October 7, 2011
Authored by: Luke Lantta
As a general rule, the personal representative of a decedent’s estate is usually the only person who can pursue an action to recover estate property. It’s one of the personal representative’s fiduciary duties to estate beneficiaries. Occasionally, in very limited circumstances, another person interested in the estate may be able to pursue an action in the personal representative’s place. The Connecticut Court of Appeals determined that those limited circumstances were not present in Litwin v. Ryan.After his retirement, P. Edward Lizauskas hired Mark Ryan to provide care to him. The care was the typical help with medical care, legal affairs, business affairs and the management of daily living. Lizauskas’s health and mental condition had started deteriorating, so he granted Ryan a power of attorney. Sometime thereafter, Lizauskas signed a document entitled “Assignment” which purported to assign Lizauskas’s 1160 shares of common stock in Lizbro, Inc. to Ryan. After Lizauskas died, his personal representative, Nathan Litwin, sued Ryan alleging that the assignment was procured through undue influence, and Lizauskas lacked the capacity to make the inter vivos gift of stock to Ryan.
After the lawsuit started, Iris W. Lord filed a motion to intervene as a party plaintiff. Lord alleged that she was a necessary party because she had an interest in the subject matter of the lawsuit. More specifically, she alleged that she was the sole remaining potential derivative beneficiary through the estate of Grayce Lizauskas, the deceased wife of P. Edward Lizauskas. In other words, Lord claimed that if the transfers to Ryan were voided, they would pass under Lizauskas’s will to Grayce’s estate and then to Lord as the sole beneficiary of Grayce’s estate. Lord summarily alleged that her interest in the action was not being adequately represented, and that neither Litwin nor his attorney would communicate with her regarding the case.
A hearing was held on Lord’s motion to intervene, and no one presented any evidence or requested to present any evidence to support Lord’s claims. The trial court determined that Lord could not intervene. Any interest she had in the outcome of the case was being pursued by Litwin as personal representative of Lizauskas’s estate. The Connecticut Court of Appeals agreed.
In order to intervene, Lord had to show that her interest was not adequately represented by any other party in the litigation. Lord failed to satisfy her burden because she did not allege facts showing that her interests were not adequately represented by Litwin. Since Litwin’s interests were identical to Lord’s interests, she was adequately represented.
The appellate court recognized that, separate from the issues it considered, Lord might not even have standing to sue Ryan. As the court noted, ordinarily “a beneficiary has no standing to bring an action regarding harm to a trust.” It did not reach this issue in light of its resolution of the appeal.
Lord could have potentially cured her defect by raising specific facts supporting her conclusory allegation that Litwin was not adequately representing her interests or by presenting even her own testimony at the hearing before the trial court. On appeal, Lord tried to be more specific about the alleged lack of adequate representation by claiming that Litwin’s lawyer failed to adequately prepare for trial by not keeping fact and expert witnesses informed of the status of the proceedings. Because Lord only raised this issue on appeal and not in the trial court, the appellate court did not – and could not – consider it.