Heibeck v. Heibeck

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Heibeck v. Heibeck

BARBARA HEIBECK ET AL. v. MARTIN
JOHN HEIBECK ET AL.
(AC 46570)
Elgo, Cradle and Prescott, Js.

Syllabus

The defendants appealed from the judgment of the Superior Court reversing
a Probate Court decree that declared null and void a lease executed by
the plaintiffs and the owner-lessor, G. The lease instrument, which was
incorporated by reference in the will of G, was executed in 2016 and com-
menced on the date of G’s death, which occurred in 2019. On appeal, the
defendants claimed that the court improperly concluded that the lease was
valid. Held:

The trial court properly concluded that the lease was valid, as the lease,
which conferred rights in the plaintiffs prior to the death of G, was contrac-
tual rather than testamentary in nature and functioned more as a will substi-
tute than a testamentary instrument.
Argued September 9—officially released December 24, 2024

Procedural History

Appeal from the decree of the Probate Court for the
district of Norwalk-Wilton granting the motion of the
named defendant et al. to invalidate a lease, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, and tried to the court, Hon. Charles T. Lee,
judge trial referee; judgment reversing the Probate
Court’s decree, from which the named defendant et al.
appealed to this court. Affirmed.
Michael P. Kaelin, for the appellants (named defen-
dant et al.).
Andrew B. Nevas, with whom, on the brief, was Kris-
ten G. Rossetti, for the appellees (plaintiffs).
Opinion

ELGO, J. In this probate appeal, the defendants Mar-
tin John Heibeck, Thomas Edward Heibeck, Michael
William Heibeck, and George Stephen Heibeck appeal
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Heibeck v. Heibeck

