, Javier Castro presented at Mercy Regional Medical Center in

Lorain, Ohio. He was told by medical personnel that he would need a blood transfusion. For

religious reasons, he declined to consent to the blood transfusion. He understood that failure to

receive the blood transfusion would ultimately result in his death.

On December 30, 2012, Javier had a discussion with two of his brothers, Miguel Castro

and Albie Castro, about preparing a will. Because they did not have any paper or pencil, Albie

suggested that the will be written on his Samsung Galaxy tablet. The Court is aware that a

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"tablet", is a one-piece mobile computer.' Tablets typically have a touchscreen, with finger or

stylus pen gestures replacing the conventional computer mouse. Albie had owned the tablet

for a couple of months prior to the date in question. Albie's Samsung Galaxy tablet has a

program or application called "S Note" that allows someone to "write" on the tablet with the

stylus pen. The program then allows the writing to be preserved or saved exactly as the person

has written it.

Miguel and Albie both testified that Javier would say what he wanted in the will and

Miguel would handwrite what Javier had said using the stylus. Miguel and Albie both testified

that each section would be read back to Javier and that the whole document was also read back to

Javier. Testimony was had that Javier, Miguel and Albie had discussions concerning each and

every paragraph in the will. Before he could sign the will, Javier was transported to the

Cleveland Clinic in Cleveland, Ohio.

Miguel testified that later that same date, at the Cleveland Clinic, Javier signed the Will

on the tablet in his presence. Albie also testified that Javier signed the will in his presence. Oscar

DeLeon, nephew of Javier, arrived shortly thereafter and became the third witness to the will.

Oscar testified that he did not see Javier sign the will, rather Javier acknowledged in his presence

that he had signed the will on the tablet.

A fter the will was executed, Albie retained possession of the tablet that contained the

will. Albie testified that the tablet is password protected and has been in his continuous

possession since December 30, 2012. Miguel and Albie testified that the will has not be altered

in any way since it was signed by Javier on December 30, 2012. Both testified that the paper

copy of the will presented to the Court on February 11, 2013 is an exact duplicate of the will in

the tablet that was prepared and signed on December 30, 2012.

The Judge received a tablet as a Father's Day gift on 6/16/13.

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Javier, Miguel, Albie and Oscar were all over 18 years of age on December 30, 2012.

Miguel, Albie and Oscar all testified that on December 30, 2012, Javier was of sound mind and

memory and under no restraint. Specifically, testimony was had that Javier knew who his family

members were, who his heirs were and what was the extent of his assets.

Dina Cristin Cintron, niece of Javier, testified that Javier told her that he had signed the

will on the Samsung Galaxy notebook. Similar testimony was also received from Marelisa

Leverknight and. Steve Leverknight, that Javier told them he had signed the will on the tablet and

that it contained his wishes.

Javier died on January 30, 2013.

On February 11, 2013, the Application to Probate Will and Application for Authority to

Administer Estate were filed by Miguel Castro. On that same date, Miguel also presented a copy

of a will purported to be signed by Javier. The will consists of three pages. The first two pages

indicate that the will is the last will and testament of Javier Castro and has eleven numbered

paragraphs. The eleven numbered paragraphs contain the naming of Miguel as Executor,

dispositions of Javier's property along with instructions to the Executor. The copy of the will has

a green background, with lines and black writing. It looks like a green legal pad.

The third page contains the signature of Javier Castro along with the signatures of

Miguel, Albie and Oscar.

If the will were to be declared invalid, Javier's estate would pass by intestate succession

under R.C. 2105.06. Javier had no lineal descendents. In this case, Benjamin Castro, Sr. and

Maria Castro, Javier's father and mother, respectively, would inherit his estate. Benjamin Castro,

Sr. and Maria Castro did not personally appear at the hearing on June 18, 2013. Instead,

Attorney Deanne Robison appeared on behalf of Mr. and Mrs. Castro and stated that they did not

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contest the admittance of the will. Attorney Robison further stated that if the will were to be

declared invalid, her clients would still distribute the assets according to Javier's wishes as stated

in the will.

Law and Decision

R.C. 2107.02 provides: "A person who is eighteen years of age or older, of sound mind

and memory, and not under restraint may make a will." It uncontroverted from the testimony that

Javier was over 18 years of age, was of sound mind and memory and not under any restraint to

make this will. The medical condition that brought him to the hospital did not diminish his

capacity to execute a will on December 30, 2102.

In R.C. 2107.03 provides the method for making a will. It states in part:

"Except oral wills, every will shall he in writing, but may be handwritten ortypewritten. The will shall be signed at the end by the testator or by some otherperson in the testator's conscious presence and at the testator's express direction .The will shall be attested and subscribed in the conscious presence of the testator,by two or more competent witnesses, who saw the testator subscribe, or heard thetestator acknowledge the testator's signature. ***" (Emphasis added).

The questions for the Court are as follows:

1) Is this a "writing" and was the will "signed" and,

2) Has sufficient evidence been presented that this is the last will and testament of

Javier Castro.

R.C. 2107.03 requires only that the will be in "writing". It does not require that the

writing be on any particular medium. Nowhere else in Chapter 21 is "writing" defined.

Although not necessarily controlling, R.C. 2913.01(F) is instructive on the definition of a

"writing". It provides: "Writing" means any computer software, document, letter, memorandum,

note, paper, plate, data, film, or other thing having in or upon it any written, typewritten, or

printed matter, and any token, stamp, seal, credit card, badge, trademark, label, or other symbol

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of value, right, privilege, license, or identification." If the Court were to apply this definition of

a writing to R.C. 2107.03, the document on the Samsung Galaxy tablet would qualify as a

"writing". The writing in this contains of the stylus marks made on the tablet and saved by the

application software. I believe that the document prepared on December 30, 2012 on Albie's

Samsung Galaxy tablet constitutes a "writing" under R.C. 2107.03. To rule otherwise would put

restrictions on the meaning of "writing" that the General Assembly never stated.

The tablet application also captured the signature of Javier. The signature is a graphical

image of Javier's handwritten signature that was stored by electronic means on the tablet.

Similarly, I believe that this qualifies as Javier's signature under R.C. 2107.03. Thus, the writing

was "signed" at the end by Javier.

Evidence was presented by six witnesses that Javier had stated that the document he

signed on the tablet were his wishes and that it was his last will and testament.. Testimony was

elicited from all six witnesses that Javier never subsequently expressed any desire or intention to

revoke, amend or cancel the will.

As stated above, R.C. 2107.03 provides in part: "The will shall be attested and subscribed

in the conscious presence of the testator, by t «-n- more competent witnesses, who saw the

testator subscribe, or heard the testator acknowledge the testator's signature." This will contained

no attestation clause. Rather it merely contains the signature of the three men who testified that

they witnessed the will.

R.C. 2107.24 provides:

"If a document that is executed that purports to be a will is not executed incompliance with the requirements of section 2107.03 of the Revised Code, thatdocument shall be treated as if it had been executed as a will in compliance withthe requirements of that section if a probate court, after holding a hearing, findsthat the proponent of the document as a purported. will has established, by clearand convincing evidence, all of the following:

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(1) The decedent prepared the document or caused the document to be prepared.

(2) The decedent signed the document and intended the document to constitutethe decedent's will.

(3) The decedent signed the document under division (A)(2) of this section in theconscious presence of two or more witnesses. As used in division (A)(3) of thissection, "conscious presence" means within the range of any of the witnesses'senses, excluding the sense of sight or sound that is sensed by telephonic,electronic, or other distant communication."

The Court finds by clear and convincing evidence that Javier signed the will; that he

intended the document to be his last will and testament; and that the will was signed in the

presence of two or more witnesses. Therefore, all three subsections of R.C. 2017.24 have been

proven.

There is no statutory law or case law in Ohio concerning writing a will in electronic

format. The State of Nevada allows .for the creation of an electronic will! If Javier's will had

been created in Nevada, it would have complied with state law.

The Court finds that the document signed on December 30, 2012 on the Samsung Galaxy

tablet is the last will and testament of Javier Castro and should be admitted to probate.

The Application to Probate Will and Application for Authority to Administer Estate filed

by Miguel Castro are approved. Bond filed by Miguel Castro in the sum of $125,000.00 is

approved. Letters of Authority shall be issued to Miguel Castro in this case.

ft' IS SO ORDERED.

Judge James . Walther

cc: Atty. AndersonAtty. Robison

2 NRS 133.085

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Taylor v. Holt, 134 S.W.3d 830 (2003)

134 S.W.3d 83oCourt of Appeals of Tennessee,Eastern Section, at Knoxville.

Donna Godfrey TAYLORv.

Doris HOLT.

No. E2003-0o9oi—COA—R3—CV.

Aug. 18, 2003 Session.

Oct. 31, 2003.

Permission to Appeal Denied bySupreme Court May 10, 2004.

Published Pursuant to Supreme Court Rule 4(D).

SynopsisBackground: Testator's sister tiled complaint againsttestator's girlfriend alleging that testator's will, whichpurported to leave testator's entire estate to girlfriend, wasnot properly executed. The Chancery Court, CockeCounty, Telford E. Forgety, Jr., Chancellor, awardedsummary judgment to girlfriend. Sister appealed.

Holding: The Court of Appeals, D. Michael Swiney, J.,held that computer-generated signature on testator's willconstituted a symbol or methodology executed by testatorwith intention to authenticate a writing.

Affirmed.

West Headnotes ( I )

[11 Wills-Necessity and sufficiency in general

Computer-generated signature on testator's will,which was observed by two witnesses who latersigned the will, constituted a "symbol ormethodology executed" by testator "withintention to authenticate a writing," understatutory definition of "signature," and thus will's execution satisfied statute governing execution

of a will: testator intended the computerizedmark to operate as his signature, and testatorsimply used a computer rather than a pen as thetool with which he signed the will. West's T.C.A.§§ 1-3-105(27), 32-1-104.

I Cases that cite this headnote

Attorneys and Law Firms

*830 William M. Leibrock, Newport, Tennessee, for theAppellant, Donna Godfrey Taylor.

James C. McSwecn, Jr., Newport, Tennessee, for theAppellee, Doris Holt.

D. MICHAEL SWINEY, J., delivered the opinion of thecourt, in which CHARLES D. SUSAN°, JR., J., andWILLIAM H. INMAN, SR.. J., joined.

OPINION

D. MICHAEL SWINEY, J.

Steve Godfrey prepared his last will and testament on hiscomputer and affixed his computer generated signature atthe end. He had two neighbors witness the will. Mr.Godfrey died approximately one week later. Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted the will14 probate. Donna Godfrey Taylor ("Plaintiff"), Mr.Godfrey's sister, filed a complaint alleging, in part, that thewill was not signed and claiming that Mr. Godfrey haddied intestate. The Trial Court granted Defendant summaryjudgment holding there were no undisputed material factsand that all legal requirements concerning the executionand witnessing of a will had been met. Plaintiff appeals.We affirm.

Background

Steve Godfrey ("Deceased") prepared a document inJanuary of 2(X)2, purporting to be his last will andtestament. The one page document was prepared byDeceased on his computer. Deceased asked two neighbors,

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Taylor v. Holt, 134 S.W.3d 830 (2003)

Hershell Williams and Teresa Williams to act as witnessesto the will. Deceased affixed a computer generated versionof his signature at the end of the document in the presenceof both Hershel! and Teresa Williams. Hershel! and TeresaWilliams then each signed their name *831 belowDeceased's and dated the document next to their respectivesignatures. In the document, Deceased devised everythinghe owned to a person identified only as Doris. Deceaseddied approximately one week after the will was witnessed.

