It’s been almost three years since Janet Moultis died, and her estate still hasn’t been settled. She left behind a detailed will that explained in plain English how she wanted her assets divvied up—and that language is why things are up in the air.
A 2007 decision from the Connecticut Supreme Court redefined what commonly used phrases surrounding survivorship mean. Now, three of Moultis’ surviving siblings are fighting to deliver her last wishes.
The will, written in 1974, reads:
“Should my husband predecease me, then I direct that all my personal household items be devised and bequeathed to my dearly beloved parents…
In the event that my dearly beloved parents MARS McCURRY and KATHLEEN McCURRY predecease me, then all of my personal household possessions… I give, devise and bequeath to my brothers and sisters who survive me… survivor take all.
In the event that my dearly beloved parents MARS and KATHLEEN McCURRY do not survive me, then I give, devise and bequeath one-half (1/2) of my estate to my dearly beloved brothers and sisters who survive me, survivors take all.”
Her will goes on to state that the other half of her estate should go to a relative from her husband’s side of the family.
At the time it was written, the language meant that if her husband and her parents passed away before her, then all of her household possessions and half of whatever was left of her estate would be split among her surviving siblings—and only them.
Now, it means something else entirely.
Three of Moultis’ siblings died before her: Mars, who was named after their father, Diane and Brian. Mars and Diane had three children each, and Brian had one child.
The executors of Moultis’ estate, which includes the attorney who helped Moultis write her will, are trying to argue that these seven nieces and nephews are entitled to the portion of her estate their parents would have received, had they still been alive.
All of Moultis’ four surviving siblings live in England, where Moultis was from. Three of them—Alex McCurry, Susan Asplin and Kathleen Broad—are fighting to preserve what they say is the intent of her will.
“She wrote it quite deliberately, and she’d mentioned it to us so many times that, because she hadn’t got any children, she wanted her estate to come to us, her brothers and sisters,” Asplin told Inside Investigator. “And it just seems to me that the American law hasn’t protected us.”
McCurry, Asplin and Broad argue that the wills specificity should have made this a simple legal matter. Instead, it has become years-long legal battle.
On one side of the ocean, in Connecticut, the attorney who worked on Moultis’ will, Eugene Kimmel, and his co-executor Matthew Sponheimer, have been pushing to follow the letter of Connecticut’s law, while overseeing Moultis’ estate. On the other side of the ocean, from England, McCurry, Asplin and Broad have been scrambling for information and struggling to navigate a foreign legal system.
An Age-Old Inheritance Problem
In 1821, the Connecticut legislature passed an anti-lapse law. The statute, “An Act for the settlement of Estates, testate, intestate, and insolvent” made it so “Whenever a devisee or legatee in any last will and testament, being a child or a grandchild of the testator, shall die before the testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed, as the devisee or the legatee would have done, had he or she survived the testator.”
Basically, if a beneficiary (legatee) who is named in a will dies before the owner of the estate (devisee/testator) and the will has not been updated, then the portion of the will that was supposed to go to the beneficiary is passed to their legal heirs.
This anti-lapse statute is meant to prevent unintended disinheritance and has deep roots in American jurisprudence. The first anti-lapse statute in the country was written in Massachusetts in 1783—four years before the Constitutional Convention.
The Connecticut law has remained largely unchanged in the last 200 years, except for the addition of siblings and stepchildren as potential legatees.
But while the language has stayed the same, the interpretation of the phrase “no provision shall be made for such contingency” changed when the Connecticut Supreme Court decided an estate dispute in 2007. That case, Fred Ruotolo, et al v. Rieje Tietjen Executor (Estate of John N. Swanson), et al, or the “Ruotolo decision,” reinterpreted the standards for survivorship clauses.
In that case, Swanson wanted to leave one-half of his property to his stepdaughter, Hazel Brennan. His will stated that she would receive this portion of his estate “if she survived” him, however, she died 17 days before him. The probate court judge who managed Swanson’s will passed Brennan’s portion of the will down to her heir, and then two other beneficiaries of the will—Fred and Charlene Ruotolo—challenged this decision.
“The appellees contend that the inclusion of words of survivorship in a will constitutes a provision for such contingency, thereby rendering the antilapse statute inapplicable,” the Appellate Court wrote in its decision on the case. “Because the bequest in the present case contains the condition ‘if she survives me,’ they claim § 45a–441 is inoperative. That simple and seemingly persuasive argument fails, however, on closer examination.”
The Appellate Court decided that, since Swanson did not name an alternative beneficiary to Brennan, her heir still received her portion of the estate. When making this decision, they took into account anti-lapse statutes in “sister states.”