from the judgment of the Superior Court rendered in
favor of the plaintiffs, Barbara Heibeck and Skylar
Smith.1 On appeal, the defendants claim that the court
improperly deemed valid a commercial lease executed
in 2016 whose lease term commenced upon the death
of the owner-lessor in 2019. We affirm the judgment of
the Superior Court.
The facts of this intrafamily dispute are not contested.
At all relevant times, the family patriarch, George W.
Heibeck (George), owned commercial real property
known as 943 and 951 Danbury Road in Wilton (prop-
erty). The property contains multiple buildings that
house a gas station, a nail salon, a hair salon, and a
well-known seasonal restaurant known as the Heibeck
Food Stand (food stand) that the Heibeck family opened
more than ninety years ago.2
As the court found in its memorandum of decision,
George entered into a five year lease with an unrelated
third party on September 11, 2012, to operate a nail
salon in part of the log cabin on the property (nail salon
lease). That lease obligated the lessee to pay utility
costs and $2000 in monthly rent.3
On April 22, 2015, George entered into a lease with the
plaintiffs for the food stand ‘‘and its adjacent exterior
surroundings’’ on the property (food stand lease). The
term of that lease was thirty-five years, concluding on
1
Although Stephen B. Keough was also named as a defendant, all refer-
ences herein to the defendants are to Martin John Heibeck, Thomas Edward
Heibeck, Michael William Heibeck, and George Stephen Heibeck only. See
footnote 6 of this opinion. For clarity, we refer to the parties individually
by first name.
2
In its memorandum of decision, the court found that the hair and nail
salons are located in a building on the property known as the log cabin.
For convenience, we employ that nomenclature in this opinion as well.
3
In a June 6, 2022 affidavit submitted in opposition to the defendants’
motion for summary judgment, Barbara averred that this nail salon establish-
ment was ‘‘no longer operating’’ on the property. Skylar testified similarly
at trial.
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April 22, 2050, and provided for a possible extension
for two additional terms of five years. The food stand
lease obligated the plaintiffs to pay utility costs and
$1500 in monthly rent. The food stand lease also
included a right of first refusal, which granted the plain-
tiffs an option to purchase the leased premises in the
event that George received a bona fide offer during the
term of the lease.
On January 1, 2016, George entered into a ten year
lease with Barbara to operate a hair salon in part of
the log cabin (hair salon lease). That lease obligated
Barbara to pay utility costs and $2000 in monthly rent.
The hair salon lease provided for a possible extension
for a term of ten years.
On or before June 21, 2016, George entered into a
lease with the plaintiffs that pertained to the food stand,
the log cabin, and appurtenant parking spaces on the
property (99 year lease).4 The term of that lease was
ninety-nine years ‘‘commencing on the date of
[George’s] death.’’ The 99 year lease expressly was sub-
ject to the three existing leases on the property—
namely, the nail salon, hair salon and food stand leases.
In addition, the 99 year lease obligated the plaintiffs to
‘‘pay all expenses of the demised premises,’’ to ‘‘main-
tain the buildings and grounds so that they do not fall
into disrepair,’’ to ‘‘pay real estate taxes’’ on the leased
premises, to pay the plaintiffs’ ‘‘own utilities,’’ and to
‘‘keep the premises insured against liability and fire
and other forms of casualty.’’ The 99 year lease further
provided that the plaintiffs ‘‘may at any time sub-lease’’
the leased premises, may ‘‘mortgage [their] leasehold
interest,’’ and ‘‘may if they wish cancel or revise the
4
Skylar was the only witness at trial. In its memorandum of decision, the
court found that Skylar testified ‘‘without objection’’ that the third lease had
been signed ‘‘on or before June 21, 2016.’’ In her sworn affidavit submitted
in opposition to the defendants’ motion for summary judgment, Barbara
likewise averred that the 99 year lease was executed on June 21, 2016.
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[n]ail [s]alon lease and the [food stand lease] since
[Barbara] is now both [l]essor and [l]essee.’’5
On June 21, 2016, George executed his last will and
testament (will). Relevant to this appeal are two ‘‘spe-
cific legacies’’ set forth therein. Article VI, § 1, states
in relevant part: ‘‘I give devise and bequeath to [Barbara]
a ninety-nine (99) year [l]ease (which has already been
signed but to be effective upon date of my death and
recorded upon my death) on the building occupied by
her hair salon, by a nail salon rented to a third party,
and by the [food stand], and surrounding area all as
described in said 99 year [l]ease which has been exe-
cuted by myself, by my daughter [Barbara], and by my
grandson [Skylar]. As set forth in said 99 year [l]ease,
there are to be no rent payments but [the plaintiffs are]
to pay all expenses related to the leased premises. She
may continue to sub-lease to the tenant of the nail
salon, as sub-landlord. She shall be in full control of
the property [described in the 99 year lease].’’
In article VI, § 2, of the will, George bequeathed the
entirety of the property to the defendants—including
the gas station, the food stand, and the log cabin—
subject to the terms of the 99 year lease, stating in
relevant part: ‘‘This entire gift of the entire [property]
is . . . subject to [the 99 year lease] to [the plaintiffs],
which lease become[s] effective upon the date of my
death.’’
On January 14, 2019, George entered into a five year
lease with a limited liability company formed by the
defendants known as Heibeck Motors Sons, LLC, to
operate a gas station on the property (gas station lease).
5
A review of the leases in question, which were admitted into evidence,
indicates that Barbara was not a party to the nail salon lease. Rather, she