Defendant, Deceased's girlfriend, who lived withDeceased at the time of his death, filed an Order of Probateattempting to admit the will to probate and requesting to beappointed the personal representative of the estate.Defendant also filed affidavits of both Hershell and TeresaWilliams attesting to the execution of the will. Theaffidavits each state that the afliant was a witness toDeceased's last will and testament and that each hadsigned at Deceased's request in the presence of bothDeceased and the other witness. The affidavits both alsostate: "That the Testator, Steve Godfrey personallyprepared the Last Will and Testament on his computer, andusing the computer affixed his stylized cursive signature inmy sight and presence and in the sight and presence of theother attesting witness...." Further, each affidavit statesthat the affiant "was of the opinion that the Testator, SteveGodfrey, was of sound mind" at the time the will waswitnessed.

Plaintiff, Deceased's sister, tiled a complaint alleging,inter alia, that she is the only surviving heir of Deceased,that Deceased died intestate, that the document producedfor probate was void because it did not contain Deceased'ssignature, and that Doris Holt has no blood relation or legalrelation to the Deceased and should not have beenappointed administratrix of Deceased's estate. Defendantfiled a motion to dismiss or in the alternative for summaryjudgment claiming that all of the legal requirementsconcerning the execution and witnessing of a will underTennessee law had been met and tiled the supportingaffidavits of Hershel! and Teresa Williams.

The Trial Court entered an order on December 23, 2002,granting Defendant summary judgment. The Decemberorder held that all of the legal requirements concerning theexecution and witnessing of a will under Tennessee lawhad been met and held that Defendant was entitled tosummary judgment as a matter of law. Plaintiff appeals.

Discussion

Although not stated exactly as such, Plaintiff raises two

issues on appeal: I) whether the Trial Court erred infinding that the computer generated signature on the willcomplied with the legal requirements for the execution of awill, and, thus, en-ed in granting Defendant summaryjudgment; and, 2) whether an alleged beneficiary under awill should be allowed to receive benefits from the estateeven though the will refers to the beneficiary only by herfirst name. We will address each issue in turn.

As our Supreme Court has instructed:

The standards governing an appellate court's review of amotion for summay judgment are well settled. Sinceour inquiry involves purely a question of law, nopresumption of correctness attaches to the lower court'sjudgment, and our task is confined to reviewing therecord to determine whether the requirements of Tenn.R. Civ. P. 56 have been met. See Hunter v. Brown, 955S. W.2d 49, 50-51 (Tenn. 1997); Cowden v. SovratzBank/Centred South, 816 S.W.2d 741. 744 (Tenn.1991).Tennessee Rule of Civil Procedure 56.04 provides thatsummary judgment is appropriate where: (I ) there is nogenuine issue with regard to the material facts relevantto the claim or defense contained in the motion, see*832 Byrd v. Hall. 847 S.W.2d 208, 210 (Tenn.1993);and (2) the moving party is entitled to a judgment as amatter of law on the undisputed facts. See Anderson v.Standard Register Co., 857 S.W.2d 555. 559(Tenn.1993). The moving party has the burden ofproving that its motion satisfies these requirements. SeeDemirel! v. Allstate Ins. Co., 81 1 S.W.2d 523, 524(Tenn. 1991). When the party seeking summaryjudgment makes a properly supported motion, theburden shifts to the nonmoving party to set forth specificfacts establishing the existence of disputed, materialfacts which must be resolved by the trier of fact. SeeByrd i'. [hill, 847 S.W.2d at 215.

To properly support its motion, the moving party musteither affirmatively negate an essential element of thenon-moving party's claim or conclusively establish anaffirmative defense. See MeCarley v. West Quality FoodSera., 960 S.W.2d 585, 588 (Tenn .1998); Robinson v.Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the movingparty fails to negate a claimed basis for the suit, thenon-moving party's burden to produce evidenceestablishing the existence of a genuine issue for trial isnot triggered and the motion for summary judgmentmust fail. See IlleCarley v. West Quality Food Sens., 96()S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. Ifthe moving party successfully negates a claimed basisfor the action, the non-moving party may not simply restupon the pleadings, but must offer proof to establish theexistence of the essential elements of the claim.

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Taylor v. Holt, 134 S.W.3d 830 (2003)

The standards governing the assessment of evidence inthe summary judgment context are also well established.Courts must view the evidence in the light mostfavorable to the nonmoving party and must also draw allreasonable inferences in the nonmoving party's favor.See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Halt847 S.W.2d at 210-11. Courts should grant a summaryjudgment only when both the facts and the inferences tobe drawn from the facts permit a reasonable person toreach only one conclusion. See McCall v. Wilder, 913S.W.2d 150, 153 (Tenn. I 995); CameII v. Bottoms, 900S.W.2d 23, 26 (Tenn.1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88-89(Tenn.2000) (footnote omitted).

Tenn.Code Ann. § 32-1-104 addresses the requisiteformalities for the execution and witnessing of a will inTennessee and states:

The execution of a will, other than a holographic ornuncupative will, must be by the signature of the testatorand of at least two (2) witnesses as follows:

(1) The testator shall signify to the attesting witnessesthat the instrument is his will and either:

(A) Himself sign;

(B) Acknowledge his signature already made; or

(C) At his direction and in his presence have someoneelse sign his name for him; and

(D) In any of the above cases the act must be done inthe presence of two (2) or more attesting witnesses.

(2) The attesting witnesses must sign:

( A) In the presence of the testator; and

(B) In the presence of each other.

Tenn.Code Ann. § 32-1-104 (1984)'. The definition of "signature" as used in the *833 statute is provided byTenn.Code Ann. § 1-3-105, which states: "As used in thiscode, unless the context otherwise requires: ... 'Signature'or 'signed' includes a mark, the name being written nearthe mark and witnessed, or any other symbol ormethodology executed or adopted by a party with intentionto authenticate a writing or record, regardless of beingwitnessed." Tenn.Code Ann. § 1-3-105(27) (1999).

We begin by considering whether the Trial Court erred infinding that the computer generated signature on the willcomplied with the legal requirements for the execution of a

will, and, thus, erred in granting Defendant summaryjudgment.

Plaintiff claims that the will was not signed. Plaintiff'sbrief argues "there is no indication of any type or naturethat there was a mark of any type made by the testator."Plaintiff cites to Sunderland v. Bailey (In Re: Estate ofWait), a 1957 case in which this Court found that "thetestatrix may have made a mark of sonic sort, either aninitial or one or more letters of her signature, on the willbut she clearly indicated that she did ❑ot consider suchmark or marks to constitute her signature." Sunder/and v.Bailey (In Re: Estate of Wait), 43 Tenn.App. 217, 306S.W.2d 345, 348 (1957). The witnesses in Estate of Waittestified that the testatrix had stated to them when the willwas witnessed that she could not sign the will at that time,but would sign it later. Id. at 347. The Wait testatrixactually signed the will a day or two after it was witnessed.

The Wait testatrix stated to the witnesses that she did notconsider any mark to be her signature and this is borne outby the fact that she later signed the will. The Wait Court didnot "find it necessary or proper ... to rule whether or not atestator may legally sign a will by mark." Id. at 348.Rather, the Court upheld the determination that the willwas not entitled to probate based upon the fact that the willwas not executed and witnessed in conformity with thestatute. Id. at 349.

The situation in Estate of• Wait is dissimilar to the instantcase. In the case at hand, Deceased did make a mark thatwas intended to operate as his signature. Deceased made amark by using his computer to affix his computergenerated signature, and, as indicated by the affidavits ofboth witnesses, this was done in the presence of thewitnesses. The computer generated signature made byDeceased falls into the category of "any other symbol ormethodology executed or adopted by a party with intentionto authenticate a writing or record," and, if made in thepresence of two attesting witnesses, as it was in this case, issufficient to constitute proper execution of a will. Further,we note that Deceased simply used a computer rather thanan ink pen as the tool to make his signature, and, therefore•complied with Tenn.Code Ann. § 32-1-104 by signing thewillhimself.

Defendant made a properly supported motion for summaryjudgment claiming there were no disputed issues ofmaterial fact and that Defendant was entitled to judgmentas a matter of law. Defendant supported this assertion withthe affidavits of Hershel] and Teresa Williams, thewitnesses to the will, attesting to the circumstancessurrounding the execution of the will. As Defendant made

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Taylor v. Holt, 134 S.W.3d 830 (2003)

a properly supported motion, the burden shifted to Plaintiffto set forth specific facts establishing the existence ofdisputed, material facts which must be resolved by the trierof fact. Plaintiff failed to do this. Plaintiff produced a letterthat Plaintiff's appellate brief claims "set out a verydifferent picture of [Deceased's] feelings towards[ Defendant]." However, this letter has absolutely norelevance as to whether the will *834 was properlyexecuted and witnessed. Plaintiff failed to set forth specificfacts establishing the existence of disputed, material factsregarding the execution of the will which must be resolvedby the trier of fact.

There are no disputed material facts and, as discussedabove, Defendant is entitled to judgment as a matter of lawbecause the will was executed and witnessed in conformitywith the statute. Thus, we hold that the Trial Court did noterr in holding that the legal requirements for the executionand witnessing of a will had been met.

The other issue Plaintiff raises concerns whether an allegedbeneficiary under a will should be allowed to receivebenefits from the estate even though the will refers to thebeneficiary by first name, but fails to state the beneficiary's last name. The will devises everything Deceased ownedto someone named Doris, but fails to give a last name forDoris. Plaintiff apparently raises an issue regardingwhether the Doris named in the will is the Defendant.

The Trial Court based its decision to grant summaryjudgment upon whether the will in question met the

Footnotes

statutorily prescribed elements to be a valid last will andtestament. The Trial Court did not consider or decidewhether the Doris named in the will is the Defendant asthis issue is not germane to whether the will was properlyexecuted and witnessed in conformity with Tennessee law.We agree. Defendant was entitled to summary judgmentbecause the will was properly executed and witnessed inconformity with Tennessee law. The identification of thebeneficiary has no bearing on the dispositive issue beforethe Trial Court of whether this was Deceased's validlyexecuted and witnessed last will and testament. We affirmthe grant of summary judgment.

Conclusion

The judgment of the Trial Court is affirmed, and this causeis remanded to the Trial Court for such further proceedingsas may be required, if any, consistent with this Opinion andfor collection of the costs below. The costs on appeal areassessed against the Appellant, Donna Godfrey Taylor, andher surety.

All Citations

134 S.W.3d 830

The statutes quoted in this Opinion are the versions in effect at the time of Deceased's death.

End of Document !g- 201- • filomst m Reuters. N :lairn to prigin at U.S ,overnment W xks.

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Litevich v. Probate Court, Dist. of West Haven, Not Reported in A.3d (2013)2013 WL 2945055

2013 WL 2945055Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK COURT RULESBEFORE CITING.

Superior Court of Connecticut,.Judicial District of New Haven.

Lawrence LITEVICHv.

PROBATE COURT, DISTRICT OF WEST HAVEN.

WILSON, J.

No. NNHCV126031579S.

May 17, 2013.

