Bartunek v. Bartunek

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Bartunek v. Bartunek

MICHAEL BARTUNEK ET AL. v.
RUDOLPH BARTUNEK ET AL.
(AC 47255)
Elgo, Suarez and Westbrook, Js.

Syllabus

The defendants appealed from the Superior Court’s judgment for the plain-
tiffs in their action appealing a decree of the Probate Court that admitted
a 2016 will of the decedent to probate. The defendants claimed, inter alia,
that the Superior Court improperly determined that the decedent lacked
testamentary capacity with respect to the 2016 will. Held:

The Superior Court’s finding that the decedent lacked testamentary capac-
ity when he executed the 2016 will was not clearly erroneous, as there was
sufficient evidence in the record to support the Superior Court’s factual
findings and this court was not left with the definite and firm conviction
that a mistake had been made.

The Superior Court’s factual findings in support of its conclusion that the
decedent had been unduly influenced in the making of the 2016 will were not
clearly erroneous, as it properly determined that each element of undue influ-
ence had been met after considering the testimony of the witnesses and the
distinct differences between the 2016 will and the decedent’s prior will and
the court’s conclusion was supported by significant evidence in the record.

Argued September 15, 2025—officially released April 7, 2026

Procedural History

Appeal from the decree of the Probate Court for the
district of Region 14 admitting a certain will of Thomas
Bartunek to probate, brought to the Superior Court in
the judicial district of Hartford, where Steven Bartunek,
the administrator of the estate of the plaintiff David Bar-
tunek, was substituted as a party plaintiff; thereafter,
the case was tried to the court, S. Connors, J.; judgment
for the plaintiffs, from which the defendants appealed
to this court. Affirmed.
Corinne A. Burlingham, with whom were Brendon
P. Levesque and, on the brief, Eric P. Anderson, for the
appellants (defendants).
C. Michael Budlong, with whom was Ian Majka-
Sunde, law student intern, for the appellees (named
plaintiff et al.).
Bartunek v. Bartunek

Opinion

WESTBROOK, J. The defendants, Rudolph Bartunek
and Michelle Bartunek, appeal from the judgment of the
Superior Court setting aside a decree of the Probate Court
admitting and upholding the last will and testament of
the decedent, Thomas Bartunek, dated June 27, 2016
(2016 will).1 On appeal, the defendants claim that the
court improperly determined that (1) Thomas lacked
testamentary capacity with respect to the 2016 will and
(2) the 2016 will was the product of undue influence on
Thomas by the defendants. We reject the defendants’
claims and affirm the judgment of the court.
The following facts and procedural history, as found
by the Superior Court and supported by the record, are
relevant to this appeal. The original plaintiffs were David
Bartunek and Michael Bartunek.2 David is the son of
Thomas and his wife, Anna Bartunek. Michael is David’s
son and the grandson of Thomas and Anna. Thomas
and Anna were married for more than fifty years and,
since at least 1978, lived in a residence at 74 Jones Hill
Road in East Haddam. Their property bordered prop-
erty owned by Rudolph, Thomas’ brother, who resided
therein. Although the brothers lived adjacent to one
another for decades, they and their families had very
little interaction with one another. But for this litigation
the parties would not even know one another. Rudolph’s
daughter, Michelle, had virtually no interaction with
her uncle or his family. Although her father’s home was
no more than two to three minutes away from Thomas’
home, in her roughly twenty years of living there, she
was not aware of anyone else living with Thomas other
than Anna. Michelle saw David once or twice as a child.
1
Because the parties and other relevant individuals share the same
last name, for clarity we will refer to these individuals in subsequent
references by their first names.
2
David died during the pendency of the proceedings. Steven Bartunek,
David’s son and the administrator of his estate, was later substituted
as a plaintiff. We refer to David and Michael collectively as the origi-
nal plaintiffs and to Michael and Steven collectively as the plaintiffs
throughout this opinion.
Bartunek v. Bartunek

