Representative Arthur J. O'Neill, Chairman
William R. Breetz
Representative Robert Farr
Jon P. Fitzgerald
Robert W. Grant
Representative Michael P. Lawlor
Michael W. Lyons
Mary Anne O'Neill
Joel I. Rudikoff
Edmund F. Schmidt
Joseph J. Selinger, Jr.
Judge Elliot N. Solomon
Professor Colin C. Tait
Professor Terry J. Tondro
I. Milton Widem
Senator Donald E. Williams, Jr.

Seal-blue4.jpg (4041 bytes)

David D. Biklen
Executive Director

David L. Hemond
Chief Attorney

Jo A. Roberts
Senior Attorney

Connecticut Law Revision Commission
State Capitol
Room 509A
Hartford, Connecticut 06106-1591
(860) 240-0220
FAX (860) 240-0322
Email: lrc@po.state.ct.us

To:   Senator Donald E. Williams
   Representative Michael P. Lawlor
   Co-Chairs, Judiciary Committee
From:   David L. Hemond
Date:   December 16, 1999
Re:   Law Revision Commission Validating and Probate Proposals for 2000 session

At its November and December meetings, the Law Revision Commission approved (1) several changes to Public Act 99-238, the new prospective validating act passed last session, to ensure its coordination with the old special validating acts, and (2) three proposals of the Commission's Probate Committee for revisions to the probate statutes. The primary probate proposal clarifies and expands the right under current law of a parent to appoint a guardian for a minor child to take effect on the parent's death. Proposed draft bills are attached.

More specifically, the proposals are as follows:

1. Validating revisions to Public Act 99-238

Four essentially technical issues in the new validating act should be addressed. Because Public Act 99-238 was passed with its effective date extended to July 1, 2000, that fine-tuning can be accomplished in the next session before the effective date. The issues are:

Reinsert inadvertently omitted language

Public Act 99-238 is intended to substantively tract language in the old omnibus special validating acts. However, in redrafting for clarity, the following drafting glitch resulted from inadvertently overly-restrictive language.

Section 4(b)(3) validates, as an insubstantial defect, a conveyance that refers to a "noncomplying" filed map or subdivision plan. The section replaces section 5 of the old (retroactive) form of validating act as set out in Special Act 97-6 and again set out in section 5 of Special Act 99-7. The new Public Act language refers to a failure by the map or plan to comply with any statutory requirement as to preparation, form,

certification or filing. However, the old provision that the new section replaces refers to failure to "comply with any requirement or requirements of any special or general law, municipal ordinance or regulation." This broader language, referring to requirements of any special or general law, municipal ordinance or regulation rather than to statutory requirements, is the language that should have been used in section 4(b)(3).

Public Act 99-238 should therefore be amended by revising section 4(b)(3) to read as follows:

"(3) The instrument transfers an interest in land by reference to a filed map or subdivision plan and the map or plan does not comply as to preparation, form, certification, approval or filing with any requirement or requirements of any special or general law, municipal ordinance or regulation;"

Reinsert language concerning an insubstantial defect

Public Act 99-238 deleted reference to a provision in the old special acts that validated an instrument's failure to include the town and state in which the property is located. This is a nonsubstantive noncompliance that does not need to be validated. However, for consistency and clarity, this irregularity should be included as an "insubstantial defect" under section 4(b).

Public Act 99-238 should be amended to include the following new subsection 4(b)(8) (and the current subsections 4(b)(8) and (9) should be renumbered accordingly):

"The instrument fails to state the town and state in which the real property described in the instrument is located:"

Reinsert existing language re use and occupancy validation

Public Act 99-238 relies on the sufficiency of existing section 8-13a of the General Statutes, together with section 4(b)(3) and (4) of the Act to validate conveyances lacking subdivision approval, to address title defects arising from a failure to meet subdivision requirements. However, those provisions do not adequately validate "use and occupancy" issues that were previously validated under the Special Acts to address a noncompliance with subdivision laws. The provisions of section 6(b) of the "old validating act", Special Act 99-7, should be included in the General Statutes as a statement of the law concerning use and occupancy where a subdivision noncompliance exists. The General Statutes should include the following language from section 6(b) of Special Act 99-7:

"No use or occupancy of or the presence of any building or other structure erected on a lot or lots either shown on a filed or recorded map or plan or subdivision or located in a subdivision created by the physical division of land into three or more parcels shall be deemed illegal or invalid because the lot or lots on which any building or other structure is located is not shown on an approved plan of subdivision or because the filed or recorded map or plan of subdivision fails in any manner to comply with any requirement or requirements of any general or special law, ordinance or regulation."

