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Chartier v. Valliere
JEREMY A. CHARTIER ET AL. v. JOHN
CHARLES VALLIERE ET AL.
(AC 47615)
Elgo, Moll and Seeley, Js.
Syllabus
The defendants appealed from the trial court’s judgment admitting to probate
the purported will of the decedent, which named the plaintiffs as executors
of the decedent’s estate. The defendants claimed, inter alia, that the court
improperly denied their motion to dismiss the action on timeliness grounds
because the action, which had been brought by the plaintiffs as an appeal
from a decree of the Probate Court pursuant to statute (§ 45a-186 (b)) was
not filed within thirty days. Held:
The trial court improperly denied the defendants’ motion to dismiss, as the
plaintiffs failed to file their appeal of the Probate Court’s decree within the
thirty day appeal period set forth in § 45a-186 (b), and the plaintiffs’ claim
that the appeal period ran from the date the Probate Court issued a second
decree was unavailing, as that decree, which merely added a statutory
reference and elaborated on the factual findings made in the first decree,
was issued pursuant to the Probate Court’s inherent power to correct its
records and was not a modification of the first decree, and, thus, the trial
court lacked subject matter jurisdiction over the appeal.
Argued March 12—officially released July 29, 2025
Procedural History
Appeal from a decree of the Probate Court for the
district of Plainfield-Killingly appointing the named
defendant as an independent administrator of the Estate
of Susan Chartier and declaring a certain will to be
invalid, brought to the Superior Court in the judicial
district of Windham, where the court, Altermatt, J.,
denied the motion to dismiss filed by the defendant
Allen Chartier et al.; thereafter, the case was tried to
the court, Altermatt, J.; judgment for the plaintiffs, from
which the defendant Allen Chartier et al. appealed to
this court. Vacated; judgment directed.
Ernest J. Cotnoir, for the appellants (defendant Allen
Chartier et al.).
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Chartier v. Valliere
Jayme E. Stamper, with whom, was Kayley Hoffman, for the appellees (plaintiffs).
Opinion
MOLL, J. The defendants Allen Chartier and Carolyn
Chartier1 appeal from the judgment of the Superior
Court admitting to probate the purported will of the
decedent, Susan Chartier, which names the plaintiffs,
Jeremy A. Chartier and Dianne Laferriere,2 as executors
of the decedent’s estate. On appeal, the defendants
claim that the court (1) improperly denied their motion
to dismiss the present action on timeliness grounds,
and, (2) in the alternative, incorrectly found that the
plaintiffs had satisfied their burden of showing that the
purported will was properly executed. We agree with
the defendants’ first claim and, accordingly, vacate the
judgment of the Superior Court.
The following facts, which are undisputed, and procedural history are relevant to our resolution of this
appeal. The decedent, who died on June 1, 2023, was
survived by three siblings, including the two defendants.
On June 13, 2023, the plaintiffs petitioned to the Probate
Court to admit to probate as the decedent’s will an
instrument dated April 27, 2023 (purported will), and
to grant either letters testamentary or letters of administration to the proposed fiduciaries, the two plaintiffs.
In the petition, the plaintiffs expressly requested a hearing for the specific purpose of considering the ‘‘admission of the will . . . and [the] appointment of [fiduciaries].’’ The purported will left the entirety of the decedent’s
1
In the present action, the plaintiffs originally named as defendants John
Charles Valliere, Thomas Chartier, Allen Chartier, and Carolyn Chartier.
Thomas, Allen, and Carolyn are the siblings of the decedent, Susan Chartier.
Only Allen and Carolyn, however, are parties to this appeal. In the interest
of simplicity, we refer to Allen and Carolyn collectively as the defendants.
2
Jeremy A. Chartier is the son of Thomas Chartier and the nephew of
the decedent. Dianne Laferriere is Jeremy’s partner. We refer to Jeremy and
Dianne collectively as the plaintiffs.