FACTS

*1 This appeal from two decrees of the Probate Court forthe District of West Haven, DeGennaro, J., involves twocompeting wills, one of which was composed in 1991 viatraditional means (1991 will), the other of which wascreated in 2011 through the online legal document draftingservice, Legalzoom (Legalzoom will). Before the court isthe defendant's motion to strike the plaintiff's three-countcomplaint. In his complaint, the plaintiff, LawrenceLitevich, seeks to vacate two decrees of the probate courtthat, together, reject the Legalzoom will and admit the1991 will.' The plaintiff also seeks a judicial declarationthat the Statute of Wills, General Statutes § 45a-251,'which provides the execution formalities for testamentaryinstruments in Connecticut, is in violation of theConstitution of Connecticut when applied to the facts ofthis case. In the alternative, the plaintiff seeks a declarationthat the Legalzoom will created a legally valid method oftransferring property at death. The defendant, JamesBrennan, Administrator CTA of the estate of CaroleBerger (administrator): has filed a motion to strikeasserting two grounds: (I) the court lacks subject matterjurisdiction and (2) the plaintiff has not alleged theexistence of a valid will.

On February I, 2013, the plaintiff tiled a three-countamended complaint in which he alleges the followingfacts. Carole Berger. the decedent and testator in this case,never married and did not have any siblings or children.nor did she maintain an active social life. Instead, thedecedent spent the majority of her time working in alaboratory at the Yale University School of Medicine in theDepartment of Dermatology (Yale).

The plaintiff was a close friend of the decedent and hasknown her since 2000. when he met her while performingrenovation projects throughout Yale. Thereafter, theplaintiff performed work on the decedent's personalresidence and weekend apartment in the Bronx, New York.Through these projects, the two formed a personalrelationship wherein the decedent assumed the role of a "second mother" to the plaintiff purchasing yearlyChristmas gifts for the plaintiff's children. According tothe complaint, in the final years of the decedent's life, theplaintiff regularly shopped for groceries for the decedent,after which the two watched television together or dined atlocal restaurants.

The plaintiff alleges further that third party JeanetteSullivan' was at all relevant times an employee at Yale,through which she came to know the decedent, beginningin 2002. As with the plaintiff, Sullivan became thedecedent's close friend, and the decedent stopped bySullivan's office regularly for "chats and camaraderie." Inaddition, the plaintiff alleges that although it wasuncommon for the decedent to socialize with coworkers,the decedent did, on occasion, invite Sullivan to thedecedent's home for dinner.

The plaintiff alleges further that during the last weeks andmonths before her death, the decedent, who had been aheavy smoker" throughout the course of her life, becameincreasingly tired and lethargic due to failing health. OnJuly 9, 2011, the decedent contracted with the onlinedocument drafting company, Legalzoom, to prepare, interalia. the Legalzoom will. A review of the Legalzoom willreveals that it devised the majority of the decedent's estateto Sullivan and Litevich in equal fifty percent shares. Inaddition, the Legalzoom will designates Sullivan as theexecutor of the estate, with Litevich as an alternate.

*2 The plaintiff alleges further in the complaint that inorder to complete the Legalzoom will, the decedent loggedon to her computer, which the plaintiff alleges "likely"required a password, created an account with Legalzoomand completed a lengthy process to determine withspecificity her exact wishes. This process also required thedecedent to provide "all her pertinent personal

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information" to Legalzoom, including her social securitynumber. The plaintiff alleges that at all times during thisprocess the decedent was of sound mind and no other partyprovided her with assistance.

The plaintiff alleges that following the completion of thedrafting process, Legalzoom required the decedent toconfirm each of the documents she had created beforecompleting her purchase and that this confirmation processwas "tantamount to a signature." The plaintiff also allegesthat Legalzoom required the decedent to pay for itsservices by credit card and that the decedent did, in fact paywith her credit card.

The plaintiff alleges further that soon after the decedentcreated the Legalzoom will, she informed the plaintiff thatshe had left him a portion of her estate. Prior to that time,neither the plaintiff nor Sullivan ever discussed thedecedent's will with the decedent or discussed theappointment of a fiduciary in the event of the decedent'sincapacity. In addition, prior to that time, neither theplaintiff nor Sullivan possessed any knowledge pertainingto the same. The plaintiff and Sullivan had also neverdiscussed the matter with each other.

The plaintiff alleges further that on July I1. 2011,Legalzoom notified the decedent that it had shipped theLegalzoom will to her. On July 14, 2011, the decedent,who was then at her apartment in the Bronx, New York,contacted Sullivan via telephone, informed Sullivan thatshe was not feeling well and asked to be taken to thehospital. The decedent refused to be admitted to a hospitalalone, and did not want to be admitted to a hospital in NewYork. Accordingly, Sullivan traveled from Milford,Connecticut, to the decedent's Bronx apartment and drovethe decedent to Yale New Haven Hospital in New Haven,Connecticut. After being admitted to the hospital, thedecedent informed Sullivan that she did not want theplaintiff to know of her illness because she did not wanthim to see her in her diminished state. The decedent alsoasked Sullivan to retrieve a package from the decedent'slandlord in the Bronx, but did not inform Sullivan of thepackage's contents.

After Sullivan retrieved the package, the decedentinformed Sullivan that it contained the Legalzoom will andthat it was the decedent's wish that the will be signedbefore her death. Then plaintiff alleges, however, that thedecedent and Sullivan both erroneously believed that thedecedent's signature would be invalid without theattestation of a notary.' Consequently, at the decedent'srequest, Sullivan attempted to locate a notary. but wasunable to have a notary come to the hospital in a timelymanner. A notary did not become available until July 23,

2011. Meanwhile, between July 22 and July 25, 2011, thedecedent "fell into a state wherein she lacked any kind ofcapacity to execute any kind of legally binding document."The decedent died on July 25, 2011. At the time of her

death, Sullivan was holding the decedent's hand. Sullivanalso paid for the decedent's funeral.

*3 After the decedent's death, Sullivan and the plaintifflearned that the decedent had designated the two asbeneficiaries of the decedent's various non-probate assets,including several life insurance policies and retirementaccounts, the aggregate value of which was approximately$840,000.

On November 30, 2011, Sullivan and the plaintiff appliedto the Probate Court to open an estate with the Legalzoomwill as the operative instrument. On April 19, 2012,Hadassah, the Women's Zionist Organization of American(Hadassah), a beneficiary under the 1991 Will, tiled the1991 will with the Probate Court, seeking to have itadmitted.

The plaintiff alleges that without permitting discovery or ahearing on the merits, on May 24, 2012, the Probate Courtissued a decree summarily denying the Legalzoom will toprobate." Thereafter, on July 16, 2012, the Probate Courtissued a second decree admitting the 1991 will.' These twodecrees are the subject of the plaintiff's present appeal.Count one of the complaint requests that the SuperiorCourt vacate the May 24, 2012 decree. Count two requeststhat the court vacate the July 16, 2012 decree. Count threeseeks a declaration that the Legalzoom will, in light of thefacts of this case, created a legally valid method oftransferring property at death and/or that § 45a-251violates article first, §* I and 20 of the ConnecticutConstitution because it requires execution formalities thatare not rationally related to their intended purpose.

On November 9, 2012, the defendant filed a motion tostrike all counts of the complaint on the two grounds that( 1 ) the plaintiff cannot establish that he is a party aggrievedby either decree of the Probate Court and, therefore. thecourt lacks subject matter jurisdiction and (2) the plaintiffhas failed to allege the existence of a valid will under anypossible scenario.

The plaintiff filed an objection and supportingmemorandum on February I, 2013. Also on February 1.2013, the plaintiff filed a request to amend the complaintand proposed amendment. The defendant did not object.The amended complaint is, therefore, the operativecomplaint for the purposes of this motion. On February 27,2013, the defendant filed an "amended motion to strike"which purports to respond to procedural arguments raised

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by the plaintiff in its memorandum in objection. The courtheard oral argument on the short calendar on March I I,2013.

DISCUSSION

At the outset, the court notes that "Ia ]n appeal from aProbate Court to the Superior Court is not an ordinary civilaction ... When entertaining an appeal from an order ordecree of a Probate Court, the Superior Court takes theplace of and sits as the court of probate „. In ruling on aprobate appeal, the Superior Court exercises the powers,not of a constitutional court of general or common lawjurisdiction, but of a Probate Court." (Internal quotationmarks omitted.) Marchentine v. Brittany Farms HealthCenter, Inc., 84 Conn.App. 486, 489-90, 854 A.2d 40(2004).

*4 The standard for a motion to strike is long-settled. "Whenever any party wishes to contest ... the legalsufficiency of the allegations of any complaint ... to state aclaim upon which relief can be granted ... that party may doso by filing a motion to strike the contested pleading or partthereof." Practice Book § 10-39. "The purpose of a motionto strike is to contest ... the legal sufficiency of theallegations of any complaint ... to state a claim upon whichrelief can be granted." (Internal quotation marks omitted.)Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480,498, 815 A.2(1 1188 (2003). "Mt is fundamental that indetermining the sufficiency of a complaint challenged by adefendant's motion to strike, all well-pleaded facts andthose facts necessarily implied from the allegations aretaken as admitted." (Internal quotation marks omitted.)Coe v. Board of Education, 301 Conn. 1 12, 1 16-17, 19A.3d 640 (2011). A motion to strike "does not admit legalconclusions or the truth or accuracy of opinions stated inthe pleadings." (Internal quotation marks omitted.)Faulkner v. United Technoloyies Corp., 240 Conn. 576,588, 693 A.2d 293 (1997). "A motion to strike is properlygranted if the complaint alleges mere conclusions of lawthat are unsupported by the facts alleged." (Internalquotation marks omitted.) Bridgeport Harbour Place I,LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

A

Subject Matter Jurisdiction

The court first addresses the defendant's subject matterjurisdiction argument. "Once the question of subject matterjurisdiction has been raised, cognizance of it must be takenand the matter passed upon before [the court] can moveone further step in the cause; as any movement isnecessarily the exercise of jurisdiction." (Internalquotation marks omitted.) Schaghticoke Tribal Nation v.Harrison, 264 Conn. 829, 839 n. 6. 826 A.2d 1102 (2003).Any determination concerning the Superior Court'ssubject matter jurisdiction is a question of law where, ashere, the underlying facts are not in dispute. O'Halloran v.Charlotte HungetfOrd Hospital, 63 Conn.App. 460, 463,776 A.2d 514 (2001).'

Section 45a-186(a) provides, in pertinent part: "[A]nyperson aggrieved by any order, denial or decree of a courtof probate in any matter, unless otherwise speciallyprovided by law, may ... appeal therefrom to the SuperiorCourt." The ''right to appeal from the decision of a ProbateCourt is statutorily conferred by [General Statutes § 45a-186, and] the absence of aggrievement. as required by thatstatute, is a defect that deprives the Superior Court ofjurisdiction to entertain the appeal." (Internal quotationmarks omitted.) Adolphson v. Weinstein, 66 Conn.App.591. 595, 785 A.2d 275 (2001).

