Law School Case Brief
Ruotolo v. Tietjen - 93 Conn. App. 432, 890 A.2d 166 (2006)
Words of survivorship, such as "if she survives me," alone do not constitute a "provision" in the will for the contingency of the death of a beneficiary, as the Connecticut antilapse statute requires, and thus are insufficient to negate operation of Conn. Gen. Stat. § 45a-441, the testamentary antilapse statute.
In 1990, the decedent, John N. Swanson, executed a will in which the residuary clause bequeathed, inter alia, one-half of the residue property to Hazel Brennan, "if she survives me." Brennan died in on Jan. 2, 2001; the decedent died on Jan. 19, 2001, just 17 days later. Brennan was the decedent's stepdaughter, a relation encompassed by Conn. Gen. Stat. § 45a-441, the antilapse statute. The will was later admitted to probate, and the probate court decided that § 45a-441 was not operative an thus the bequest to Brennan lapsed and passed to the intestate estate. Plaintiffs Fred Ruotolo and Charlene Ruotolo, beneficiaries under the will, filed a motion for appeal to the superior court, which was granted. Kathleen Smaldone, who was Brennan's child and a residuary legatee in the will, filed a cross appeal. Following a de novo hearing, the superior court issued a memorandum of decision affirming the probate court's judgment. Smaldone appealed.
Was Connecticut's testamentary antilapse statute, Conn. Gen. Stat. § 45a-441, inoperative as to the bequest to Brennan?
The appellate court reversed the superior court's judgment. The court held that the antilapse statute was enacted to prevent operation of the rule of lapse and unintended disinheritance. Therefore, words of survivorship such as "if she survives me" alone did not constitute a "provision" in the will for the contingency of the death of a beneficiary, as the statute required, and thus were insufficient to negate operation of Conn. Gen. Stat. § 45a-441. Should a testator desire to avoid application of the antilapse statute, the court ruled, the testator had to either unequivocally express that intent or simply provide for an alternate bequest. Because the decedent in the present case did neither, the appellate court held that the protections of the antilapse statute applied. Accordingly, the bequest to Brennan did not lapse, but rather descended to her issue, Smaldone.
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