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Chartier v. Valliere
estate to the plaintiffs and named them as executors
of the estate. On July 12, 2023, the defendants moved
for ‘‘a temporary independent administrator [to] be
appointed, such as an independent attorney, who can
safeguard the assets and preserve the status quo of the
[decedent’s] estate assets to administer justice.’’ On that
same day, the defendants also moved to contest the
purported will on the basis of ‘‘undue influence; fraud;
improper execution; lack of competence, unsound mind
and/or duress.’’
Following a hearing on July 26, 2023, by way of a
decree dated July 26, 2023 (first decree), the Probate
Court, Rowe, J., appointed John Charles Valliere as the
independent administrator of the decedent’s estate. The
first decree states in relevant part: ‘‘The [plaintiffs] submitted [the purported] will to the court. The [purported]
will, as submitted, includes signatures averring to be
that of the decedent and [two] witnesses. The [purported] will was not notarized and the witnesses did
not appear in court. Of note, this file was previously
calendared, and a continuance was requested by the
[plaintiffs] to allow for time to retain counsel and secure
the witnesses’ attendance at the hearing. The witnesses
did not appear today, and the [plaintiffs] have not yet
secured counsel. As there exists the potential for waste
to be committed and with the mandate to ensure the
protection of the estate, the hearing was held today.
. . . The petition is approved, administration of the
estate is granted to [Valliere], and letters of administration are hereby issued to [Valliere].’’ The first decree
also ordered Valliere, in his capacity as administrator,
(1) to file a true and complete inventory of all property
of the decedent’s estate, (2) to file the Connecticut
estate tax return, (3) to settle the decedent’s estate
within twelve months, and (4) to record a ‘‘Notice for
Land Records/Appointment of Fiduciary, PC-251,’’ on
the land records of each town where the decedent
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Chartier v. Valliere
owned or had an interest in real property. Notice of
the first decree was sent to the parties on July 27, 2023.
On August 24, 2023, the plaintiffs filed a request for
a hearing to address the validity of the purported will.
Thereafter, the defendants objected, arguing that the
Probate Court had already acted on this request when
it held a hearing on the plaintiffs’ petition to admit the
purported will, after which the Probate Court appointed
Valliere as an independent administrator of the estate.
The plaintiffs did not appeal from the first decree pursuant to General Statutes § 45a-186 (b).3
On September 13, 2023, the court issued a second
decree (second decree). The second decree was identical to the first decree, except for the addition of a
paragraph that reads: ‘‘The operative language of [General Statutes §] 45a-2514 states that ‘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 to the testator’s
presence . . . .’ The [purported] will as submitted is
type-written although not on any letterhead. There were
3
General Statutes § 45a-186 (b) provides: ‘‘Any person aggrieved by an
order, denial or decree of a Probate Court may appeal therefrom to the
Superior Court. An appeal from a matter heard under any provision of
section 45a-593, 45a-594, 45a-595 or 45a-597, sections 45a-644 to 45a-677,
inclusive, sections 45a-690 to 45a-703, inclusive, or section 45a-705a, shall
be filed not later than forty-five days after the date on which the Probate
Court sent the order, denial or decree. Except as provided in sections 45a-
187 and 45a-188, an appeal from an order, denial or decree in any other
matter shall be filed on or before the thirtieth day after the date on which
the Probate Court sent the order, denial or decree. The appeal period shall
be calculated from the date on which the court sent the order, denial or
decree by mail or the date on which the court transmitted the order, denial
or decree by electronic service, whichever is later.’’
4
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 will executed according to the laws of the state or country
where it was executed may be admitted to probate in this state and shall
be effectual to pass any property of the testator situated in this state.’’