In other words, in a post-Ruotolo legal landscape, writing a phrase like “if she survives me,” or, in the case of Moultis’ will, “survivor take all” no longer automatically cuts the legal heirs of a deceased beneficiary out of a will. Testators need to specify who will receive that portion of the will if the intended beneficiary predeceases them. If they don’t, then that portion of the estate passes on to the intended beneficiary’s heirs.
The Ruotolo decision was controversial.
“The judges of the Appellate Court adopted a widely-criticized minority rule without indicating, and perhaps without even realizing, they were doing so. The result potentially impacts the future interpretation of countless existing estate planning documents and leaves the Connecticut bar struggling to respond,” Quinnipiac University School of Law Professor Jeffrey Cooper wrote in the 2007 Quinnipiac Probate Law Journal. “In addition, the opinion casts a wider pall by according too little respect to the traditional role of estate planning attorneys in communicating their clients’ testamentary desires, while giving too much deference to the modern proposals reflected in the 1990 version of the Uniform Probate Code (hereinafter “the UPC”). While the case most directly impacts Connecticut probate practice, it implicates broader themes concerning the interaction between traditional estate planning principles and modern probate legislation.”
The UPC is a system of rules that was created to standardize probate procedures across different states. Only 18 states have fully adopted UPC, and Connecticut is not one of them. However, most states still use parts of it.
The judge presiding over Moultis’ estate was initially willing to follow the spirit of her will. In a recording obtained by Inside Investigator, when Moultis’ surviving siblings first met with the judge presiding over her estate, Asplin asked how many people were going to inherit the property in Moultis’ house and her estate. The judge, Benjamin Gettinger, explicitly stated that it would be the four surviving siblings.
But something changed after that. According to McCurry, the executors reached out to the surviving siblings and asked for the contact information of Mars’s, Diane’s and Brian’s children.
Sometime around then, the executors allegedly wrote a letter to Gettinger, asking him to consider including these nieces and nephews in the estate, McCurry said. When Asplin asked for a copy of the letter, at first Kimmel told her that he had lost the copy, but when she pressed him, she says Kimmel said he would send one to her as soon as possible.
“We’re still waiting 31 months later for that letter,” McCurry said in an interview in June. “We felt we had no alternative other than to consult or look for an attorney of our own.”
As of publication time, the letter still has not been shared with them.
Kimmel and Sponheimer did not respond to multiple requests for an interview. However, the lawsuit that ensued after Moultis’ siblings challenged the probate court shed light on some of their actions.
At the time of the initial hearing, which happened on June 15, 2023, Kimmel was under the impression that Connecticut’s Anti-Lapse Statute did not apply to the distribution of Moultis’ personal household items, because she included the phrase “survivor take all,” according to an Addendum to Memorandum of Law for Proposed Distribution states from the Milford-Orange District Court of Probate.
However, Kimmel later reviewed the will and determined Moultis did not explicitly include language in her will that negated the anti-lapse statute.
“Others offering an alternative analysis might argue that the Decedent included the additional language of “survivor take all” for a specific purpose. However, the Executor believes an equally plausible explanation for its inclusion is that it is mere “boiler plate” language with no true meaning to negate the Connecticut Anti-Lapse Statute. The Ruotolo Court saw boilerplate language as a potential danger which runs counter to the purpose of the Antilapse statute: to avoid the harsh effects of unintended disinheritance,” the Addendum states.
He also did not think that the “survivor take all” was sufficient evidence that she intended to cut her nieces and nephews out of the will, in a large part because of how often it appeared in her will and was used redundantly in places.
The Addendum goes on to quote a passage from the Ruotolo decision, which states, “Inclusion of words of survivorship provides neither objective evidence that a conversation about (Connecticut Anti-Lapse Statute) took place nor objective evidence that the testator considered seriously the possibility of non-survival or inquired about the meaning of expressions such as Lapsed Bequest and the protections of the anti lapse statute. Because such a survival provision often boiler-place form-book language, the testator may not understand such language could disinherit the line of descend headed by the deceased devisee.”
So, in Moultis’ will, Kimmel came to the conclusion that “since language like “survivor take all” is often boiler plate, it is not objective evidence that the Decedent included it to avoid the Anti-Lapse Statute.”
The Ruotolo case gave two clear paths on how to avoid the anti-lapse statutes: “unequivocally express the intent to avoid the anti lapse statute” or give an alternative bequest. Moultis—in her will that Kimmel helped write decades before the Ruotolo case—did neither, so Kimmel determined that the anti-lapse statutes applied.