Cover the validation gap

By extending the effective date of the Public Act 99-238 to July 1, 2000, the legislature may have created a "validation gap" between the effective date of the retroactive act - which validated instruments up to January 1, 1999, and the effective date of the prospective act - which does not take effect until next July. Because the language as adopted expressly covers instruments of conveyance that are recorded after January 1, 1997 (because the act was intended to avoid a gap as to conveyances even if the retroactive act was not adopted), no such gap exists for the conveyancing provisions. However, the other validating provisions in the Public Act did not include language applying their provisions retroactively.

Those provisions are section 1, concerning assessment lists and tax levies, section 2, concerning certificates of continuing tax liens, section 3, concerning certain declarations, section 4(f), concerning out-of-state releases by fiduciaries, 5, concerning certain notices, and section 6, concerning certain orders of the Probate Court.

New language should state that those provisions apply retroactively to errors and omissions occurring on or after January 1, 1999. Such a provision would read as follows:

"Sections 1, 2, and 3, subsection (f) of section 4, and sections 5 and 6 of Public Act 99-238 apply to errors, irregularities, and omissions occurring on or after January 1, 1999."

A proposed bill addressing these validating issues is attached.

2. Revisions to the Probate Statutes

The Law Revision Commission recommend the following probate revisions:

Revision of section 45a-596 to allow appointment of a guardian by a

nontestamentary instrument

The Commission recommends revising section 45a-596 to allow appointment by a parent, through an instrument other than a will, of a guardian for the parent's minor children to take effect on death of the parent, adopting the rule of section 5-202 of the Uniform Probate Code.

Section 45a-596 currently allows appointment of such a guardian by will but does not authorize such an appointment through a nontestamentary instrument. By contrast, section 5-202 of the Uniform Probate Code allows appointment of a regular guardian by nontestamentary instrument as well as by will. Under current Connecticut law, section 45a-624 similarly also allows designation in a nontestamentary instrument of a standby guardian.

The Commission recommends following the lead of Uniform Probate Code section 5-202. Allowing appointment in a nontestamentary instrument will provide a significant convenience to parents dealing with the difficult issue of ensuring that a proper guardian is appointed to care for their children. The proposal also follows the lead of the uniform provision in allowing parents to make such a designation of guardian while they are both living. The current Connecticut statute is limited by its language to designation by a "surviving" parent. It is not clear, given the current Connecticut language, that a designation made at a time when both parents are living is valid.

The recommendation includes language to resolve any conflict between appointing instruments in favor of an appointment by the last surviving parent.

Simply put, as a matter of policy, parents ought to be able to designate a guardian for their children without waiting for one parent to die or rewriting and executing a will. The Commission proposal ensures that they will have that option.

Change of the income reporting date

Subsection (g) of section 45a-92 sets requirements for the reporting of income by probate judges. The reporting requirement is set out to allow the Probate Court Administrator to monitor court income for purposes of payments and allocations due under the section. The Probate Court Administrator reports that the current reporting deadline of March first of the succeeding calendar year has proved to be inconveniently early for the probate judges in the light of their accounting practices. He requests that the deadline be extended to April first of the succeeding calendar year. Because the extension appears reasonable and because the reports are made to, and for the convenience of, the Probate Court Administrator, the Commission endorsed the proposed change.

Technical changes concerning voluntary admissions

Section 17a-11 sets out a process for voluntary commitments of troubled children to the care of the Department of Children and Families. Under that process, the continuation of care is subject to ongoing review by the Probate Court. The court must conduct a dispositional hearing at least every twelve months.

Two technical revisions of section 17a-11 were requested by the Probate Court Administrator and approved by the Commission.

First, the Commission asks that the language that sets out the continuing jurisdiction of the court, and the duty of the court to conduct a dispositional hearing at least every twelve months, be set out in subsection (c) rather than subsection (d). Subsection (c) contains the process for the initial dispositional hearing while subsection (d) sets out a process for subsequent hearings. Because the continuing supervisory jurisdiction of the court dates from the initial hearing, it makes sense to juxtapose the authorizing language for continuing jurisdiction with the initial hearing to avoid the appearance that continuing jurisdiction only exists after a subsequent hearing.

Second, the process in subsection (d) concerning subsequent dispositional hearings requires that the motion for a subsequent hearing be set "in the probate court for the district in which a parent or guardian of the child or youth resides." This language conflicts with subsection (h) which allows transfer of a file for cause to a court in a district other than the initial district. The conflict is resolved in the proposed draft by deleting the subsection (d) language that specifies the district of filing. That language is unnecessary because the appropriate court for filing, the court that has jurisdiction, is already established by the language of subsection (c) and subsection (h).

As noted above, proposed draft bills for these recommendations are attached. If you have any questions concerning the recommendations, please call.

cc:   Arthur J. O'Neill, Chair
   Ranking Members, Judiciary Committee
   Members, Law Revision Commission
   Sharon Brais

Proposed Draft:  Technical Revisions to Validating Provisions Probate - Proposed Draft Concerning Parental Appointment of Guardian Probate - Proposed Draft Concerning Income Reporting Probate - Proposed Draft Concerning Voluntary Admissions