She occasionally saw Thomas in the yard tending to his
animals but saw Anna less often. As David began having
children, Michelle still had no interaction with her uncle’s
family. The two families did not dine together, nor did
they attend one another’s family functions except for an
occasion, approximately thirty years ago, when Thomas
and Anna attended the wedding of one of Rudolph’s
daughters. Throughout the entirety of Michelle’s adult
life, the only interaction she saw between her father and
Thomas, before Anna died, was when the two would hay
their respective fields and shear their respective sheep.
Thomas and Anna had tremendous love for each other
and for their animals, which they expressed in their 2011
reciprocal wills, which were prepared by Attorney Daniel
Ryan. Thomas’ 2011 will (2011 will) bequeathed 50 per-
cent of his estate to the Anna and Tom Bartunek Animal
Fund. The remaining 50 percent was to be divided among
David and his children. All parties involved acknowledged
how much animals meant to Thomas. When Thomas’
wife, Anna, died on Christmas Day in 2015, her obitu-
ary mentioned the love she held for the “innumerable
animals for which she cared for over the years.” It also
mentioned that, in lieu of flowers, she wished for people
to donate to the Connecticut Humane Society.
Michelle attended Anna’s funeral with her mother.
Rudolph, however, did not attend. Anna’s funeral
marked the moment when David and his children noticed
substantial changes in Thomas’ behavior. Although
he had been out of the military for several decades, he
showed up to Anna’s funeral in his military uniform,
which was strange to some of the grandchildren. At her
wake, Thomas remained in his military uniform and con-
tinually asked where Anna was while holding her ashes.
Although Thomas’ mental capacity significantly
declined after Anna died, he had been exhibiting a decline
in mental capacity since at least 2011. For example,
while attending a birthday party for Steven’s daughter,
Thomas did not recognize Steven. On another occasion,
during a dinner at a restaurant organized by two of
Bartunek v. Bartunek

Thomas’ grandsons, Thomas had difficulty remembering
who some of his grandchildren were and where they were
dining. Thomas also repeatedly asked the same questions.
Thomas continued to exhibit strange behavior that was
indicative of diminished mental capacity.3
As of March 1, 2016, Thomas’ primary care practitio-
ner, Terrence Doherty, evaluated Thomas and found that
he had mild cognitive impairment and explained that
“[h]e was not fully oriented to person, place or time.”
Doherty was concerned that Thomas’ decline in cogni-
tion and depression stemmed from the recent loss of his
wife. In April, 2016, Doherty again noted that Thomas’
mental capacity was impaired and prescribed medication
to help assuage what he thought was the cause of his
diminished mental capacity. Doherty met with Thomas
again on June 10 and July 11 of that same year and again
found his memory to be impaired. His notes reflected
his belief that Thomas may be suffering from dementia.
Not long after Anna died, David began handling
Thomas’ affairs. Thomas had multiple bank accounts,
from which David used to write checks to pay for bills
and similar expenses. There came a time, however, when
Thomas began to question David’s financial expendi-
tures and withdrawals. Thomas decided to reach out to
Rudolph for help managing his finances. The defendants
then brought Thomas to Attorney Wade Jensen, who
had previously done work for Rudolph. Michelle called
to make the initial appointment, explaining that Thomas
needed a power of attorney. Jensen’s staff who spoke with
Michelle made a notation in the office file that “[i]t sounds
like he may also need a conservator, but not quite sure.”
Jensen met with Thomas and the defendants to prepare
3
Another one of Thomas’ grandsons testified that, on one occasion,
“[Thomas] was telling me stories. . . . And he went into telling me how
these C-130s fly over his house. And he runs out with some flags in the
yard and waves at them. And they spin around and fly back closer . .
. . And then out of nowhere he just looks at me and says . . . ‘I think I’m
losing my f’ing mind. I don’t know what’s going on. I’m not going to
fix it. I’m just going to go along with it.’ And then he goes right back
into the story about the airplane flying overhead.”
Bartunek v. Bartunek

a living will and power of attorney on April 21, 2016.
Jensen met with the parties once again on May 5, 2016,
to inform David why the defendants were appointed as
Thomas’ attorneys-in-fact, but David did not show up
for the appointment.
Following that meeting, Michelle called the East Had-
dam Police Department and accused David of stealing
money from Thomas. David argued that he did not steal
any money from his father and that, instead, it was
his father who continually insisted that David take the
money, although he refused. On May 9, 2016, Officer
Russell Gingras of the East Haddam Police Department
arrived at Thomas’ residence to meet with Thomas and
Michelle regarding David’s financial misdeeds. Thomas
mentioned to Gingras that he was upset that David stole
from him and mentioned changing his will.4 Gingras also
noted that Thomas was exhibiting the beginning stages
of dementia. Approximately two weeks later, Gingras
received a call from Michelle that Thomas had discussed
it with his family and wished to press charges against
David. David was subsequently arrested and pleaded
nolo contendere to the charges.5
Upon Jensen’s advice, Thomas applied for a voluntary
conservatorship on June 1, 2016, to circumvent David’s
attempt to obtain an involuntary conservatorship. Not
long after, on June 21, 2016, the Probate Court appointed
the defendants as coconservators of Thomas’ estate and
person. During the hearing, Rudolph told the court that
Thomas wanted to create a new will and asked what the
process would be for doing so. Six days after the hear-
ing, Thomas and the defendants returned to Jensen’s
office, where Thomas executed the 2016 will, in which
he bequeathed 100 percent of his estate to Rudolph.
Jensen believed Thomas was competent to execute his
4
At trial, Gingras did not recall meeting Thomas alone or asking him
if he felt safe or if he was on medication.
5
David was charged with one count of larceny in the second degree
in violation of General Statutes § 53a-123 and one count of attempt to
commit larceny in the fourth degree in violation of General Statutes
§§ 53a-49 and 53a-125. He subsequently was convicted of larceny in the
fourth degree in violation of § 53a-125.
Bartunek v. Bartunek