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Chartier v. Valliere
blank spaces left incomplete with regards to support
for the decedent’s pets. While according to [§] 45a-
251 there is no absolute requirement that notarization
occur, the somewhat generic nature of the structure of
the [purported] will coupled with the lack of witness
attendance at today’s hearing [(i.e., on July 26, 2023)],
even with the additional time allowance for their attendance, [persuades the court that] questions as to the
validity of the witnesses’ signatures exist rendering the
[purported] will invalid.’’ (Emphasis omitted; footnote
added.) Like the first decree, the second decree is dated
July 26, 2023. Notice of the second decree was sent to
the parties on September 13, 2023.
On September 27, 2023, the plaintiffs commenced an
appeal in the Superior Court. The plaintiffs alleged that
they were aggrieved by the second decree because the
purported will was the last will and testament of the
decedent, it was properly executed pursuant to the
requirements set forth in § 45a-251, and the decedent
was of sound mind when she executed the purported
will.
On December 7, 2023, the defendants filed a motion
to dismiss the plaintiffs’ appeal on the ground that the
Superior Court lacked subject matter jurisdiction
because the appeal was not timely filed. Specifically,
the defendants argued that, despite the issuance of the
second decree in September, 2023, ‘‘[t]he actions which
the plaintiffs seek to reverse are the Probate Court’s
failure to admit the purported will and the appointment
of an independent administrator. These are all actions
taken by the Probate Court on July 26, 2023, after a
duly noticed hearing. Notice of the [first] decree and a
copy thereof was sent by the Probate Court to all parties
on July 27, 2023, so that an appeal, to be timely, would
have needed to be filed no later than August 28, 2023.’’
The plaintiffs opposed the defendants’ motion to dismiss, arguing that their appeal was timely filed because
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Chartier v. Valliere
the first decree did not address the validity of the purported will. The second decree, the plaintiffs argued,
‘‘differ[ed] significantly from the [first decree] in that
it included the Probate Court’s determination that the
purported will was invalid and included a citation to
§ 45a-251.’’ Relying on General Statutes § 45a-128,5 which,
upon the modification of a decree, grants ‘‘the same right
of and time for appeal as in the case of any other order
or decree,’’ the plaintiffs contended that pursuant to
§ 45a-186 (b); see footnote 3 of this opinion; they had
thirty days from the date on which notice of the second
decree was sent to the parties to appeal to the Superior Court.
On February 6, 2024, the court, Altermatt, J., denied
the defendants’ motion to dismiss. The court stated that
the determination of whether the appeal was timely
filed turns on when the Probate Court issued its decree
regarding the issue being appealed, namely, the validity
of the purported will. The court determined that,
‘‘[w]hile the Probate Court in its first decree approved
the granting of letters of administration and directed
the appointed [administrator] to settle the estate, it did
not address the validity/invalidity of the [purported]
will, either in its orders or its findings. In the second
5
General Statutes § 45a-128 provides in relevant part: ‘‘(b) . . . [A]ny
order or decree other than a decree authorizing the sale of real estate made
by a court of probate may, in the discretion of the court, be reconsidered
and modified or revoked by the court, on the court’s own motion or on the
written application of any interested person. Such application shall be made
or filed within one hundred twenty days after the date of such order or
decree and before any appeal is allowed or after withdrawal of all appeals.
The court may reconsider and modify or revoke any such order or decree
for any of the following reasons: (1) For any reason, if all parties in interest
consent to reconsideration, modification or revocation, or (2) for failure to
provide legal notice to a party entitled to notice under law, or (3) to correct
a scrivener’s or clerical error, or (4) upon discovery or identification of
parties in interest unknown to the court at the time of the order or decree.
‘‘(c) Upon any modification or revocation there shall be the same right
of and time for appeal as in the case of any other order or decree.’’
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Chartier v. Valliere
decree, however, the Probate Court addressed the [purported] will in its findings and specifically stated that
the [purported] will was invalid.’’ Thus, in the court’s
view, ‘‘the running of the statutory appeal period began
after issuance of the second decree, in which the [purported] will was declared invalid. As such, the [plaintiffs’] appeal was timely filed . . . .’’
