716 A.2d 92 (Conn. 1998)
Alicia Erickson, the daughter of decedent Ronald K. Erickson, appealed from a trial court judgment that affirmed the Probate Court’s decree admitting her father’s will to probate in favor of defendant Dorothy Erickson, the executrix of the estate.1
On September 1, 1988, the decedent executed a will while unmarried and the father of three daughters.2 Two days later, on September 3, 1988, he married the defendant.3 He died on February 22, 1996.4
The will named the defendant as executrix and guardian of the decedent’s daughters and included among its beneficiaries the defendant’s four children—Thomas Mehring, Christopher Mehring, Maureen Mehring, and Kathleen Mehring—whose identities the trial court admitted into evidence.5 The plaintiff filed a motion in limine before trial seeking to limit proof to the will, the marriage certificate, and the death certificate.6 The defendant responded with a detailed offer of proof concerning the decedent’s intent and his communications with his attorney.7
The trial court granted the motion in limine as to most extrinsic evidence of intent but denied it regarding the beneficiaries’ identities.8 It then concluded after a de novo hearing that the will’s provisions and the two-day interval between execution and marriage supplied clear and convincing evidence that the instrument accounted for the contingency of marriage.9 The plaintiff appealed to the Appellate Court, which transferred the case to the Supreme Court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).10 The defendant cross-appealed the evidentiary ruling excluding the balance of her proffered proof.11
Whether, pursuant to General Statutes (Rev. to 1995) § 45a-257 (a), the trial court should have admitted extrinsic evidence regarding the decedent’s intent that his will would not be revoked automatically by his subsequent marriage?12
Under General Statutes (Rev. to 1995) § 45a-257 (a), a subsequent marriage revokes a prior will unless the will itself makes provision for that contingency.13 Extrinsic evidence of a scrivener’s error is admissible when offered to prove by clear and convincing evidence that the error induced the testator to execute a will he believed would remain valid after marriage.14
Yes. The established facts demonstrate that the defendant presented a detailed offer of proof describing the decedent’s communications with his attorney and the circumstances surrounding execution of the will on September 1, 1988, two days before the marriage.15 The trial court excluded most of that evidence while admitting only the identities of the defendant’s children as beneficiaries.16 Because the offer of proof, if credited, would permit a finding that a scrivener’s error caused the decedent to believe the will would survive his marriage, the rule required admission of the evidence rather than exclusion under the motion in limine.17
The trial court should have admitted the extrinsic evidence of the scrivener’s error.18
Related opinions on this issue
Justice Berdon concurred in the result reached by the majority while expressing reservation about identifying the error as a scrivener’s error.19 He agreed that Connecticut Junior Republic v. Sharon Hospital should be overruled.20 The dissent by Justice Peters, joined by Justice Shea, correctly permits opponents of a will to introduce extrinsic evidence of a scrivener’s error when proof is established by clear and convincing evidence.21
Although antiquity does not automatically disqualify common law precedents, our law should serve modern needs.22
Whether the decedent’s will provided for the contingency of his subsequent marriage?23
Whether a will provides for the contingency of a subsequent marriage is determined solely from the language within the four corners of the instrument itself, without resort to extrinsic evidence of the testator’s intent.24
No. The established facts show that the will named the defendant as executrix and guardian of the decedent’s daughters and listed her four children among the beneficiaries, yet contained no words such as “wife,” “spouse,” “marry,” “future wife,” or any equivalent reference to the contingency of marriage.25 Although the trial court drew inferences from the two-day interval between execution and marriage and from the identity of the beneficiaries, the governing rule permits consideration only of the will’s text, which supplied no such provision.26
The decedent’s will did not provide for the contingency of his subsequent marriage.27
Whether extrinsic evidence of a scrivener’s error is admissible to establish that a will provides for the contingency of a subsequent marriage?28
Extrinsic evidence of a scrivener’s error is admissible to establish that a will provides for the contingency of a subsequent marriage.29 The proponent must prove by clear and convincing evidence both the existence of the error and that the error caused the testator to execute a will he believed would remain effective after marriage.30 Such evidence overrules the contrary holding of Connecticut Junior Republic v. Sharon Hospital.31
Yes. The established facts include the defendant’s offer of proof that the scrivener implied the will would survive the marriage and that conversations between the decedent and the scrivener shortly before death could corroborate that understanding.32 When measured against the clear-and-convincing standard, this evidence would permit the trier of fact to conclude that the scrivener’s error prevented the will from containing language that would have satisfied § 45a-257 (a).33 The rule therefore authorizes admission of the evidence at a new trial.34
Extrinsic evidence of a scrivener’s error is admissible to establish that a will provides for the contingency of a subsequent marriage.
Related opinions on this issue
Justice Berdon concurred in the result reached by the majority while expressing reservation about identifying the error as a scrivener’s error. He agreed that Connecticut Junior Republic v. Sharon Hospital should be overruled. The dissent by Justice Peters, joined by Justice Shea, correctly permits opponents of a will to introduce extrinsic evidence of a scrivener’s error when proof is established by clear and convincing evidence.
Although antiquity does not automatically disqualify common law precedents, our law should serve modern needs.