will and did not observe any evidence of undue influence.
Additionally, Jensen did not inquire, and was not made
aware of, whether the prior will contained any beneficia-
ries, and the defendants did not inform Jensen about the
2011 will or about Thomas and Anna’s animal trust. As
found by the court, “Jensen had little to no independent
recollection of the events surrounding the meetings with
the parties or the drafting of the documents, including
the 2016 will.”6
Thomas ultimately died on November 13, 2018.
Neither defendant notified David that his father had
died. Thomas’ obituary did not mention his son David
or Thomas’ grandchildren. Thomas’ death certificate
showed that he suffered from dementia and Alzheimer’s
disease for three years prior to his death.
On November 27, 2018, Michael filed the 2011 will
with the Probate Court for admission. Two days later, on
November 29, 2018, the defendants filed the 2016 will
with the Probate Court. David and a charitable organiza-
tion named as a beneficiary in the 2011 will thereafter
filed an objection to the admission of the 2016 will on the
grounds that, inter alia, Thomas lacked testamentary
capacity to execute the 2016 will and the 2016 will was
executed under the undue influence of Rudolph.
Following an evidentiary hearing, the Probate Court
issued a decree that admitted the 2016 will to probate.
The Probate Court concluded that the objecting parties
had failed to sustain their burden of proving by clear
and convincing evidence any of the elements required to
establish undue influence. The Probate Court also con-
cluded that, although there was evidence that Thomas
suffered from cognitive decline, the proponents of the
2016 will nevertheless proved by a preponderance of
the evidence that Thomas had the requisite capacity to
execute his 2016 will.
6
“Jensen admitted that during his deposition he [had] testified that it
was likely that Rudolph gave him a note indicating that Thomas wanted
to leave everything to Rudolph. On cross-examination at trial, [Jensen]
testified that he believed it was Thomas who gave him the note.”
Bartunek v. Bartunek

The original plaintiffs thereafter filed an appeal with
the Superior Court from the Probate Court’s decree
admitting the 2016 will.7 The court, S. Connors, J.,
conducted a three day trial de novo during which the
court heard testimony from, inter alia, the plaintiffs; the
defendants; Jensen; Gingras; Breanna Mehmet, a witness
to the 2016 will; and two of Thomas’ other grandchildren,
Thomas Bartunek and Brittany Benedict. The court
issued a memorandum of decision in which it rendered
judgment for the plaintiffs. The court found, contrary to
the decision of the Probate Court, that Thomas lacked the
requisite testamentary capacity to execute the 2016 will
and that the 2016 will was the result of the defendants’
undue influence over Thomas. The court thus overruled
the decree of the Probate Court, and this appeal followed.
I
The defendants first claim that the court improperly
determined that Thomas lacked testamentary capacity
at the time that he executed the 2016 will. Specifically,
the court concluded that the defendants failed to estab-
lish that Thomas had testamentary capacity at the time
he executed the 2016 will because the disposition of his
2016 will was unnatural and there was no attempt to
determine his testamentary capacity at the time of the
2016 will’s execution.8 The defendants argue that the
reasons underlying the court’s conclusion were “based on
either [erroneous] factual finding[s] or a misapplication
7
In addition to the probate appeal, the operative second amended
complaint filed with the Superior Court also alleged three counts against
the defendants sounding in fraud, unjust enrichment, and tortious
interference with an expected inheritance. The court, Sicilian, J.,
granted summary judgment in favor of the defendants on these tort
counts, concluding that they were barred by the applicable three year
statute of limitations. The plaintiffs have not filed a cross appeal chal-
lenging that ruling.
8
In the context of a will contest in which undue influence is raised, a
natural disposition refers to a disposition that favors the natural objects
of a testator’s bounty—those who would inherit the testator’s estate
in the absence of a will. See Salvatore v. Hayden, 144 Conn. 437, 441,
133 A.2d 622 (1957). Anything that deviates from this norm would
typically be, on its face, an unnatural disposition.
Bartunek v. Bartunek