On March 1, 15 and 22, 2024, the Superior Court,
sitting as the Probate Court; see Connery v. Gieske,
323 Conn. 377, 390,
147 A.3d 94 (2016); conducted a
trial de novo on the plaintiffs’ application to submit
the purported will. The court admitted into evidence
several exhibits in full and heard testimony from several
witnesses, including the two individuals, Gary Caputo
and Albert Caputo, who signed the purported will as
witnesses to its execution. On April 22, 2024, the court
issued an order finding by clear and convincing evidence that the purported will was valid. The court stated
in relevant part: ‘‘In reaching its determination, the
court relied heavily on the testimony of the witnesses
who were present on the date the [purported] will was
executed, as well as those who interacted with the
[decedent] during the period leading up to the execution. The court found the testimony of Gary Caputo to
be particularly persuasive and credible regarding [the
decedent’s] mental status, her awareness of her family
situation and her assets, and her desires as to how and
to whom her assets should be devised. . . .
‘‘The evidence demonstrated that the [purported] will
was executed with the requisite statutory formalities,
and that [the decedent] had testamentary capacity when
she prepared and executed [the purported] will. Conversely, the defendants were unable to demonstrate by
a fair preponderance of the evidence that the [decedent]
was subjected to undue influence leading up to or during the execution of [the purported] will, whereas the
plaintiffs, by clear and convincing evidence, disproved
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Chartier v. Valliere
the defendants’ claim of undue influence.’’ This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
We begin by setting forth the applicable standard of
review and relevant legal principles. ‘‘The standard of
review for a motion to dismiss is well settled. A motion
to dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . Our review, therefore, is plenary.’’ (Citation omitted; internal quotation
marks omitted.) Porto v. Sullivan, 119 Conn. App. 360,
364,
987 A.2d 1092 (2010).
‘‘Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited
the time within which such appeals [from probate] must
be taken. . . . It is a familiar principle that a court
which exercises a limited and statutory jurisdiction is
without jurisdiction to act unless it does so under the
precise circumstances and in the manner particularly
prescribed by the enabling legislation. . . . Our courts
of probate have a limited jurisdiction and can exercise
only such powers as are conferred on them by statute.
. . . They have jurisdiction only when the facts exist
on which the legislature has conditioned the exercise
of their power. . . . The Superior Court, in turn, in
passing on an appeal, acts as a court of probate with
the same powers and subject to the same limitations.
. . . The right to appeal from a decree of the Probate
Court is purely statutory . . . and the requirements
fixed by statute for taking and prosecuting the appeal
must be met.’’ (Citation omitted; internal quotation marks
omitted.) Id., 365.
The applicable time frame for appeals from a judgment of the Probate Court to the Superior Court is set
forth in § 45a-186 (b), which provides in relevant part:
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Chartier v. Valliere
‘‘Any person aggrieved by an order, denial or decree of
a Probate Court may appeal therefrom to the Superior
Court. . . . [A]n appeal from an order, denial or decree
. . . shall be filed on or before the thirtieth day after
the date on which the Probate Court sent the order,
denial or decree. . . .’’ ‘‘Failure to comply with the
relevant time limit set forth in [§ 45a-186 (b)] deprives
the Superior Court of subject matter jurisdiction and
renders such an untimely appeal subject to dismissal.’’
(Internal quotation marks omitted.) Rider v. Rider, 210
Conn. App. 278, 286,
270 A.3d 206 (2022).
With these legal principles in mind, we turn to the
merits of the defendants’ dispositive claim on appeal.
The defendants argue that the Superior Court improperly denied their motion to dismiss because the plaintiffs’ appeal from the Probate Court decree was not
timely filed pursuant to § 45a-186 (b). Specifically, the
defendants contend that the appeal period began to run
on July 27, 2023, when the Probate Court sent notice
and a copy of the first decree to the parties. Moreover,
the defendants argue that the Superior Court’s conclusion to the contrary was predicated on its incorrect
determination that the first decree failed to rule on the
validity of the purported will. Therefore, the defendants
contend that, because the plaintiffs’ appeal was filed
outside the time limit set forth in § 45a-186 (b), the
Superior Court lacked subject matter jurisdiction over
the appeal.6 In response, the plaintiffs argue that,
because the Probate Court did not specifically state
that the purported will was invalid, Valliere was appointed
as a temporary independent administrator and the issue
of the validity of the purported will was not decided.