"The trial court does not have subject matter jurisdiction tohear an appeal from probate unless the person seeking to beheard has standing ... In order for an appellant to havestanding to appeal from an order or decree of the ProbateCourt, the appellant must he aggrieved by the court'sdecision. General Statutes § 45a—I 86 ... Aggrievement as aconcept of standing is a practical and functional onedesigned to assure that only those with a genuine andlegitimate interest can appeal an order of the Probate ... Thequestion of laggrievementl does not involve an inquiryinto the merits of the case ..." (Emphasis in original;internal quotation marks omitted.) Marchentine v. BrittanyFarms Health Center, Inc., supra. 84 Conn.App. 490.Thus, our Supreme Court has "interpreted § 45a—1 86(a) torequire that the decision of the Probate Court must haveaffected a party's interest in the estate in order for thatparty to have standing to appeal the court's order."McBurney r. Cirillo, 276 Conn. 782, 821, 889 A.2d 759(2006), overruled on other grounds by, Bette—Hohngren v.Commissioner of Public Health, 281 Conn. 277, 914 A.2d996 (2007).

*5 "Aggrievement falls within two categories, classicaland statutory ... Classical aggrievement exists where thereis a possibility, as distinguished from a certainty, that aProbate Court decision has adversely affected a legallyprotected interest of the appellant in the estate ... Statutory

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aggrievement exists by legislative fiat which grants anappellant standing by virtue of particular legislation, ratherthan by judicial analysis of the particular facts of the case... It merely requires a claim of injury to an interest that isprotected by statute." (Internal quotation marks omitted.)Marchentine v. Brittany Farms Health Center, Inc., supra,84 Conn.App. 490.

In his memorandum in support of his motion to strike, thedefendant argues that the court is without subject matterjurisdiction because the plaintiff is not a party aggrieved byan order or decree of the Probate Court. More specifically.the defendant argues that "that plaintiff cannot show, nordoes the complaint allege, any facts that if proven wouldsupport a finding that Litevich is aggrieved ..." This is so,the defendant argues, because the plaintiff has alleged thathe is the beneficiary of an unsigned, undated, unwitnessedwill and that such a document could never satisfy therequirements of § 45a-251. Therefore, the defendantargues, the plaintiff is not aggrieved within the meaning of§ 45a-186. In response, the plaintiff argues that he isclassically aggrieved by the two decrees of the ProbateCourt because he is a beneficiary under the Legalzoomwill, and the Probate Court erroneously refused to admitthat will to probate.'

In the complaint, the plaintiff alleges: "[The] plaintiff ... isaggrieved by virtue of being a beneficiary under theLegalzoom will ... which was denied by the Probate Court,and whose decree indicating the same, is the subject of thisappeal." The plaintiff also argues in his memorandum oflaw that he is aggrieved because he is "a beneficiary underthe Legalzoom will, and as such he was clearly aggrievedby the Probate Court's decision not to admit that valid willto probate." Finally, in the alternative, the plaintiff arguesthat he has standing to seek vindication of "both thedecedent's constitutional liberties and his own."'

Each of the defendant's arguments go to the merits of thecase, not to the question of whether the plaintiff has aninterest in the estate. In essence, the defendant hasrequested that the court find that it is without subject matterjurisdiction because the Probate Court's ruling was correctand/or because the plaintiff's present claim is very likely tofail. Such analysis is, however, improper to the question ofaggrievement because it ignores settled Connecticut lawthat "[Ole question of jaggrievement] does not involve aninquiry into the merits of the case." (Internal quotationmarks omitted.) Marchentine v. Brittany Farms HealthCenter, Inc., supra, 84 Conn.App. 490. Thus, the fact that,in the defendant's estimation, the Probate Court's rulingwas without error, does not affect the analysis.

*6 Instead, the plaintiff alleges in the complaint that he is

the close friend of the decedent and, more importantly, thathe is the beneficiary of a testamentary instrument that wasdenied probate by the Probate Court. Although the merestatus of friendship with a decedent does not establish aninterest in an estate; see, Adolphson v. Weinstein,supra, 66 Conn.App. 597 (plaintiff must have legal status "vis-a-vis the property" to have standing to bring probateappeal); the fact that the plaintiff is a direct beneficiary of adocument purporting to be a testamentary instrument,when combined with the other facts alleged in thecomplaint, does establish standing. Under the facts of thiscase, the court finds that the plaintiff is aggrieved withinthe meaning of § 45a-186. This court does have subjectmatter jurisdiction to decide the present dispute.

B

Procedural Defects in the Defendant's Motion to Strike

The court next addresses, as a threshold matter, theplaintiff's argument that the defendant's motion to strike is"fatally defective" and that it must therefore be summarilydenied. "Each motion to strike ... shall separately set fortheach ... claim of insufficiency and shall distinctly specifythe reason or reasons for each such claimed insufficiency."Practice Book § 10-41. "Motions to strike that do not

specify the grounds of insufficiency are fatally defectiveand, absent a waiver by the party opposing the motion,should not be granted ... Our Supreme Court has stated thata motion to strike that does not specify the grounds ofinsufficiency is fatally defective ... and that Practice Book[ § 10-421, which requires a motion to strike to beaccompanied by an appropriate memorandum of law citingthe legal authorities upon which the motion relies, does notdispense with the requirement of [Practice Book § 10-41 ]that the reasons for the claimed pleading deficiency bespecified in the motion itself." (Internal quotation marksomitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927A.2d 343 (2007).

Further, our Appellate Court has observed in the course ofapplying this rule that "10144)11y, it may appear that formis being elevated over substance by adhering strictly toPractice Book § 10-41. That section, however, clearlyplaces the burden on the party filing the motion to strike tostate the grounds of the claimed insufficiency in the text ofthe motion. As correctly noted by the Superior Court inBucon, Inc. v. ARC Icesports Danbury, Inc ., SuperiorCourt, [complex litigation docket at] Waterbury, DocketNo. 1X011 CV 99 0160473 (February 8, 2001 [Hodgson,J.1 ) [29 Conn. L. Rptr. 421 ], if that procedure is not

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followed, it puts the party opposing the motion and thecourt to the task of trying to locate in the accompanyingmemorandum of law the various claims of insufficiencythat are being made. In poorly organized briefs, such a huntfor grounds presents the hazard of missing claims orresponding to observations that the movant does notactually assert as claims." (Internal quotation marksomitted.) Id.. 862 n. 2.

*7 The plaintiff argues in his memorandum in objectionthat Practice Book § 10-41 explicitly requires a party filinga motion to strike to specify the grounds for eachinsufficiency claimed. The plaintiff argues further that thedefendant has failed to do so here and, therefore, hismotion to strike is fatally defective and the court isprecluded from issuing ruling on the motion.

The defendant does not attempt to argue that the motion tostrike complied with Practice Book § 10-41. Instead, onFebruary 27, 2013, the defendant tiled a pleading itcharacterizes as an "amended motion to strike," which thedefendant claims solves any procedural defect.

In his original motion to strike, the defendant stated: "Pursuant to Connecticut Practice Book § 10-39, thedefendant moves to strike the complaint for the reasonthat the complaint fails to allege a cause of action uponwhich relief can be granted. A memorandum of law isattached." In contrast, in his amended motion to strike, thedefendant states that he "hereby amends his motion tostrike filed on November 9, 2012 ... to include in the bodyof the motion the specific grounds relied upon to supportthe defendant's motion to strike. These grounds werepreviously raised in the defendant's memorandum of lawin support of his November 9, 2012 motion to strike, butwere not included in the body of the motion itself ... Thedefendant does not concede his November 9, 2012 motionfails to satisfy the procedural requirements for a motion tostrike, however, out of an abundance of caution, theundersigned hereby tiles the instant amended motion tostrike to set forth in the body of the motion the specificgrounds relied upon ..." The amended motion thus setsforth two grounds: (1) that the plaintiff is not aggrieved and(2) that the plaintiff' does not allege in the complaint thatthe decedent subscribed the Legalzoom will.

By specifically objecting to the defendant's failure toinclude the grounds for his motion in the motion itself, theplaintiff has not waived the § 10-41 procedural defect.Although the defendant claims that he "does not concede"that his motion failed to comply with § 10-41, thedefendant also states that the grounds for his motion "werepreviously raised in the defendant's memorandum of law... but were not included in the body of the motion itself."

Thus, it is clear that the defendant's original motion failedto comply with the requirements of Practice Book § 10-4 Iand the holding of Stuart t'. Freiberg, supra. 102Conn.App. 857, requires that the court conclude that thedefendant's November 9, 2012 motion to strike is fatallydefective and must be summarily denied.

The question remains, however, whether the defendant issaved by the February 27, 2013 amended motion to strike,which does state the ground upon which the defendantclaims that the plaintiff's complaint is legally insufficient;namely, that the complaint does not allege that thedecedent signed the Legalzoom will and, therefore, the willis not a valid will under any possible scenario.Accordingly, the question becomes whether the court mayconsider the amended motion as the operative motion inthe present case. At the present time, the plaintiff has nottiled a formal written objection regarding the proceduralvalidity of the amended motion. Similarly, the plaintiff didnot raise the issue at the short calendar.

*8 In general, most courts that have considered similarissues have found successive motions to strikeimpermissible. "Although the appellate courts have notruled on the issue, in numerous cases, the judges of theSuperior Court have concluded that the rules of practicepreclude a party from tiling successive motions to strikewhen the grounds raised in a later motion could have beenraised in the initial motion ... ITThe judges reason thatPractice Book I§ 10-411 provides that each motion tostrike shall set forth each such claim of insufficiency andshall distinctly specify the reason or reasons for eachclaimed insufficiency ... Practice Book. 1* I0-43j providesthat a judge deciding a motion to strike in which more thanone ground is asserted shall specify the ground relied uponin striking a claim ... [Because, 1tlhe Practice Bookprovides for pleading multiple grounds in a single motionto strike and, further, provides that pleadings are toadvance after the adjudication of each enumeratedpleading, a defendant may not impede the progress of thesuit by dividing his grounds and pleading them inconsecutive !notions to strike ... [Therefore], a defendantwho has failed to raise all grounds for striking a complaintmay not Ilated tile a second motion to strike assertingadditional grounds ... However, [a] second motion to strikemay he appropriate in limited circumstances. For example,when a plaintiff pursuant to Practice Book § 10-44, files asubsequent pleading alleging new facts." (Internalquotation marks omitted.). Smart v. Freiberg, SuperiorCourt, judicial district of Stamford—Norwalk, Docket No.CV 04 0200508 (July 9, 2008, Tobin, J.).

In Stuart v. Freiberg, supra, Superior Court, Docket No.CV 04 0200508, the Superior Court addressed whether a

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plaintiff could cure a failure to comply with Practice Book§ 10-41 by tiling a successive motion to strike thedefendant's special defenses. The court examined twoseparate cases in which the Superior Court was presentedwith "successive motions to strike in which the defendants'previous motions had been denied for failing to articulate

the grounds of the motion in violation of the Practice Bookrules. In each of these cases, the court determined thatsuccessive motions were appropriate." Id.