of the law.” Having thoroughly reviewed the underly-
ing record, we conclude that the defendants have failed
to prove that the court’s conclusion was not legally and
logically correct and supported by facts in the record.
We, therefore, reject this claim.
“An appeal from a Probate Court to the Superior Court
is not an ordinary civil action. . . . When entertaining an
appeal from an order or decree of a Probate Court, the
Superior Court takes the place of and sits as the court of
probate. . . . In ruling on a probate appeal, the Superior
Court exercises the powers, not of a constitutional court
of general or common law jurisdiction, but of a Probate
Court. . . . The function of the Superior Court in appeals
from a Probate Court is to take jurisdiction of the order
or decree appealed from and to try that issue de novo. .
. . Thereafter, upon consideration of all evidence pre-
sented on the appeal which would have been admissible
in the [P]robate [C]ourt, the [S]uperior [C]ourt should
exercise the same power of judgment which the [P]robate
[C]ourt possessed and decide the appeal as an original
proposition unfettered by, and ignoring, the result
reached in the [P]robate [C]ourt.” (Internal quotation
marks omitted.) Wolfel v. Wolfel, 218 Conn. App. 760,
766–67, 292 A.3d 1261, cert. denied, 348 Conn. 902,
301 A.3d 528 (2023).
“What constitutes testamentary capacity is a ques-
tion of law. . . . To make a valid will, the [testator] must
have had mind and memory sound enough to know and
understand the business upon which [he] was engaged,
that of the execution of the will, at the very time [he]
executed it. . . . Whether [he] measured up to this test
is a question of fact for the trier.” (Internal quotation
marks omitted.) Bassford v. Bassford, 180 Conn. App.
331, 340, 183 A.3d 680 (2018). Therefore, we review
the court’s findings of fact that support its conclusion
under the clearly erroneous standard. “A finding of fact is
clearly erroneous when there is no evidence in the record
to support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence is
Bartunek v. Bartunek

left with the definite and firm conviction that a mistake
has been committed.” (Internal quotation marks omit-
ted.) Riscica v. Riscica, 101 Conn. App. 199, 205, 921
A.2d 633 (2007). “We must defer to the trier of fact’s
assessment of the credibility of the witnesses that is
made on the basis of its firsthand observation of their
conduct, demeanor and attitude.” (Internal quotation
marks omitted.) Id.
The burden of proof in disputes over testamentary
capacity is always on the proponent of the will, i.e., the
party offering the will for admission to probate. See
Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367
(1978) (“Due execution and testamentary capacity are
statutory issues . . . and the burden of proof as to each
is upon the proponent [of the will]. This remains so even
though the contestant . . . affirmatively pleads lack of due
execution and lack of testamentary capacity” or “whether
in the appeal from probate the proponent is the appellee
or the appellant.” (Citation omitted; footnote omitted;
internal quotation marks omitted.)). “While there is a
presumption of sanity in the performance of legal acts,
the party that presents a will still bears the burden of
going forward with his proof, and only then does the
burden shift to the opponents to prove incapacity. . . .
[A]n individual may possess the mental capacity neces-
sary to make a will although incapable of transacting
business generally. . . . The minimum level of mental
capacity required to make a will is less than that necessary
to make a contract or a deed. . . . Likewise, less mental
capacity is required for the testator to make a will than
to carry on business transactions generally, or ordinary
business affairs.” (Citations omitted; internal quotation
marks omitted.) Deroy v. Estate of Baron, 136 Conn.
App. 123, 128, 43 A.3d 759 (2012). “Our law provides
that it is a testator’s capacity at the time of the will’s
execution that is relevant. The fundamental test of the
[testator’s] capacity to make a will is [his] condition of
mind and memory at the very time when [he] executed
the instrument. . . . While in determining the question as
to the mental capacity of a testator evidence is received
Bartunek v. Bartunek

of his conduct and condition prior and subsequent to
the point of time when it is executed, it is so admitted
solely for such light as it may afford as to his capacity
at that point of time and diminishes in weight as time
lengthens in each direction from that point.” (Internal
quotation marks omitted.) Holloway v. Carvalho, 206
Conn. App. 371, 385, 261 A.3d 57, cert. denied, 339
Conn. 911, 261 A.3d 746 (2021). Ultimately, the test
for testamentary capacity “in its simplest terms is that
the testator must have mind and memory sound enough
to enable him to know and understand the business upon
which he is engaged, that is, the execution of his will at
the very time he executes it.” Atchison v. Lewis, 131
Conn. 218, 219−20, 38 A.2d 673 (1944).
Here, the defendants, as the proponents of the will,
had the burden of proving that Thomas had testamentary
capacity at the time of the execution of the 2016 will.
The court found, and the record supports, that there
was significant evidence supporting the conclusion that
Thomas lacked testamentary capacity when he executed
the 2016 will because he was experiencing cognitive
decline prior to and contemporaneously with the execu-
tion of his 2016 will. The defendants’ argument to the
contrary relied on the testimony of three key witnesses
that they claim supports a conclusion that Thomas had
testamentary capacity at the time he executed the 2016
will. Additionally, the defendants argued that the dis-
position of his estate was natural. The court, however,
found that those witnesses’ testimony did not support
the defendants’ arguments and that the disposition of
property in the 2016 will was unnatural. See Trella v.
Prestoff, 128 Conn. 337, 340, 22 A.2d 638 (1941).9
In support of their claim, the defendants introduced
into evidence the deposition testimony of Doherty, who
9
In Trella, our Supreme Court upheld a finding of lack of testamentary
capacity on the basis of, inter alia, the decedent’s unnatural disposition
of her property. Trella v. Prestoff, supra, 128 Conn. 340. The defendants
in Trella hired a lawyer to prepare a will for their mother, the decedent,
with the intent of restricting the plaintiff’s inheritance. Id., 339. The
attorney directed the decedent’s hand to sign the will. Id. Three days
Bartunek v. Bartunek