6
Because we conclude that the Superior Court lacked subject matter
jurisdiction over the appeal from the Probate Court, we need not reach the
merits of the defendants’ second claim, namely, that the Superior Court
improperly found that the plaintiffs had satisfied their burden of showing
that the purported will was properly executed pursuant to the requirements
set forth in § 45a-251.
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Chartier v. Valliere
Therefore, the plaintiffs claim, because the first decree
did not rule on the validity of the purported will, the
second decree constituted a modification of the first
decree pursuant to § 45a-128 (b) and the appeal period
began to run when notice of the second decree was
sent to the parties on September 13, 2023.7 They claim,
therefore, that the appeal was timely filed. We agree
with the defendants.
In light of the foregoing principles and the parties’
competing assertions, the dispositive question is
whether the first decree resolved the question of the
validity of the purported will. The resolution of that
question requires us to construe the first decree. ‘‘Like
the consideration of a court’s subject matter jurisdiction, the construction of a judgment is a question of
law for the court. . . . As a general rule, judgments
are to be construed in the same fashion as other written
instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent
construction as a whole. . . . To determine the meaning of a judgment, we must ascertain the intent of the
court from the language used and, if necessary, the
surrounding circumstances.’’ (Internal quotation marks
7
Underlying the respective arguments of the plaintiffs and the defendants
is an assumption that § 45a-128 (b) applies only to decrees that are not final.
The defendants contend that the first decree was a final judgment pursuant
to General Statutes § 45a-24, which provides in relevant part: ‘‘All orders,
judgments and decrees of courts of probate, rendered after notice and from
which no appeal is taken, shall be conclusive and shall be entitled to full
faith, credit and validity and shall not be subject to collateral attack, except
for fraud.’’ Therefore, the defendants argue, the Probate Court has no power
to reconsider, modify, or revoke the first decree, which was rendered after
notice and a hearing. On the other hand, the plaintiffs argue that the first
decree was not a final decree as to the validity of the purported will, and,
therefore, the court still had the authority to make a modification pursuant
to § 45a-128 (b). Because we conclude subsequently in this opinion that
§ 45a-128 does not apply under the facts of the present case, we need not
resolve whether the parties’ assumption is correct.
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Chartier v. Valliere
omitted.) Sacramone v. Harlow, Adams & Friedman,
P.C., 218 Conn. App. 288, 298,
291 A.3d 1042 (2023).
We begin with the recognition that the first decree
is not a model of clarity. The plaintiffs’ petition sought
two orders from the court: a declaration that the purported will was valid and, pursuant to the purported
will, an appointment of the two plaintiffs as executors
of the decedent’s estate. Although the first decree states
generally that ‘‘[t]he petition is approved,’’ it granted
neither of the plaintiffs’ two requests. Moreover,
although the first decree takes clear action regarding
the appointment of an administrator of the estate, it
does not expressly state that the purported will is valid
or invalid.
Notwithstanding the lack of such express language
of the first decree, the findings and orders therein
require the conclusion that the Probate Court implicitly
declared the purported will invalid. The first decree
incorporates factual findings regarding the purported
will that necessitate that conclusion. Specifically, the
first decree observes that, although the purported will
contains signatures ‘‘averring to be that of the decedent
and [two] witnesses’’; (emphasis added); the purported
will was not notarized and the witnesses did not appear
before the court at the hearing on the petition. Although
the language of § 45a-251 is not explicitly included in
the first decree, these findings indicate that the Probate
Court concluded that the plaintiffs had not provided
sufficient proof that the purported will was ‘‘subscribed
by the testator and attested by two witnesses, each of
them subscribing in the testator’s presence,’’ as required
by § 45a-251. Moreover, the court’s findings must be
understood in conjunction with the principle that ‘‘a
will’s proponent retains the burden of proving, by a
preponderance of the evidence, that the will was executed in the manner required by statute. . . . The proponent must prove anew that the will’s execution was
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Chartier v. Valliere
in compliance with the statute in effect at the time it
was executed. . . . To be valid, [a] will must comply
strictly with the requirements of [the] statute. . . .