Trusting Estate Planners
According to vLex, which is a legal database for lawyers that uses artificial intelligence to gather information, the Appellate Court decision for Ruotolo v. Tietjen has been cited in 10 cases in the state. The Connecticut Supreme Court decision—which upheld the Appellate Court’s ruling—has been cited in seven cases.
This is not a comprehensive view of the ruling’s impact, however.
Most estates are managed outside of probate court, meaning individual executors could take the Ruotolo decision into account without there being a legal record of it. The database also does not include information about ongoing legal cases, like what is happening with Moultis’ will. If a judge were to rule against the executors and cut Moultis’ nieces and nephews out of her will, then the Ruotolo decision may not appear in any legal database, even though it played a huge role in the proceedings – and had a real human impact.
“Because of all of this, we’ve never had the opportunity to mourn my sister,” Asplin said.
McCurry, Asplin and Broad are each in their 70s and living on pensions. Broad, who recently underwent several unsuccessful rounds of cancer treatments, is now on palliative care. And all three of them have children of their own.
They have spent a combined $120,000 on lawyer fees.
“Because it’s divided between three of us, we’ve been able to raid our savings,” Asplin said. “They’re vastly depleted now. What we put aside, we never expected to pay it on attorneys’ fees.”
And their lawyers are not the only ones charging fees. McCurry, Asplin and Broad are not sure who is paying Kimmel and Sponheimer, but there is a provision in Moultis’ will about reimbursement for legal and administrative fees.
“I direct that all my just debts, funeral and administration expenses be paid as soon after my decease as may be practical, except mortgages secured by real estate; and I further direct that all the estate, inheritance, legacy, succession and transfer taxes levied or assess upon or with respect to any property which is included as part of my gross estate for the purpose of such tax be paid, and said tax shall be paid out of my estate as an expense in the settlement thereof and shall not be prorated or apportioned among or charged against the respective devisees, legatees, beneficiaries, transferees or other recipients, nor charged against my property passing or which may have passed to any of them, and my Executor of Alternate Executor shall not be entitled to reimbursement for any portion of any such tax from any such person or recipient,” Moultis’ will states.
McCurry estimates that Moultis’ estate is worth more than $1.1 million, between the cost of the house, which sold for $540,000, and the amount of money she set aside for retirement, which is around $600,000. Her retirement money is split unevenly between the siblings, with their youngest brother—who spent a lot of time in the United States during Moultis’ last few months of life—allocated almost three-fourths of it, and her two surviving sisters splitting the rest, according to McCurry. That is something that McCurry plans to contest in the future.
In addition to her home and savings, Moultis had a lot of valuable jewelry and collected rare gold and silver coins. McCurry believes that those additional physical assets may be worth upwards of $600,000.
The cost of maintaining Moultis’ property will also be taken out of her estate, and McCurry and Asplin say they have no control over how that is managed. They can’t access Moultis’ house unless they have prior approval from her executors, which is standard practice in the state of Connecticut.
“Each month we get a breakdown of the costs from [our attorneys], and we’ve been able to question different things on it. We haven’t had one letter from Sponheimer or Kimmel to say (how the money is being spent) or an account for the last three months,” Asplin said. “Now we’re in this situation, they’re going to just give us a bill and say that’s how much it is. We have a right to know what they have done with my sister’s money and my sister’s estate, which it really isn’t Janet’s anymore, it’s ours.”
Asplin and McCurry believe that Sponheimer and Kimmel are spending money irresponsibly. For example, Moultis had “beloved” cat, Mr. G. The executors were tasked with taking care of this cat, and, when he found out that the cat had fleas, Kimmel decided to fumigate the entire house, which cost an estimated $3,000, according to McCurry.
“Now we’ve had animals all our lives, and they do occasionally get ticks and fleas. There’s an instant cure on the market and has been for donkey’s years [a long time]. For ($6 to $7), you treat the animal, and it’s clean within days,” McCurry said. “Would he have spent that sort of money had it been his own money? No, I doubt it. I don’t think the American public would wear that for a second. And it’s that transparency, that the Connecticut Probate Rules and Procedures (CPRP) says there, in black and white, just hasn’t been applied to us.”
The siblings believe that they are being treated differently because they live in the United Kingdom. They are not American citizens, but Janet was.
“This whole legal system, is it there for show or does it have real meaning?” McCurry said. “Not just for us, over here, but every American citizen is entitled to protection from any abuse, whether it comes from within the legal system or without it. It should have protected us. We should never have run a bill of the amount we have had if CPRP had any real meaning in life.”
The judge that is presiding over Moultis’ will is expected to have a judgment by the end of summer. If the case is not resolved by then, there is a trial date set for October.
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