had assessed Thomas’ memory on multiple occasions,
including approximately two weeks before the execution
of the 2016 will. By March 1, 2016, Thomas had mild
cognitive impairment based on his Mini-mental State
Examination (MMSE) score of 21 out of 30.10 Doherty
believed that Thomas was suffering from pseudodemen-
tia, which he described as “a treatable form of cognitive
decline.” He recommended that Thomas start medication
and scheduled a follow up visit for April 7, 2016. At the
April visit, his MMSE was one point lower than the previ-
ous visit. Thomas was tested again on June 10, 2016, and
his MMSE showed that he was at the threshold for what
is considered “normal” cognitive functioning. On that
same day, Doherty also noted that Thomas’ “[m]emory
was impaired,” that he was “[n]ot oriented to time, place,
and person” and that he was suffering from “[s]enile
dementia which is worsening.” In the weeks following
the execution of the 2016 will, Thomas was admitted to
an emergency department, where his medical records
appeared to contain “conflicting notation of advanced
cognitive deficits . . . .” Doherty also stated that there
could be day-to-day variations in Thomas’ cognition, with
days of lucidity and days of disorientation. Ultimately,
although it was Doherty’s medical opinion that Thomas
had sufficient cognition to execute a will, he also testi-
fied in the Probate Court that “the period of February to
July, 2016, was a period marked by [Thomas’] decline in
health with a gradual decline in cognition.”
The defendants also introduced into evidence Jensen’s
deposition, in which he testified that the preparation and
execution of the 2016 will took roughly “two hours.”
Jensen had met with Thomas and the defendants before
later, the decedent died of a disease that affected her mental condition.
Id., 340. The court found that it was unnatural for the decedent to cut
the plaintiff from her will entirely, even though the two were cordial
before her death and the plaintiff was her only daughter. Id.
10
“Of a total possible score of 30, a normal mean score on the [MMSE]
is around 27, while the mean score for individuals with dementia is
near 10. Psychologically depressed people, including those with pseu-
dodementia, generally score between 19 and 25.” 17 Am. Jur. 3d 219,
Proof of Facts § 9 (2025).
Bartunek v. Bartunek

the creation of the will to execute a power of attorney and
appointment of health care representative. Those docu-
ments were executed on April 21, 2016, and “enabl[ed]
[Rudolph] to work on [Thomas’] behalf.” Although Jen-
sen made no inquiries into Thomas’ mental state at the
time, he did note that Thomas was clearly not able to
drive and that “he was relatively feeble at that time.”
On the day the 2016 will was drafted, Jensen had the
defendants leave the office while he went through the
details of the will with Thomas. During this time, Jensen
did not discuss Thomas’ 2011 will because Jensen was not
aware of its existence. Furthermore, Jensen was never
made aware of Thomas’ Alzheimer’s disease treatment
or his mental decline, nor did he check Thomas’ medical
records or record Thomas during the discussion due to
fears that, in any potential litigation, attorneys would
“find some quirk or something going on . . . .” Throughout
the entire process, Jensen never made Thomas aware that
he previously had drafted a will for Rudolph, which he
seemingly had forgotten at the time of his deposition.
The defendants argue that the trial testimony of Gin-
gras also supports the contention that Thomas had the
mental capacity to execute his 2016 will. The defendants
direct us to Gingras’ testimony that “Thomas was aware
. . . of what was going on . . . .” This same witness, how-
ever, also testified that “Thomas was exhibiting the
beginning stages of dementia” and that “the family was
in the process of establishing an executive for his affairs.”
Additionally, Gingras could not confirm whether he
interviewed Thomas in the presence of the defendants.
It was only after Thomas spoke with his family that he
decided to move forward with the criminal investigation
against David.
The defendants also rely on the Probate Court’s ruling
on Thomas’ application for voluntary conservatorship to
establish his testamentary capacity. That ruling, how-
ever, did not consider any of his medical ailments. The
Probate Court only reviewed the documents granting
power of attorney to the defendants and the health care
representative designation. Neither of these documents
Bartunek v. Bartunek