Because the offer for probate of a putative will is in
essence a proceeding in rem the object of which is a
decree establishing a will’s validity against all the world
. . . the proponent must at least make out a prima facie
case that all statutory criteria have been satisfied even
when compliance with those criteria has not been contested.’’ (Citations omitted; footnote omitted.) Gardner
v. Balboni, 218 Conn. 220, 225–26,
588 A.2d 634 (1991).
The court’s findings, therefore, indicate that it concluded that the plaintiffs had failed to meet their burden
to prove that the purported will complied with the statutory requirements.
Additionally, the first decree appointed Valliere to be
the administrator of the decedent’s estate and made
several orders consistent with the granting of the defendants’ contest of the purported will, including allowing
twelve months for Valliere to settle the estate. The
appointment of Valliere as the administrator and the
issuance of the orders consistent with that appointment
directly contradicted the purported will’s express provisions, including its nomination of the plaintiffs as executors of the decedent’s estate, thus indicating that the
Probate Court implicitly declared the purported will
invalid in the first decree. It is a fundamental principle
of the law of wills that the intent of the testator, as
expressed through the provisions of the will, is what
governs. See, e.g., Swole v. Burnham, 111 Conn. 120,
121–22, 149 A. 229 (1930) (‘‘The cardinal rule of testamentary construction is the ascertainment and effectuation of the intent of the testator, if that be possible.
If this intent, when discovered, has been adequately
expressed and is not contrary to some positive rule of
law, it will be carried out.’’). In the present case, therefore, if the Probate Court had admitted the purported
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Chartier v. Valliere
will, its provision appointing the plaintiffs as executors
would control. See id. In the alternative, as we will
explain herein, if the court intended to delay its consideration of whether to admit the purported will, it would
have appointed a temporary administrator. See General
Statutes § 45a-316.8 When the Probate Court deems an
individual to have died intestate, however, it routinely
appoints an administrator to settle the affairs of the
decedent’s estate. See General Statutes § 45a-303.9
8
General Statutes § 45a-316 provides: ‘‘Whenever, upon the application
of a creditor or other person interested in the estate of a deceased person,
it is found by the court of probate having jurisdiction of the estate that the
granting of administration on the estate or the probating of the will of the
deceased will be delayed, or that it is necessary for the protection of the
estate of the deceased, the court may, with or without notice, appoint a
temporary administrator to hold and preserve the estate until the appointment of an administrator or the probating of the will. The court shall require
from such administrator a probate bond. If the court deems it more expedient, it may order any state marshal or constable to take possession of the
estate until the appointment of an administrator or executor.’’
9
General Statutes § 45a-303 provides in relevant part: ‘‘(a) Jurisdiction of
intestate estates. Probate costs. (1) When any person domiciled in this state
dies intestate, the court of probate in the district in which the deceased
was domiciled at his death shall have jurisdiction to grant letters of administration. . . .
‘‘(b) Application, notice and hearing re letters of administration. Upon
application for letters of administration to the court of probate having
jurisdiction of the estate of an intestate decedent, the court shall, before
granting letters of administration, after notice required by this section, hold
a hearing. Notice of such hearing, either public notice, personal notice or
both as the court deems best, shall be given to all persons interested in
such estate, including the Commissioner of Revenue Services in the case
of a nondomiciliary decedent, unless all persons so interested sign and file
in court a written waiver of such notice, or unless the court, for cause
shown, dispenses with such notice. The finding by the court that such estate
is not more than sufficient to pay the expenses of administration, the funeral
and last sickness shall be sufficient cause to dispense with such notice.