For example, in Knickerbocker v. Village ApartmentsProperties, Inc., judicial district of Stamford-Norwalk,Docket No. CV 01 0182260 (September 23, 1992, Pickett,J.) [7 Conn. L Rptr. 414], the court concluded that thePractice Book does not explicitly "prohibit [a party] fromfiling a second motion to strike." (Internal quotation marksomitted.) Stuart r. Freiberg, supra, Superior Court, DocketNo. CV 04 0200508. In addition, "in Irahieta i.Donaldson, [Superior Court, judicial district of Stamford-Norwalk] Docket No. CV 01 0182260 (December 12,2001, Adams, J.), the court found that [t]he defendant's ...[successive] motion to strike was prompted by ... a failureof the [the previous motion] on a matter of form. [Thedefendant] thus is not improperly attempting to assertadditional or different grounds in each successive motion.To the contrary, each successive motion and memorandumare substantively identical to the ones filed previously.Moreover, the plaintiff has not been subject to any delay orprejudice. [The defendant] wasted no time in addressingthe defect in form of the second motion ... Finally, theplaintiff has suffered little prejudice, if any, in terms of thet ime and effort required to respond to each successivemotion." (Internal quotation marks omitted.) Stuart v.Freiberg. supra, Superior Court, Docket No. CV 040200508; see also, e.g., Grant v. James Street, LLC,Superior Court, judicial district of New Haven, Docket No.CV 09 5027291 (July 2, 2009, Zoarski, J.T.R.) (48 Conn.L. Rptr. 192) (granting party's request for leave to fileamended motion to strike when original motion to strikeviolated Practice Book 10-41); Crosby i'. HSBC NorthAmerican Holdings, Inc.. Superior Court, judicial districto f Ansonia-Milford, Docket No. CV 06 500378 (May 16,2007, R. Robinson, J.) (considering substance of amendedmotion to strike; amended motion responded to proceduraldeficiencies and opposing party could not show prejudice).

*9 Accordingly, the Superior Court in Stuart elected toadopt the reasoning of those cases that permitted asuccessive motion to strike that was filed for the purpose ofcuring a § 10-41 defect because "[those] cases addressedcircumstances that are similar to the procedural posture ofthe present case. Moreover, the cases that have precludedsuccessive motions generally addressed circumstances inwhich the moving party asserted new grounds in a

successive motion." Id.

This court agrees with those cases that have concluded thatsuccessive motions to strike may be permissible in limitedcircumstances; namely, when the second motion is filedsolely for the purpose of curing a Practice Book § 10-41defect, is timely filed, does not include new or differentgrounds, the opposing party is not prejudiced, and theinterests of judicial economy would be best served byconsidering the motion. The court also concludes that thisis such a case.

In the first instance, the amended motion was filed prior tothe oral argument at short calendar and does not raise newor different grounds. The court also finds it significant that,after objecting to the first motion's failure to comply withPractice Book § 10-41, the plaintiff did not object to thesecond motion as procedurally improper in any of itsmoving papers or at oral argument. Further, the plaintiffwill not be prejudiced by a consideration of the motionbecause the plaintiff has tiled a thorough memorandum oflaw that is responsive to each of the defendant'ssubstantive points. The plaintiff also had the opportunity torespond to the defendant's amended motion at the shortcalendar to the extent it may have been appropriate, but didnot do so.

In addition, the court is aware that the complaint's legalsufficiency will be tested and resolved at some point intime. For example, the complaint's legal sufficiency mayhe challenged via a motion for summary judgment. SeeLarobina v. McDonald, 274 Comm. 394. 401, 876 A.2d 522(2005). "While the fact that there are alternative proceduralvehicles for attacking a complaint's legal sufficiency mightappear to weigh in the plaintiff's favor, such mechanismsalso make it clear that the legal sufficiency of the plaintiff's complaint will [ultimately] be addressed at some point."Stuart v. Freiberg, supra, Superior Court, Docket No. CV04 02(X)508. This concern is especially significant in lightof the fact that "[Ole design of [the] rules [of practice]being to facilitate business and advance justice, [should] beinterpreted liberally in any case where it shall be manifestthat a strict adherence to them will work surprise orinjustice. Practice Book § 1-8. Further, the [r]ules ofpractice must be construed reasonably and withconsideration of this purpose ... Rules are a means tojustice, and not an end in themselves; their purpose is toprovide for a just determination of every proceeding."(Internal quotation marks omitted.) Shapero v. !Net-cede,77 Conn.App. 497, 508 R. 18, 823 A.2d 1263 (2003).

*10 Were the court to deny the motion to strike on purelyprocedural grounds, the business of the court would not befacilitated and justice would not be advanced. Instead, the

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court would achieve no more than to delay consideration ofthe inevitable questions presented by the present facts—i.e., whether § 45a-251 violates the Constitution ofConnecticut and/or whether Connecticut ought to adopt the"harmless error" exception followed by other states inrelation to their own Statute of Wills. Such a delay wouldrequire the parties to expend additional time and resourcesneedlessly. This is not a case where the grounds for thedefendant's motion to strike are unclear. Accordingly,because a denial of the motion to strike would conflict withthe purposes of the Practice Book, the defendant wasted notime in amending the motion to cure the defect, theplaintiff has not objected, the plaintiff will not beprejudiced, and concerns of judicial economy weigh infavor of considering the motion to strike at this time, thecourt finds that it is appropriate to rule on the defendant'samended motion to strike.

General Statutes § 45a-251

Whether the Legalzoom Will Satisfies the Statute

Connecticut's Statute of Wills, § 45a-25 I, provides: "Awill or codicil shall not he valid to pass any property unlessit is in writing, subscribed by the decedent and attested bytwo witnesses, each of them subscribing in the testator'spresence: but any will executed according to the laws ofthe state or country where it was executed may be admittedto probate in this state and shall be effectual to pass anyproperty of the decedent situated in this state." "[O]ur[ Sjtatute [of Wills] amounts to a positive rule for thetransmission of property, which must be complied with, asa complete act at the time of execution, or never, so far asthe act of the testator is concerned." (Emphasis added;internal quotation marks omitted.) Ilatheway v. Smith, 79Conn. 506, 511. 65A, 1058 (1907). The statute has, fromits inception, been treated as an act that "permits adisposition of property by will upon compliance with theprescribed conditions." (Emphasis added.) Id. Thus, to bevalid, a will must strictly comply with the requirements ofthe statute. See Gardner v. Balboni, 218 Conn. 220, 225,588 A.2d 634 (1991); see also Hatheway v. Smith, supra,79 Conn. 51 1 (Statute of Wills "prohibitory and

exhaustive"). The statute is designed to "effectuate thepolicies of safeguarding titles and frustrating fraudulentclaims." Starcez v. Kida, 183 Conn. 41, 45 n. 2, 438 A.2d1157 (1981).

The defendant argues that the Legalzoom will does notcomply with the strictures of § 45a-251 because it wasneither subscribed by the decedent nor signed by twowitnesses in the decedent's presence. The plaintiff does notdispute that the Legalzoom will does not satisfy the statuteand the allegations of the plaintiff's complaint, and areview of the Legalzoom will itself', confirm the validity ofthe defendant's position.

*11 The language of § 45a-251 plainly provides that forany testamentary instrument to be valid it must besubscribed by the decedent and attested by two witnessesin the decedent's presence. Gardner v. Balboni, supra, 218Conn. 225. In the present case, the will is not subscribed bythe decedent or two witnesses. Accordingly, the courtconcludes that the Legalzoom will fails to satisfy thestatute.

The plaintiff argues, nevertheless, that the court should notgrant the defendant's motion to strike because either (1) §45a-251 violates article first §§ 1 and 20 of theConnecticut Constitution because the statute is arbitrary inlight of its purpose and, therefore, fails rational basisscrutiny, or (2) the court should adopt the "harmless error"doctrine followed by several other states, which provides

that a will is not invalid for failing to comply with statutoryformalities if the proponent can establish by clear andconvincing evidence that the decedent adopted thedocument as his or her will. The plaintiff contends that thepresent case is one to which the harmless error doctrineshould apply. The court will address the plaintiff'sarguments in turn.

2

Equal Protection

The court first addresses the plaintiff's argument that "asapplied to the plaintiff and the decedent, § 45a-251 offendsthe equal protection guarantees enshrined in article first, §§

1 and 20, of the Constitution of Connecticut because itestablishes two classes of people and then confers unequalbenefits on those two classes. To wit, the testamentarywishes of those who utilize authenticatio❑ techniques thatwere available when the first Statute of Wills waspromulgated under King Henry VIII in 1540 are honored,

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whereas the testamentary wishes of those who employmodern techniques to safeguard the authenticity of theirwills are ignored."

In Connecticut, the right to equal protection of the laws isderived from article first, §§ I and 20 of the Constitution ofConnecticut. The Constitution of Connecticut, zmicle first,§ I, provides, in pertinent part: "All men when they form asocial compact, are equal in rights; and no Mall or set ofmen are entitled to exclusive public emoluments orprivileges from the community." Similarly, article first, §20, of the Constitution of Connecticut provides: "Noperson shall be denied the equal protection of the law norbe subjected to segregation or discrimination in theexercise or enjoyment of his or her civil or political rightsbecause of religion, race, color, ancestry or nationalorigin."

"[T]he constitutionality of a statute presents a question oflaw ... It [also] is well established that a validly enactedstatute carries with it a strong presumption ofconstitutionality, [and that] those who challenge itsconstitutionality must sustain the heavy burden of provingits unconstitutionality beyond a reasonable doubt ... Thecourt will indulge in every presumption in favor of thestatute's constitutionality ... Therefore, MI-len a questionof constitutionality is raised, courts must approach it withcaution, examine it with care, and sustain the legislationunless its invalidity is clear." (Internal quotation marksomitted .) Kerrigan v. Commissioner o/ Public Health, 289Conn. 135, 155, 957 A.2d 407 (2008).

*12 "Hederal constitutional and statutory law establishesa mininuun national standard for the exercise of individualrights and does not inhibit state governments fromaffording higher levels of protection for such rights."(Emphasis in original; internal quotation marks omitted.)N. Accordingly, a determination that a constitutional claimwould fail to pass muster under traditional federalconstitutional law analysis is not automatically fatal to aconstitutional claim. Instead, in such a scenario, State v.Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992),directs the courts of this state to consider whether the stateconstitution would provide more protection. Because,however. federal law does set the minimum guidepost forconstitutional claims brought under our state constitution,the first step for the court is to analyze the constitutionalityof the statute under traditional federal and state equalprotection analyses. See City Recycling, inc. i'. State, 257Conn. 429. 444. 778 A.2d 77 (2001) ("Before undertakinga Geisler analysis ... we ordinarily would conclude, as anecessary predicate, that [a statute' could withstandscrutiny under traditional equal protection analysis").

Whether § 45a-251 Treats Similarly Situated IndividualsDifferently

"[T]he concept of equal protection [under both the stateand federal constitutions] has been traditionally viewed asrequiring the uniform treatment of persons standing in thesame relation to the governmental action questioned orchallenged ... Conversely, the equal protection clauseplaces no restrictions on the state's authority to treatdissimilar persons in a dissimilar manner ... Thus, [t]oimplicate the equal protection [clause] . . it is necessarythat the state statute ... in question, either on its face or inpractice, treat persons standing in the same relation to itdifferently ... 'Accordingly], the analytical predicate [of anequal protection claim' is a determination of who are thepersons [purporting to be] similarly situated ... Thesimilarly situated inquiry focuses on whether the [plaintiffis] similarly situated to another group for purposes of thechallenged government action ... Thus, [t [his initial inquiryis not whether persons are similarly situated for allpurposes, but whether they are similarly situated forpurposes of the law challenged." (Citation omitted;internal quotation marks omitted.) Kerrigan v.Commissioner of Public Health, supra, 289 Conn. 157-58.

The plaintiff argues that § 45a-251 creates an economicclassification that treats similarly situated individualsdifferently. More specifically, the plaintiff argues that: "[§45a-251 ] creates two classes of testators. The first iscomprised of those testators whose will utilizes theformalities required by the statute and whose property isdevised according to the testamentary intent set forth inthat will. The second class of testators created by § 45a-25 I includes those who choose to devise property via a willthat fails to heed the formalities required by the statute, andwhose property is not devised according to thetestamentary wishes set forth in the will." In response, thedefendant argued at the short calendar that § 45a-25 I doesnot create a classification at all hut, instead, requires allindividuals wishing to create a will to comply with thestatutory formalities.