make any mention of Thomas’ Alzheimer’s disease or
his pseudodementia. The Superior Court’s review in an
appeal from the Probate Court is de novo, and, thus,
we defer to the findings of the Superior Court, so long
as there is evidence in the record to support them. The
Superior Court found that the Probate Court’s approval
of Thomas’ application for a voluntary conservator had
little bearing on whether Thomas had testamentary
capacity to execute his 2016 will. The defendants claim
that the proximity of this hearing to the execution of
the will renders the court’s findings clearly erroneous.
However, as Doherty testified, Thomas’ mental state
varied from day to day.
On the basis of our review of the record, we conclude
that the court’s finding that Thomas lacked testamentary
capacity when he executed the 2016 will was not clearly
erroneous because there was evidence in the record to
support the court’s factual findings with respect to the
three witnesses, and we are not left with the definite
and firm conviction that a mistake has been made. The
court noted that “Jensen’s actions are closer to those of
the attorney in [Stanton v. Grigley, 177 Conn. 558, 418
A.2d 923 (1979)].” The court in Stanton found that the
plaintiff solicited the help of his own attorney to draft
the testator’s will, one of the testator’s sons observed
his father’s “ ‘failing health,’ ” and the testator failed
to identify his daughter whom he saw frequently. Id.,
559−61. In Stanton, these facts were enough to establish
that the plaintiff failed to meet the burden of proof for
testamentary capacity. Id., 564–65. In light of Stanton,
the court’s findings with respect to Jensen’s actions were
well supported by the facts in the record. The court found
that “Jensen previously drafted a will for a beneficiary of
the new will and had no prior relationship with Thomas
and did not take the time to meet with Thomas outside
of the presence of the defendants for more than a few
minutes.”
Although the court did not make any explicit credibil-
ity findings with respect to Doherty or Gingras, the court
impliedly assessed their credibility. These witnesses’
Bartunek v. Bartunek

testimony, even if deemed credible, was not enough to
necessitate a finding that Thomas had testamentary
capacity when he executed the 2016 will. As stated pre-
viously in this opinion, “[w]e must defer to the trier of
fact’s assessment of the credibility of the witnesses . . . .”
(Internal quotation marks omitted.) Riscica v. Riscica,
supra, 101 Conn. App. 205. Despite Doherty’s deposi-
tion testimony that Thomas had capacity to execute the
2016 will, his testimony provided enough countervail-
ing evidence to logically support the court’s conclusion
that Doherty’s testimony was not sufficient to establish
testamentary capacity. The testimony of Gingras and
the Probate Court’s order regarding Thomas’ voluntary
conservatorship do not undermine the reasonableness of
the court’s ruling. After considering the entirety of the
record before us, we are not convinced that the court’s
findings were clearly erroneous, nor are we left with the
definite and firm conviction that a mistake has been made.
The defendants also argue that the disposition of
Thomas’ property in the 2016 will was not “unnatural”
and thus did not evince a lack of testamentary capac-
ity. The court disagreed, relying on Trella v. Prestoff,
supra, 128 Conn. 337. In Trella, the court found that
the disposition of a testatrix’s will was unnatural. Id.,
340. While the testatrix was in a decaying physical and
mental state, the defendants hired a lawyer to execute
a new will, which excluded the plaintiff. Id., 339. Three
days later, the testatrix died. Id., 340. The Supreme
Court upheld the finding of the trial court that the testa-
trix did not have testamentary capacity, in part because
the disposition of her property was unnatural. Id. The
Supreme Court determined that “[t]he trial court might
have found that it would be an unnatural disposition of
[the testatrix’s] property for her to cut off the plaintiff
entirely although she was her only daughter, was on
cordial terms with her and had been promised an equal
share of her estate in return for the release given of the
interest in her father’s estate.” Id.
Bartunek v. Bartunek

Thomas’ 2011 will made specific bequests of his prop-
erty in the event of his death. The will stipulated that,
if his wife should predecease him, then 50 percent of the
property in his estate should go to the Anna and Tom Bar-
tunek Animal Fund. Thomas also made explicit bequests
for each of his grandchildren. The remainder of the estate
would have been divided as follows: 35 percent to David,
5 percent to Thomas, 5 percent to Brianna Bartunek, 5
percent to Michael, and one dollar to Steven.
The 2016 will is substantially different from the 2011
will. It begins with an acknowledgement that Thomas’
wife predeceased him and that he has one child, David.
It goes on to bequeath Thomas’ entire estate, including
all possessions owned and any residual, to Rudolph. It
includes a provision that a memorandum containing
Thomas’ wishes with regard to the disposition of his
personal property may be included with the will. The
memorandum, though it should be respected, cannot
affect “the absolute nature of the bequests made” with
respect to any property owned by Thomas. Rudolph also
is named as executor of the will in addition to being its
sole beneficiary. There were no provisions included that
would bequeath any property to the fund Thomas and
his wife had sought to create in the 2011 will, nor were
there any provisions that would bequeath any property
to any of his grandchildren.
The court determined that the underlying facts sup-
ported the conclusion that the disposition of Thomas’
property was unnatural. It concluded that “it would be
an unnatural disposition of Thomas’ property to cut
off his grandchildren and the animals he loved . . . .
[H]is grandchildren remained on cordial terms with him,
and he told his late wife that he would bequeath a por-
tion of his estate to the benefit of those animals.” The
court found that David and his children all had a loving
relationship with Thomas. Doherty even testified that
Thomas “[v]alued his farm and his animals more than
anything.” As was stated previously, we must defer to the
trier of fact’s assessment of the credibility of witnesses.
Bartunek v. Bartunek