‘‘(c) To whom letters of administration granted. (1) Upon hearing as
required by this section, the court of probate having jurisdiction shall grant
administration of the intestate decedent’s estate to any one or more persons
or their designees appointed in the following order, provided such person
or persons are entitled to share in the estate of the decedent: (A) The
surviving spouse, (B) any child of the decedent or any guardian of such
child as the court shall determine, (C) any grandchild of the decedent or any
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The first decree’s order allowing Valliere twelve
months to settle the estate is particularly significant to
our conclusion that the Probate Court had found the
purported will invalid. We recognize that, prior to the
hearing held by the Probate Court regarding the validity
of the purported will, the defendants filed a motion to
appoint a temporary independent administrator of the
decedent’s estate pursuant to, inter alia, § 45a-316. See
footnote 8 of this opinion. Nothing in the first decree,
however, suggests that the appointment of Valliere was
to be on a temporary basis, and the provision ordering
him to ‘‘settle’’ the estate within twelve months clearly
indicates that the appointment was permanent. See 31
Am. Jur. 2d 195, Executors and Administrators § 223
(2022) (‘‘[i]n general, the authority of an executor or
administrator continues until the estate is fully settled
unless he or she is removed, dies, or resigns’’). Moreover, the first decree did not reference § 45a-316, which
allows the court to appoint a temporary administrator
to maintain the status quo of the estate if it believes
that the probating of the will of the deceased will be
delayed. See footnote 8 of this opinion. If the Probate
Court intended to afford the plaintiffs an opportunity
to continue litigating the validity of the purported will,
it should have explicitly stated that intention by noting
that the issue would remain open or that the plaintiffs
would have such opportunity at a later date. See
Sacramone v. Harlow, Adams & Friedman, P.C., supra,
218 Conn. App. 299. Thus, it is clear that the Probate
Court intended in the first decree to appoint Valliere
as a full or permanent administrator.
guardian of such grandchild as the court shall determine, (D) the decedent’s
parents, (E) any brother or sister of the decedent, (F) the next of kin entitled
to share in the estate, or, on their refusal, incapacity or failure to give bond
or upon the objection of any heir or creditor to such appointment found
reasonable by the court, to any other person whom the court deems
proper. . . .’’
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Chartier v. Valliere
In summary, the first decree’s factual findings calling
into question whether the purported will’s execution
complied with the applicable statutory requirements,
understood together with the appointment of Valliere
as an independent administrator—in direct contradiction to the provisions of the purported will—indicate
that the Probate Court in the first decree necessarily
found the purported will invalid. The court’s order
directing Valliere to settle the estate within twelve months,
which cannot be reconciled with the proposition that
the first decree intended to leave open the question of
the purported will’s validity, further underscores our
conclusion that the first decree must be understood to
have denied the plaintiffs’ application to submit the
purported will.
Subsequent proceedings also inform our interpretation of the first decree. Specifically, the Probate Court’s
response to the plaintiffs’ request for an additional hearing, via the issuance of the second decree, indicates that
the court intended merely to amplify the first decree’s
implicit ruling that the purported will was invalid. The
Probate Court issued the second decree without addressing the plaintiffs’ request for an additional hearing. If
the first decree had not determined the validity of the
purported will, resolving that issue by way of a second
decree would have been improper without prior notice
or an additional hearing pursuant to General Statutes
§ 45a-286, which provides in relevant part that ‘‘[a]ny
court of probate shall, before proving or disapproving
any last will and testament, or codicil thereto, hold a
hearing thereon, of which notice, either public or personal or both, as the court may deem best, has been
given to all parties known to be interested in the estate,
unless all parties so interested sign and file in court a
written waiver of such notice, or unless the court, for
cause shown, dispenses with such notice. . . .’’ Prior
to the issuance of the second decree, the Probate Court
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Chartier v. Valliere
did not (1) hold a second hearing on the validity of the
purported will, (2) provide notice of such a hearing, (3)
obtain a written waiver from the parties of such notice,
or (4) show cause to dispense with such notice. Instead,
the second decree merely added a reference to § 45a-
251—which, as was iterated, requires a will to be in
writing, subscribed by the testator, and attested by two
witnesses—and elaborated on its factual findings made
in the first decree regarding the insufficiency of the
evidence surrounding the signatures of the testator and
witnesses. Thus, the circumstances surrounding the
issuance of the second decree; see Sacramone v. Harlow, Adams & Friedman, P.C., supra, 218 Conn. App.