*13 The court agrees with the defendant that § 45a-251does ❑ot create a classification—that is to say, § 45a-251does not treat similarly situated individuals differently.The plain language of the statute clearly provides that itapplies to all testamentary instruments and, by extension,to all testators. Thus, pursuant to the statute, everyindividual who desires to make a will must do so in the

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Litevich v. Probate Court, Dist. of West Haven, Not Reported in Aid (2013)2013 WL 2945055

manner prescribed.

To the extent that the statute may appear to treatindividuals differently—in the sense that it treats putativetestators who do follow the statutory formalities differentlyfrom putative testators who do not—the plaintiff does notprovide specific analysis as to how these two groups aresimilarly situated. The court concludes that to the extentthe statute may make a classification in this manner, it doesso because the two groups are not similarly situated and,therefore, the statute does not implicate the equalprotection clauses of the United Suites or ConnecticutConstitutions.

Despite the fact that the plaintiff argues that Connecticut'sStatute of Wills finds its origin in the version first enactedby King Henry VIII in 1540, our Supreme Court has noteda stark contrast between the two acts. In HaiheivaySmith, supra, 79 Conn. 514, the court observed that "English courts have apparently treated [the Statute ofWills] as one in derogation of the common law rather thanas an act giving the power of testamentary disposition ofproperty and defining the limits of the power thus given ..."(Emphasis added.) Instead, in Connecticut, the Statute of

Wills is "a positive rule for the transmission of property."(Emphasis added.) Id., 51 1. It is an act that "permits adisposition of property by will upon compliance with theprescribed conditions." (Emphasis added.) Id. Thus, incontrast to the English version of the statute, Connecticuttreats the Statute of Wills as a legislative grant of power,not as an act modifying the common law or, by extension,an act that modifies a natural right to make a testamentarydisposition.

Testators who comply with the statute have exercised thegrant of power given them by the legislature in accordancewith the reasonable conditions placed upon that power.Further, such testators have provided what our legislature,in authorizing the passing of property by will, hasdetermined to be reliable evidence that a will is valid.Testators who fail to comply with the statute have notproperly exercised the testamentary power given by thelegislature and have not provided what the legislature hasdetermined is reliable evidence of the absence of fraud.The two groups do not stand upon an equal footing.Accordingly, the fact that § 45a-251 is a statute thatauthorizes—i.e., grants the power to make—testamentarydispositions gives great weight to the conclusion that theStatute of Wills does not treat similarly situated individualsdifferently because the act sets one set of requirements thatmust be followed by all testators.

*14 For this same reason, the court rejects the plaintiff'sargument that the statute impermissibly distinguishes

between similarly situated individuals on the basis of achoice to utilize modern authentication techniques over "antiquated" authentication techniques. Even a putativetestator who utilizes the most modern and reliableauthentication techniques is not similarly situated to atestator who complies with the statute. Without astandardized set of authentication techniques, the ability ofthe statute to further its purposes is eroded. Were theplaintiff's argument taken to its logical extreme, theProbate Court, instead of being permitted to rely upon thestatute's formalities as evidence that a will was validlyexecuted, would be constitutionally mandated to examinein each case whether a testator who did not utilize thestatutory formalities had, nonetheless, used equallyreliable drafting and authentication techniques." In sum, §45a-25 I does not create an impermissible classification,either on its face or as applied to the facts of the presentcase.

ii

Rational Basis Review

Were the court to agree that § 45a-251 creates aclassification, the plaintiff's argument would, nonetheless,still founder. Assuming, arguendo, that the statute didcreate an economic classification that treats similarlysituated individuals differently, the court will applyrational basis review.' See, e.g.. City Recycling, Inc. v.State, supra, 257 Conn. 445 ("In the context of an equalprotection challenge to social and economic legislation thatdoes not infringe upon a fundamental right or affect asuspect group, the classification drawn by the statute willnot violate the equal protection clause if it is rationallyrelated to a legitimate public interest." [Internal quotationmarks omitted.] ); see also Fulton Corp v. Faulkner, 516U.S. 325, 345, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996)(economic classification warrants rational basis review).

"This court has held, in accordance with the federalconstitutional framework or analysis. that in areas of socialand economic policy that neither proceed along suspectlines nor infringe fundamental constitutional rights, thelelqual [p]rotection lellause is satisfied [as! long as [ ( I) .1there is a plausible policy reason for the classification ... [(2) I the legislative facts on which the classification isapparently based rationally may have been considered tobe true by the governmental decisionmaker ... and 1 (3)the relationship of the classification to its goal is not soattenuated as to render the distinction arbitrary or irrational..." (Citations omitted; internal quotation marks omitted.)

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Kerrigan v. Co nissioner of Public Health, supra, 289Conn. 158-59.

The plaintiff concedes that § 45a-251 satisfies the first twoprongs of rational basis analysis. Namely, there is aplausible policy reason for the classification and thelegislature may rationally have considered the legislativefacts on which the classification is based to be true-that isto say, that the formalities required by § 45a-25 I woulddeter fraud. The plaintiff argues, however, that therelationship of the classification to its goal is so attenuatedas to render the classification arbitrary or irrational. Moreparticularly, the plaintiff contends that the statute isdesigned to effectuate the policies of safeguarding titlesand frustrating fraudulent claims by requiring a testator toreduce his or her will to writing and subscribe the will inthe presence of two witnesses, who must also subscribe thewill. Thus, the plaintiff argues that "Ii Implicit in § 45a-25 Iis the irrebuttable presumption that a will authenticatedutilizing any method other than through compliance withthe statutorily required formalities is a fraud."

*15 The plaintiff argues further that the statute isimpermissibly attenuated from its purpose of preventingfraud because it is both overinclusive and underinclusive.The plaintiff contends that the statute is overinclusivebecause it voids many wills that are authenticrepresentations of the testator's intent. The plaintiff states,as an example, that a will created by the testator via digitalmeans and which utilizes multiple modern forms of digitalauthentication, such as the Legalzoom will, is irrefutablypresumed fraudulent by the statute, while a will drafted bya third party who never knew the testator, but whichotherwise complies with the statutory formalities, ispresumed valid. In this fashion, the plaintiff argues, thestatute conclusively presumes certain wills to be fraudulentdespite the fact that the circumstances of their creationwould establish otherwise. The plaintiff also contends thatthe statute is underinclusive because it fails to precludewills created under circumstances in which all would agreethat the will was fraudulent. For example, the statute could,presumably, admit to probate a will that was created via acivil conspiracy, wherein one individual drafts and signsthe will as the testator, and two others "witness" thesignature. The defendant does not respond to the plaintiff'sarguments.

The court does not agree with the plaintiff that § 45a-251is so attenuated from its purpose that it fails to pass musterunder traditional rational basis analysis. The goal ofpreventing fraudulent testamentary instruments hasperhaps never been more important than it is in the modernage. The information revolution, despite all of its myriadbenefits, has made it more possible than ever to commit

identity theft or fraud through electronic means, especiallyvia the internet and social media. Thus, the statute's goal ofavoiding fraud is well-served by the continued requirementthat two individual witnesses attest that the testatordeclared a document to be his or her will and subscribedthat will in the witnesses' presence. The formalities are notsome mere archaic annoyance designed to hamper theintent of a testator who wishes to use modern technology.Instead, the formalities required by § 45a-25 I continue toprovide a process that has in the past and continues todayto ensure the existence of reliable evidence that anindividual's exercise of legislatively-granted testamentarypower is valid, and that the testamentary document itself iswhat it purports to be. The statute is not, therefore, tooattenuated from its purpose.

Further, the court cannot conclude that the plaintiff has methis heavy burden of establishing that the statute violatesthe testator's equal protection rights as applied to this case.The jurisprudence of our Supreme Court has longrecognized as acceptable the effect that some wills that doaccurately represent the testamentary wishes of theircreators will he denied probate under the statute. Thestatute does so because "Hit treats the general benefitsecured by such [statutory formalities! as outweighing theoccasional possible misfortune that may be caused throughneglect to comply with the arbitrary conditions imposed asnecessary to the enforcement of the [statutoryformalities]." Hatheway Smith, supra, 79 Conn. 522.

*16 Here, the plaintiff has, in effect, asked this court to findthat the decedent possessed a constitutionally protectedright not to comply with the statute because the decedentutilized a number of authentication techniques which,although not provided by the statute, purportedly confirmjust as well that the Legalzoom will is valid. The court doesnot agree, however, that the result of the occasional denialof an otherwise non-fraudulent will is a matter ofconstitutional importance each time it occurs.

iii

Geisler Analysis

The determination that § 45a-251 survives traditionalequal protection analysis is not, however, the end of theinquiry. Instead, State v. Geisler, supra, 222 Conn. 672,requires this court to examine whether the Constitution ofConnecticut affords the plaintiff broader protection. "[tinSlate v. Gelder, 222 Conn. 672, 685, 610 A.2d 1225(1992), [the Supreme Court] set forth six factors that, to the

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extent applicable, are to be considered in construing thecontours of our state constitution so that we may reachreasoned and principled results as to its meaning. Thesefactors are: (1) the text of the operative constitutionalprovision; (2) holdings and dicta of [the Supreme Court]and the Appellate Court; (3) persuasive and relevantfederal precedent; (4) persuasive sister state decisions; (5)the history of the operative constitutional provisions,including historical constitutional setting and the debatesof the framers; and (6) contemporary economic andsociological considerations, including relevant publicpolicies ... Although, in Geisler, [the Supreme Court]compartmentalized the factors that should be considered inorder to stress that a systemic analysis is required, [thecourt] recognizied] that they may be inextricablyinterwoven ... [Moreover], not every Geisler Factor isrelevant in all cases." (Citation omitted; internal quotationmarks omitted.) Kerrigan Commissioner of PublicHealth, supra, 289 Conn. 157.

The plaintiff argues that if the court concludes that § 45a-251 passes traditional equal protection analysis, the courtshould find that the Constitution of Connecticut providesgreater protection pursuant to five of the six Geislerfactors. Broadly, the plaintiff argues: (1) the text andhistory of the Connecticut Constitution, when combinedwith the history of Connecticut's Statute of Wills,establishes that Connecticut citizens traditionally enjoyedbroad testamentary rights, including the right to passproperty outside of the statutory formalities;" (2)persuasive federal precedent establishes that testamentaryfreedom is entitled to constitutional protection, (3)persuasive precedent from our sister states establishes thesame; and (4) contemporary policy considerations supportthe existence of a constitutionally protected right. Theplaintiff also notes with regard to the sixth factor—holdings and dicta from our Supreme Court or AppellateCourt—that because the issue is a matter of firstimpression there is no such pertinent holdings or dicta. Thecourt will address each of the plaintiff's arguments in turn.