Riscica v. Riscica, supra, 101 Conn. App. 205. Accord-
ingly, because the court’s findings are supported by
facts in the record and we are not left with the definite
and firm conviction that a mistake has been made, we
reject the defendants’ claim that the court improperly
found that Thomas lacked testamentary capacity when
he executed the 2016 will.
II
The defendants also claim that the court made erro-
neous factual findings in support of its conclusion that
Thomas was unduly influenced. They argue that the
court’s finding that Thomas was suffering from Alzheim-
er’s disease and dementia, which would make him more
susceptible to influence, was clearly erroneous. They
also argue that the mere opportunity to exert influence
is not enough, there was a lack of evidence indicating an
intent by the defendants to influence Thomas, and, on its
face, the 2016 will does not support a finding of undue
influence. The court properly determined that each ele-
ment of undue influence was met after considering the
testimony of the witnesses and the distinct differences
in the terms of the 2011 will and the 2016 will. We reject
the defendants’ claim that the court’s ruling was made
on the basis of clearly erroneous factual findings.
As previously noted in this opinion, “[a]ppellate review
of a trial court’s findings of fact is governed by the clearly
erroneous standard of review. The trial court’s findings
are binding upon this court unless they are clearly erro-
neous in light of the evidence and the pleadings in the
record as a whole. . . . We cannot retry the facts or pass
on the credibility of the witnesses.” (Internal quotation
marks omitted.) Holloway v. Carvalho, supra, 206 Conn.
App. 388. “Ordinarily, the burden of proof on the issue
of undue influence rests on the one alleging it . . . .”11
11
“In will contests, we recognize an exception to this principle when
it appears that a stranger, holding toward the testator a relationship of
trust and confidence, is a principal beneficiary under the will and that
the natural objects of the testator’s bounty are excluded. . . . The bur-
den of proof, in such a situation, is shifted, and there is imposed upon
Bartunek v. Bartunek

(Internal quotation marks omitted.) Id. Therefore, in the
present case, the burden of proof rests with the plaintiffs.
“Undue influence is the exercise of sufficient control
over a person, whose acts are brought into question, in
an attempt to destroy his [or her] free agency and con-
strain him [or her] to do something other than he [or she]
would do under normal control. . . . It is stated generally
that there are four elements of undue influence: (1) a
person who is subject to influence; (2) an opportunity to
exert undue influence; (3) a disposition to exert undue
influence;12 and (4) a result indicating undue influence.
. . . Relevant factors include age and physical and men-
tal condition of the one alleged to have been influenced,
whether he [or she] had independent or disinterested
advice in the transaction . . . consideration or lack or
inadequacy thereof for any contract made, necessities
and distress of the person alleged to have been influ-
enced, his [other] predisposition to make the transfer in
question, the extent of the transfer in relation to his [or
the beneficiary the obligation of disproving, by [clear and convincing
evidence], the exertion of undue influence by him.” (Internal quotation
marks omitted.) Holloway v. Carvalho, supra, 206 Conn. App. 388.
This is not the case here, however, because the court did not find that
the test was met to shift the burden, and neither party claims that as
error on appeal.
12
This court previously has affirmed a ruling that a will, changed
at the decedent’s request due to frustrations with the plaintiff, was
not the result of undue influence. See Larocque v. O’Connor, 90 Conn.
App. 156, 165, 876 A.2d 1229 (2005). In Larocque, the decedent made
it clear that she was frustrated with the plaintiff’s actions. Id., 167.
At the decedent’s request, the defendant scheduled an appointment for
the decedent to meet a lawyer and change the will. Id., 158. Further-
more, after the drafting of the new will, the decedent gave the plaintiff
three months to change her behavior before executing the new will.
Id. Additionally, the attorney’s actions significantly mitigated any
potential claim for undue influence. Id., 166–67. The attorney used the
decedent’s acquaintances as witnesses, obtained a statement from the
decedent’s doctor that the decedent was of sound mind, included the
decedent’s reasons for disinheriting the plaintiff in the will, recorded
his conversations with the decedent and the witnesses and spoke to
the plaintiff’s attorney to detail the decedent’s frustrations with the
plaintiff. Id. Under those circumstances, this court affirmed the trial
court’s finding that these facts clearly established that the defendant
lacked a disposition to influence the decedent. Id., 167.
Bartunek v. Bartunek