298; lend support to our interpretation that the first
decree was a final decree regarding the validity of the
purported will. The second decree, therefore, was issued
pursuant to the Probate Court’s ‘‘inherent power to
correct its records so as to make the history of its
proceedings speak the truth.’’ Lillico v. Perakos, 152
Conn. 526, 532,
209 A.2d 92 (1965).
We find unpersuasive the plaintiffs’ argument that
the second decree constituted a modification pursuant
to § 45a-128 (b) and that, therefore, they had thirty days
from the date on which the Probate Court provided
notice of the second decree to appeal. ‘‘[Section] 45a-
128 permits a Probate Court, in its discretion, to reconsider, modify or revoke an order or decree. The legislature has, however, limited the Probate Court’s ability
to do so to only four circumstances.’’ Sacramone v.
Harlow, Adams & Friedman, P.C., supra, 218 Conn.
App. 297. Specifically, § 45a-128 (b) provides that the
Probate Court ‘‘may reconsider and modify or revoke
any such order or decree for any of the following reasons: (1) For any reason, if all parties in interest consent
to reconsideration, modification or revocation, or (2)
for failure to provide legal notice to a party entitled to
notice under law, or (3) to correct a scrivener’s or
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Chartier v. Valliere
clerical error, or (4) upon discovery or identification
of parties in interest unknown to the court at the time
of the order or decree. (c) Upon any modification or
revocation there shall be the same right of and time for
appeal as in the case of any other order or decree.’’
The plaintiffs rely solely on the third circumstance
of § 45a-128 (b), asserting that the second decree was a
modification for the purpose of correcting a scrivener’s
error. If we accept the plaintiffs’ premise, however, that
the first decree left open the question of the validity
of the purported will, the additional paragraph of the
second decree cannot be understood to correct a mere
scrivener’s error in the first decree, and, therefore, the
second decree does not qualify as a modification under
§ 45a-128 (b) on that basis. See, e.g., State v. Rosario,
238 Conn. 380, 386–88,
680 A.2d 237 (1996) (misstated
date in search warrant was considered scrivener’s
error); First Federal Savings & Loan Assn. of Rochester
v. Pellechia, 31 Conn. App. 260, 266,
624 A.2d 395 (misstatement of single digit of docket number was considered scrivener’s error), cert. denied,
227 Conn. 923,
632
A.2d 701 (1993).
In sum, we conclude that, in the first decree issued
by the Probate Court, it ruled that the purported will
was invalid and, pursuant to § 45a-186 (b), the plaintiffs
had thirty days from July 27, 2023,10 to appeal to the
Superior Court. Thus, the plaintiffs’ appeal to the Superior Court on September 27, 2023, was not timely filed,
and the Superior Court lacked subject matter jurisdiction over the appeal.
The judgment is vacated and the case is remanded
with direction to render judgment dismissing the action.
In this opinion the other judges concurred.
10
Section 45a-186 (b) provides in relevant part that ‘‘[t]he appeal period
shall be calculated from the date on which the court sent the order, denial
or decree by mail or the date on which the court transmitted the order,
denial or decree by electronic service, whichever is later.’’ It is undisputed
that notice of the first decree was sent to all parties on July 27, 2023.