*17 Regarding the first and second Geisler factors, thecourt agrees with the plaintiff that the text and history ofthe Constitution of Connecticut indicates that theprovisions of article first, § 20 are to be read expansively.The Supreme Court observed in Kerrigan v. Commissionerof Public Health, supra, 289 Conn. 164-65, that "thehistory surrounding the adoption of article first, § 20, of thestate constitution indicates that its drafters intended thatprovision to embody the very strongest human rightsprinciple that this convention can put forth to the people ofConnecticut ... and, in accordance with that purpose, thatthe provision should be read expansively ... [Elven if wewere to assume, arguendo, that the groups enumerated in

article first, § 20, as amended, were intended to constitutean exhaustive list of suspect classes, the plaintiffs are notbarred from recognition as a quasi-suspect class ..."(Citations omitted; internal quotation marks omitted.) Ourconstitution's equal protection clause is to he read broadly,but the plaintiff has not claimed membership in a suspector quasi-suspect class. Instead, the plaintiff concedes thatthe present classification, if there he one at all, is aneconomic classification that is reviewed under the rationalbasis test, the least exacting of all forms of constitutionalscrutiny.

In relation to the history of the statute itself the plaintiffargues that "the common law rights of Connecticut citizensprior to the adoption of our state constitution in 1818further helps to illuminate the history of testamentaryfreedom in Connecticut." The plaintiff contends furtherthat, prior to 1725, there are several examples of willsbeing admitted to probate in Connecticut despite the factthat the wills did not necessarily strictly comply withstatutory requirements. The plaintiff therefore concludesthat "the citizens of Connecticut have always enjoyedtestamentary freedom, which in the early portion of ourstate's history included the right to use wills that did notalways conform to the formalities imposed on wills at thattime."

The court disagrees with the plaintiff's interpretation of thehistory of Connecticut's Statute of Wills as affordingexpansive testamentary freedom. instead, as alreadyobserved, the Supreme Court recognized as early as 1907that testamentary rights in Connecticut had always been acreature of statute. See Hot heway P. Smith, supra, 79 Conn.5 11 (Statute of Wills positive rule that "permits adisposition of property by will upon compliance with theprescribed conditions." [Emphasis added.] ) Further, sinceat least 1821, the statute has been considered "not merelydirectory, but prohibitory and exhaustive." Id., 5I6-17. Itis true the court in Hathewa y did note that "the privilege ofmaking wills by word of mouth or nuncupative wills, givenby the first Statute of Wills, was occasionally used until1750 and possibly until forbidden by the act of 1821 „."Id., 516. But the court also observed that the privilege tomake a nuncupative will was "given by the first Statute ofWills," and "seems to have fallen into disuse prior to1 18211." Id. Accordingly, the court is unable to concludethat, early in its history, Connecticut viewed testamentaryfreedom as an expansive common-law right. Instead,Connecticut has always treated the right to make atestamentary disposition of property as a grant of power bythe legislature, subject to the legislature's rationalrestrictions.

*18 With respect to the third factor, persuasive federal

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precedent, the plaintiff relies heavily upon the U.S.Supreme Court's holding and analysis in Model v. Irving,481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d. 668 (1987), tosupport the proposition that federal precedent would favorthe finding of a constitutionally protected equal protectionright to the testamentary disposition of one's property. Thecourt disagrees with the plaintiff's characterization of/lode/ for three reasons. First, as the court has alreadyconcluded above, § 45a-251 passes muster undertraditional federal equal protection analysis. Second,although the plaintiff is correct that Node! v. Irving. supra.481 U.S. 715. stated "the right to pass on valuable propertyto one's heirs is itself a valuable right," that case did notconcern the equal protection clause, but the takings clauseembodied in the fifth amendment of the United StatesConstitution. Third, as explained below, Hock! is readilydistinguishable from the present case.

/lode/ concerned a challenge to § 207 of the Indian LandConsolidation Act of 1983, Publ. 97-459, Tit. Ik 96 Stat.2519, a statute that was designed to address theincreasingly extreme fractionalization of land owned byNative Americans. Specifically, in the early nineteenthcentury, Congress enacted legislation that was designed toprotect the Native American population from the "improvident disposition of their lands to white settlers ..."!lode! v. Irving, supra, 481 U.S. 707. This early legislationprohibited members of the Native American populationfrom passing real property that was located within anIndian reservation via a testamentary instrument prior tothe year 1910. Id., 706. Instead, all such property was topass through the appropriate state's law of intestacy. Id.Over time, however, the result of this scheme was theextreme fractionalization of the ownership of plots of land.Id., 712-13. The average acre was owned by 14individuals, with some acres being owned by as many as439 individuals. Id. In order to ameliorate the problem,Congress passed § 207 of the Indian Land ConsolidationAct, which provided for the automatic escheat of land tothe government of the Indian Reservation if the individualowner's interest in a given plot of land was below a certainthreshold at the time of the individual's death. Id., 712.

The plaintiffs in Hodel were intended beneficiaries oftestamentary gills under various wills that failed due to §207, which the plaintiffs claimed amounted to a violationof the takings clause of the fifth amendment of the UnitedStates Constitution. After observing that the law amountedto a "total abrogation of the right to pass property," thecourt found the statute did constitute an unjust takingwithout compensation. Id., 716.

The present case is readily distinguishable from Hodel.The present case does not involve a claim of unjust taking

without compensation, a type of claim that requires aplaintiff to establish an interest in real property. Stop theBeach Renourishment, Inc. v. Dept. of EnvironmentalProtection, 130 S.Ct. 2592, 2601, 177 L.Ed .2d 184(2010). To the contrary, the present claim requires theplaintiff to establish that the decedent was a member of asuspect class or, otherwise, that the law cannot surviverational basis review. Kerrigan v. Commissioner of PublicHealth, supra, 289 Conn. 158-60. More significantly, §45a-251 does not amount to a "total abrogation" of theright to pass property. To the contrary, the statute is a grantof the power to make testamentary dispositions and, assuch, exists to facilitate the passing of property by, interalia, ensuring a reliable method of avoiding fraud.Accordingly, the federal precedent relied upon by theplaintiff is readily distinguishable from the present caseand the court cannot conclude that Hodel points in thedirection of expanding the equal protection guarantees ofthe Connecticut Constitution to include the testamentaryfreedom the plaintiff requests. The court, through its ownresearch, is unable to locate other federal precedent thatwould suggest otherwise.

*19 The plaintiff argues that the fourth Geisler factor—persuasive precedent from other states-also militates infavor of expanding protection. In particular, the plaintiffrelies upon Estate of French, 365 A.2d 621 (D. C.1976),Estate of Cavil!, 459 Pa. 41 1, 329 A.2d 503 (1974), andShriners Hospital for Crippled Children v. Zrillic, 563So.2d 64 (Ha.1990), three cases which invalidatedmortmain" statutes upon equal protection grounds. Theplaintiff also relies upon Ariumemacher v. State, 129 Wis.190, 108 N.W. 627 (1906), wherein the Supreme Court ofWisconsin stated that the right to pass property by will isan inherent right as opposed to a legislative grant of power.

Nunnemacher is inapposite to this court's analysis becauseit goes against our state's own understanding of the right topass property via a testamentary instrument as one that iswholly statutory in nature. Hathewav v. Smith, supra, 79Conn. 511. Although it weighs slightly in favor of theplaintiff that at least some of our sister states concludeotherwise, the fact remains that Connecticut does not. Thecourt in Nunnemacher itself observed that theoverwhelming number of states treated testamentaryinheritance as a creature of statute. Nunnemacher v. State,supra. 108 Wis. 628. The plaintiff has not, therefore,provided an adequate rationale upon which this court mayoverturn more than one hundred years of Connecticutprecedent in order to join the minority.

The other three cases upon which the plaintiff relies, whilealso weighing in the plaintiff's favor, do not conclusivelysuggest that the Constitution of Connecticut provides the

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type of equal protection rights that the plaintiff advocates.Each of Estate of French, supra, 365 A.2d 621, Estate ofCavil!, supra, 329 A.2d 503, and Shriners Hospital jrCrippled Children v. Zrillic, supra, 563 So.2d 64,addressed a mortmain statute that placed specificrestrictions upon the manner in which a testator coulddevise property to a religious organization. Consequently,in each case, the court was faced with a suspectclassification whereby the relevant statute treated testatorsdesiring to give gifts to religious organizations differentlythan testators who did not desire to do so. As previouslynoted, Connecticut's Statute of Wills does not treatsimilarly situated individuals differently.

Finally, in relation to the fifth factor, the plaintiff arguesthat contemporary policy considerations warrant theexpansion of equal protection rights to includecircumstances such as the plaintiff's. In support of thisargument, the plaintiff observes that Connecticut's Statueof Wills has remained largely unchanged since 1821, andthat over the course of approximately the last four decadesseveral states have come to decry strict compliance to theirown Statutes of Wills as unreasonable in somecircumstances. These states have, instead, adopted the "substantial compliance"' or "harmless error" exceptionprovided by both the Uniform Probate Code § 2-503, p.141 ( I 997), and I Restatement (Third), Property, Wills andOther Donative Transfers § 3.03, p. 217 (1999). Theharmless error doctrine provides, broadly, that a will whichfails to comply with statutory formalities will not beinvalid if the proponent can prove, by clear and convincingevidence, that the testator adopted the document as his orher will.

*20 As previously noted, although the court agrees that theabrogation in other states of statutory formalities weighsslightly in favor of the plaintiff, this factor, when combinedwith the others, does not establish that the ConnecticutConstitution either presently provides or should provideequal protection rights of the type the plaintiff asserts. Theexistence of the harmless error doctrine in other statesestablishes, at most, that certain states have concluded thatthe statutory formalities are overly strict.'" As discussed inthe next section, the harmless error doctrine remains aminority doctrine in few jurisdictions throughout theUnited States. In addition, and significantly so, the fact thatstates have chosen the harmless error doctrine as theirresponse to the perceived-harshness of the Statute of Wills,as opposed to some other abrogation, suggests that theaegis of constitutional law is too extreme a remedy for thesometimes harsh results of the statute. The plaintiff has notproduced, and the court has not located, a single state thathas concluded that the appropriate response to theinflexibility of the Statute of Wills is constitutional

protect ion.

Having reviewed all of the Geisler factors that are relevantto this case. the court cannot conclude that the ConnecticutConstitution provides broader protection to thetestamentary rights of the citizens of this state than thatwhich is provided through traditional equal protectionanalysis. Accordingly, the plaintiff's equal protectionargument is rejected in its entirety.

The court is not unconcerned with the plight of the partiesin the present case, nor is it unaware of the harshness of thepresent result. The fact remains, however, that the plaintiffhas not met his heavy burden of overcoming the strongpresumption that the Statute of Wills, a longstanding andvalidly enacted statute in this state, is so arbitrary orcapricious as to rise to the level of being unconstitutionalunder either the federal or state constitution.

Harmless Error

As a final matter, the court addresses the plaintiff'sargument that in order to "remedy the irrationalrequirements for will execution in § 45a-251, [the] courtshould adopt the harmless error test that has been adoptedby both the Uniform Probate Code and the Restatement(Third), Property, Wills and Donative Transfers § 3.3(1997). 1 Specifically, [the] court should read therequirements of § 45a-251 to he satisfied if the proponentestablishes by clear and convincing evidence that thedecedent adopted the subject document as his or her will."At oral argument, the defendant responded that thedecision to make a substantial alteration to the Statute ofWills, such as the adoption of an exception, is a questionreserved for the legislature. The defendant also argued thateven in those jurisdictions that follow the harmless errordoctrine, the exception applies only to minor defects, suchas where a testator signed an incorrect page. The defendantemphasizes the fact that the present case is one wherein thedecedent did not sign the will at all and, therefore, claimsthat even under the harmless error doctrine the Legalzoomwill would fail.