her] whole worth . . . failure to provide for all of his [or
her] children in case of a transfer to one of them, active
solicitations and persuasions by the other party, and the
relationship of the parties.” (Footnote added; internal
quotation marks omitted.) Bassford v. Bassford, supra,
180 Conn. App. 354.
“The existence and exercise of such undue influence is
not often susceptible of direct proof. It is shown by all
the facts and circumstances surrounding the testatrix,
the family relations, the will, her condition of mind, and
of body as affecting her mind, her condition of health,
her dependence upon and subjection to the control of the
person influencing, and the opportunity of such person
to wield such an influence. Such an undue influence may
be inferred as a fact from all the facts and circumstances
aforesaid, and others of like nature that are in evidence
in the case, even if there be no direct and positive proof
of the existence and exercise of such an influence.” (Inter-
nal quotation marks omitted.) Lee v. Horrigan, 140
Conn. 232, 238–39, 98 A.2d 909 (1953). Put differently,
“[w]here there is no direct evidence of influence a factual
foundation supportive of a reasonable inference that,
but for the plaintiff’s actions, the testator would have
made a different disposition, is sufficient to sustain a
finding of undue influence.” Stanton v. Grigley, supra,
177 Conn. 565.
The court began its analysis by addressing the first
prong of the undue influence test. The court determined
that the same facts found to establish that Thomas lacked
testamentary capacity also established that Thomas
was susceptible to undue influence. The court found
that Thomas was severely depressed in the time before
he executed his will. This fact is corroborated by the
testimony of witnesses for the defendants and for the
plaintiffs.
Michelle testified that she “thought that [Thomas]
had some kind of depression from Anna passing away”
and further mentioned that he was prescribed medica-
tion for his depression. Her testimony was supported by
Bartunek v. Bartunek

Doherty’s deposition, in which he testified that Thomas’
depression and dementia-like symptoms were indicative
of “pseudodementia or false dementia.” Thomas’ grand-
children testified that he had been suffering from some
form of mental incapacity since at least 2011.
Michael testified that he and one of his brothers orga-
nized a dinner for all the siblings and their grandparents.
He testified that during that dinner, Thomas was having
difficulty remembering all his grandchildren and where
they were dining. He also testified that Thomas would
repeatedly ask him the same questions. Shortly after
Anna died, Michael noted that Thomas’ home was in an
unlivable condition. While he was there, he also noted
that Thomas had likely soiled the pants he was wearing
multiple times.
Michael further testified that he, his father, and his
stepmother would bring Thomas food for each day of
the week, with the containers labeled so that he would
remember to eat. He testified that Thomas was simply
not taking care of himself the same way that he used to.
Steven testified that Thomas did not recognize him even
though he was at a birthday party for Steven’s daugh-
ter. Although the court did not explicitly find that this
testimony was credible, we conclude that a fair reading
of the court’s memorandum of decision indicates that it
implicitly found Steven’s testimony credible. The court
found that Thomas was suffering from dementia and
Alzheimer’s disease since at least 2015, was severely
depressed following the death of his wife, and was pre-
scribed medication to address his depression. We con-
clude that the court had ample evidence to find that
Thomas was susceptible to undue influence.
The court next addressed prongs two and three of the
test, namely, whether the defendants had the opportunity
and disposition to influence Thomas, which it found they
did. The facts that established this have been stated pre-
viously in this opinion. Specifically, the court found that
the defendants had the opportunity to influence as they
were serving as Thomas’ coconservators. Additionally,
Bartunek v. Bartunek

the court found that it was Rudolph who inquired about
how to change Thomas’ will, and Rudolph even brought
Thomas to the attorney Rudolph had previously used.
Lastly, the 2016 will bequeathed Thomas’ entire estate
to Rudolph. The court’s findings with respect to the
second and third elements of this test were supported
by the record.
The last element is whether the resultant will, on its
face, is indicative of undue influence. As was previously
mentioned, Thomas’ 2011 will included his son, David,
and each of David’s children. It also had a provision that
bequeathed 50 percent of his estate to an animal fund
created by Thomas and Anna. Conversely, his 2016 will
contains none of these provisions. Instead, the new will
gave Rudolph the entirety of Thomas’ estate. There
was no evidence in the record to indicate that Thomas’
relationship with his grandchildren or animals changed
to such an extent that he would write them out of the
2016 will. Additionally, there is no evidence that Jen-
sen discussed removing Thomas’ grandchildren or the
animal fund from the 2016 will. Therefore, because the
court’s conclusion that the plaintiffs met their burden
of proof with respect to undue influence is supported by
significant evidence in the record and we are not left with
the definite and firm conviction that a mistake has been
made, we reject the defendants’ final claim.
The judgment is affirmed.
In this opinion the other judges concurred.