Judicial District of Waterbury


Probate; Wills; Whether Trial Court Properly Calculated Surviving Spouse's Statutory Share Under General Statutes 45a-436; Whether Plaintiff Waived her Claim to Statutory Share by Contesting Will. Albert Garofalo died in 2000, leaving an estate comprised primarily of ongoing businesses and real property. That same year, his surviving spouse, the plaintiff, made a timely election pursuant to General Statutes 45a-436 against his will in favor of her statutory share, that being "a life estate of one-third in value of all the property passing under the will . . . after payment of all debts and charges against the estate. . . . " In 2008, the plaintiff requested that her statutory share be set out. The Probate Court issued a decree specifying the method by which her share should be calculated, and the plaintiff appealed that decision to the trial court. That court affirmed in part and reversed in part the Probate Court's decision. On appeal, the plaintiff contends that the trial court wrongly decided that her share should be calculated based on the value of the estate at the time that the share is set out rather than on its value at the time of death. Noting that the estate's value has diminished over the thirteen year period of its administration, the plaintiff asserts that, by not fixing the statutory share at the time of death, an estate is left open to manipulation to defeat a surviving spouse's right to elect against the will. In addition, the plaintiff challenges the trial court's decision that, pursuant to Bankers Trust Co. v. Greims, 110 Conn. 36 (1929), she is entitled to recover, for the period prior to the setting out of the share, the average yield of the estate for that period. The plaintiff contends that, because the estate's assets have not produced any income over the thirteen year period, it would be inequitable to follow Greims. She argues that she is entitled to a reasonable rate of return, specifically, the four percent interest rate that her expert proposed. Lastly, the plaintiff challenges the trial court's determination that the Probate Court properly appointed distributors under 45a-436 in light of the contentiousness between the parties. Defendant Anne Patten cross appeals, arguing that the trial court should have found that the plaintiff's claim was barred by the doctrines of waiver, estoppel and election of remedies because the plaintiff contested the will for six years after filing her notice to take an elective share and then waited two more years before asking that her share be set out. Patten also contends that the court improperly interpreted 45a-436 as not requiring that federal and state estate taxes be deducted before computing the elective share.