*21 The harmless error doctrine provides that atestamentary instrument is not invalid for failure to satisfythe execution formalities of a given jurisdiction if theproponent of the will can establish by clear and convincingevidence that the testator intended the document to be hisor her will. See Uniform Probate Code, supra, § 2-503, p.

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141 ("Although a document ... was not executed incompliance with [the formalities for execution of a will],the document or writing is treated as if it had been executedin compliance ... if the proponent of the document orwriting establishes by clear and convincing evidence thatthe decedent intended the document or writing to constitute

the decedent's will ..."); 1 Restatement (Third), supra, §3.03, p. 217 ("A harmless error in executing a will may be

excused if the proponent establishes by clear andconvincing evidence that the decedent adopted thedocument as his or her will").

According to the Restatement, "the purpose of thestatutory formalities is to determine whether the decedentadopted the document as his or her will. Modern authorityis moving away from insistence on strict compliance withstatutory formalities, recognizing that statutory formalitiesare not ends in themselves but rather the means ofdetermining whether the underlying purpose has been met.A will that fails to comply with one or another of thestatutory formalities, and hence would be invalid if held toa standard of strict compliance with the formalities, mayconstitute just as reliable an expression as a will executedin strict compliance." 1 Restatement (Third), supra, § 3.03,p. 218, comment b. Thus, "[t]he trend toward excusingharmless errors is based on a growing acceptance of thebroader principle that mistake, whether in execution or inexpression, should not be allowed to defeat intention nor towork unjust enrichment." Id. Accordingly, when applyingthe harmless error doctrine "[t]he purposive question iswhether the evidence regarding the overall conduct of thetestator establishes, in a clear and convincing manner, thatthe testator adopted the document as his or her will." Id.

The doctrine is, however, no panacea. Instead, "[i]napplying [the harmless error doctrine] to particular cases, ahierarchy of sorts has been found to emerge among theformalities." Id. For example, "Mile requirement of awriting is so fundamental to the purpose of the executionformalities that it cannot be excused as harmless under theprinciple of [the] Restatement. Only a harmless error inexecuting a document can be excused ..." (Emphasis inoriginal.) Id. Even then, "Ialmong those defects inexecution that can be excused, the lack of a signature is thehardest to excuse. An unsigned will raises a serious but notinsurmountable doubt about whether the testator adoptedthe document as his or her will." Id., 219.

To date, the Uniform Probate Code's harmless errordoctrine has been legislatively adopted in the followingAmerican jurisdictions: Colorado; Colo.Rev.Stat. § 15-1 1-503; Hawaii; Haw.Rev.Stat. § 560:2-503; Michigan;Mich. Comp. Laws § 700.2503; South Dakota; S.D.Codified Laws § 29A-2-503; and Utah: Utah Code § 72-

2-503. The doctrine appears to have been judiciallyadopted in New Jersey; Alleged Will of Ramey, 124 N.J. I.589 A.2d 1339 ( 1991); California; Estate of Black, 30Ca1.3d 880, 641 P.2d 754, 182 Cal.Rptr. 222 (1982); andPennsylvania; Kajut Will, 2 Fiduc.2d 197, 22 Pa. D. &C.3d 123 (Pa. Orphan's Ct.198 ). Finally, the common lawjurisdictions of Australia, Canada and Israel have eachadopted the doctrine. See I Restatement (Third), supra, §3.3, pp. 221-24.

*22 Neither the General Assembly nor the Supreme Courthas incorporated the harmless error doctrine into § 45a-251. Further, the court's research has revealed noConnecticut court that has addressed whether the harmlesserror doctrine is appropriate within the context ofConnecticut law. Whether to adopt the harmless errordoctrine in Connecticut is, therefore, an issue of firstimpression.

As a general principle, our common law provides thatanything that may tend to weaken the Statute of Wills is tobe guarded against. See Connecticut Junior Republic v.Sharon Hospital, 188 Conn. 1, 7 n. 8, 448 A.2d 190 (1982),overruled on other grounds by Erickson P. Erickson, 246Conn. 359, 716 A.2d 92 (1998), citing Waterbury NationalBank v. Waterbury National Bank, 162 Conn. 129, 140,291 A.2d 737 (1972). Further, "[w]hen construing astatute, [o]ur fundamental objective is to ascertain and giveeffect to the apparent intent of the legislature ... In otherwords, we seek to determine, in a reasoned manner, themeaning of the statutory language as applied to the facts of[the] case ... In seeking to determine that meaning, GeneralStatutes § I-2z directs us first to consider the text of thestatute itself and its relationship to other statutes. If, afterexamining such text and considering such relationship, themeaning of such text is plain and unambiguous and doesnot yield absurd or unworkable results, extratextualevidence of the meaning of the statute shall not beconsidered." (Internal quotation marks omitted.) In reYarisha F 121 Conn.App. 150, 156, 994 A.2(1. 296(2010).

In the present case, the plaintiff has asked the court to add a"judicial gloss" to § 45a-251 in order to interpret thatsection as satisfied if a proponent can establish by clear andconvincing evidence that a testator adopted a subjectdocument as his or her will. In support of this argument,the plaintiff contends that the testator's confirmation of thewill prior to her final purchase, when combined with theother authentication techniques the testator used and thetestator's having provided her social security number toLegalzoom, was "tantamount to a signature."' Section45a-251 is, however, plainly unambiguous, leavingnothing for this court to interpret. Our Statute of Wills is

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both "prohibitory and exhaustive." Hutheway v. Smith,supra, 79 Conn. 51 1. There is no room for play in thelanguage.

The plaintiff has requested a remedy that this court simplycannot provide. It is not for this court to decide to adopt asubstantial abrogation of an unambiguous statute that hasexisted, substantially unchanged, for almost 200 years.Questions concerning whether alternative modernauthentication techniques are equally reliable and/or moredesirable are, instead, properly reserved for the legislature.

Moreover, were the court to agree with the plaintiff thatConnecticut law allows for the harmless error doctrine, itwould not apply to the facts of this case. As the defendantobserves, and as confirmed by the commentary to 1Restatement (Third), supra, § 3 .03, within the harmlesserror doctrine exists a "hierarchy" of defects. Failure tosign a will at all, as with the case presently before the court,is considered by those states that have used the doctrine tobe one of the most difficult defects to overcome. /d.Therefore, even if Connecticut were to follow the doctrine,it would still be a stretch to apply it to facts such as those

Footnotes

2

3

4

6

7

8

Both wills are attached to the complaint as exhibits.

presently before the court, where the will was signed byneither the decedent nor any witnesses. The "electronicsignature" claimed by the plaintiff is not sufficientbecause, even if electronic signing were allowed by § 45a-251, a question the court does not now decide, thesignature does not appear on the face of the will.Accordingly, the court rejects the plaintiff's argumentsrelating to the harmless error doctrine.

CONCLUSION

*23 For the foregoing reasons, the defendant's motion tostrike is granted in its entirety.

All Citations

Not Reported in A.3d, 2013 WL 2945055

General Statutes § 45a-251 provides: "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; but any willexecuted according to the laws of the state or country where it was executed may be admitted to probate in this state andshall be effectual to pass any property of the testator situated in this state."

In addition to the administrator, the complaint names as defendants the following parties: The Probate Court for theDistrict of West Haven, Hadassah, the Woman's Zionist Organization of America (Hadassah) and eight additionalbeneficiaries of the 1991 will. The complaint also names Jeanette Sullivan and Wei—Li Lee, additional beneficiaries of theLegalzoom will, as parties to the appeal. Only Hadassah has filed an appearance. Hadassah does not join Brennan in thepresent motion to strike.

Although Sullivan was a party in the proceedings before the Probate Court, during which she alleged that she was abeneficiary of the Legalzoom will, Sullivan has not joined the plaintiff in the present appeal.

Section 45a-251 does not require that a decedent's signature be accompanied by a notary's attestation.

A copy of the May 24, 2012 decree is attached to the complaint as an exhibit.

A copy of the July 16, 2012 decree is also attached to the complaint as an exhibit.

Although the argument that the court lacks subject matter jurisdiction is more appropriately raised through a motion todismiss, the court notes that "[t]he objection of want of [subject matter] jurisdiction may be made at any time ... [a]nd thecourt or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ... Therequirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in theproceedings." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23A.3d 1176 (2011).

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10

11

12

13

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The plaintiff does not attempt to argue that he is statutorily aggrieved.

Despite stating that the plaintiff has standing to seek vindication of "both" his rights and the rights of the decedent, theplaintiff does not assert a violation of his personal constitutional rights in either his complaint or his memorandum of law.Instead, the plaintiff argues in his memorandum only that, because the decedent is deceased, her fundamental right tomake a testamentary disposition of her property must be vindicated by an administrator of her estate, in this case, theplaintiff.

The court finds it significant that the statute is unconcerned with the origin of a particular document. The statute does not,for example, state that a will drafted via traditional means shall be valid whereas a will created via an internet-baseddrafting service is not. The law merely provides that all wills must be executed in accordance with the statutoryformalities.

The plaintiff concedes that any classification made by § 45a-251 is subject to rational basis review.

This argument combines Geisler factors nos. one and two.

A typical mortmain statute limited the manner in which a testator could make a testamentary gift to a religiousorganization. See, e.g., Woodruff v. Marsh, 63 Conn. 125, 135, 26 A. 846 (1893).

The nomenclature "substantial compliance" appears to derive from Professor Langbein's 1975 law review article: J.Lanbgein, "Substantial Compliance With the Wills Act," 88 Harv.L.Rev. 489 (1975). More recently, however, both theUniform Probate Code and Restatement have used the name: "harmless error doctrine."

The harmless error doctrine has been legislatively adopted in: Colorado, Colo.Rev.Stat. § 15-11-503; Hawaii;Haw.Rev.Stat. § 560:2-503; Michigan; Mich.Comp. Laws § 700.2503; South Dakota; S.D. Codified Laws § 29A-2-503;and Utah; Utah Code § 72-2-503. The doctrine has been judicially adopted in: New Jersey; Alleged Will of Ranney, 124N.J. 1, 589 A.2d 1339 (1991); California; Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 182 Cal.Rptr. 222 (1982); andPennsylvania; Kajut Will, 2 Fiduc.2d 197, 22 Pa.D. & C.3d 123 (Pa. Orphan's Ct.1981). See also 1 Restatement (Third),supra, § 3.3, pp. 221-24.

The court notes that General Statutes § 1-267(8) provides: "'Electronic signature' means an electronic sound, symbol orprocess attached to or logically associated with a record and executed or adopted by a person with the intent to sign therecord." Similarly, Black's Law Dictionary (9th Ed.2009) defines "signature" to mean "A person's name or mark written bythat person or at the person's direction ... Any name, mark, or writing used with the intention of authenticating adocument." Black's Law Dictionary (9th Ed.2009) also provides a definition for "electronic signature," which is defined as"An electronic symbol, sound, or process that is either attached to or logically associated with a document (such as acontract or other record) and executed or adopted by a person with the intent to sign the document. Types of electronicsignatures include a typed name at the end of an email, a digital image of a handwritten signature, and the click of an 'Iaccept' button on an e-commerce site." The defendant has not attempted to dispute the plaintiff's claim that theauthentication and confirmation process undertaken by the testator in the creation of the Legalzoom will could constitutean electronic signature. Whether it is a signature or not is not pertinent to the court's analysis because the document didnot contain a signature at all.

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