was the sole lessee in the hair salon lease. To the extent that this provision
of the 99 year lease appears to contain a scrivener’s error, we note that
neither party has raised such a claim in these proceedings.
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That lease obligated Heibeck Motors Sons, LLC, to pay
utility costs and $1370 in monthly rent. The gas station
lease provided for a possible extension of five years.
George died on February 26, 2019. On July 26, 2019,
Barbara filed a petition to admit his will to probate with
the Probate Court for the district of Norwalk-Wilton.
In response, the defendants filed an objection to that
petition and sought the appointment of a temporary
administrator of George’s estate. The Probate Court
thereafter appointed Attorney Stephen B. Keough as
temporary administrator of the estate.6 On December
30, 2020, the plaintiffs paid one half of the real estate
taxes on the property.
On March 23, 2021, the defendants filed a motion
with the Probate Court to declare the 99 year lease null
and void. The plaintiffs objected to that motion, and
the Probate Court heard argument from the parties on
May 24, 2021. On August 3, 2021, the Probate Court
granted the defendants’ motion and issued a decree in
which it declared the 99 year lease invalid.
From that decree, the plaintiffs appealed to the Supe-
rior Court. In their complaint, the plaintiffs alleged,
inter alia, that the 99 year lease ‘‘is a valid commercial
lease, not a testamentary instrument . . . .’’ In their
answer, the defendants denied that allegation and fur-
ther alleged, as a special defense, that the plaintiffs had
‘‘defaulted in their obligations under the [99 year lease]
by not paying their share of real estate taxes under the
terms of the lease . . . .’’ The plaintiffs denied that
special defense.
On April 22, 2022, the defendants filed a motion for
summary judgment, claiming that they were entitled to
6
Although Attorney Keough was named as a defendant in the plaintiffs’
appeal to the Superior Court, he neither appeared nor participated in that
proceeding. He likewise has not appeared or participated in this appeal.
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judgment as a matter of law because ‘‘there is no genu-
ine issue that the lessor did not own the real property
at the time the lease was to become effective and was
to commence . . . .’’ The plaintiffs filed an opposition
to that motion, which was accompanied by the sworn
affidavit of Barbara dated June 6, 2022. On October 12,
2022, the court denied the defendants’ motion, conclud-
ing that genuine issues of material fact existed as to
‘‘whether the lease was binding when it was executed
by the parties . . . .’’
The court held a trial de novo on February 1, 2023,
at which it admitted documentary evidence from the
parties and heard testimony from Skylar. In its subse-
quent memorandum of decision, the court set forth
detailed findings of fact and ultimately concluded that
the 99 year lease was valid. The court also rejected the
defendants’ special defense. It therefore sustained the
plaintiffs’ appeal, reversed the decree of the Probate
Court, and remanded the matter to that court for further
proceedings. From that judgment, the defendants
now appeal.
At the outset, we note what is not at issue in this
appeal. The defendants do not challenge the factual
findings of the Superior Court or its decision rejecting
their special defense. They likewise do not dispute the
court’s determinations that George intended to make
‘‘his devise of the entire property to [the defendants]
subject to the [99 year lease]’’ and that ‘‘[i]t was the
intent of [George] that [the plaintiffs] would have the
right to occupy and operate [the food stand] and that
the businesses in the log cabin would be under [the
plaintiffs’] control. . . . George wanted [the food
stand] to continue under the management of [the plain-
tiffs] for a long time after his death, specifically, ninety-
nine years.’’
The defendants’ sole claim on appeal is that the court
improperly concluded that the 99 year lease was valid
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because an owner of real property does not have the
legal authority to enter into a lease whose term com-
mences upon the owner-lessor’s death. We do not agree.
Our review of the defendants’ claim is guided by
certain well established precepts. ‘‘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.’’ (Citations omitted.) Kerin v. Stangle, 209 Conn.
260, 263–64, 550 A.2d 1069 (1988). In cases in which no
record was made of the proceedings before the Probate
Court, ‘‘the Superior Court [is] required to undertake
a de novo review of the Probate Court’s decision.’’7
(Internal quotation marks omitted.) Salce v. Cardello,
348 Conn. 90, 104, 301 A.3d 1031 (2023); see also Kerin
v. Stangle, supra, 264 (function of Superior Court in
appeals from order or decree of Probate Court ‘‘is to
take jurisdiction of the order or decree appealed from
and to try that issue de novo’’). The defendants’ claim
regarding the validity of a lease whose term commences
upon the death of the owner-lessor presents a question
of law over which our review is plenary. See Salce v.
Cardello, supra, 104; see also Hynes v. Jones, 175 Conn.
App. 80, 93, 167 A.3d 375 (2017), rev’d on other grounds,
331 Conn. 385, 204 A.3d 1128 (2019).
We begin by noting the anomalous scenario presented
in this case, which involves both a written lease instru-
ment executed by George and the plaintiffs, and a will
that incorporates that lease instrument by reference.
We therefore consider, as a threshold matter, whether
7
The parties in the present case have stipulated that no record was made
of the Probate Court proceedings.
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the 99 year lease is contractual or testamentary in
nature.8
As our Supreme Court has observed, ‘‘[a] lease is a
contract.’’ (Internal quotation marks omitted.) David
Caron Chrysler Motors, LLC v. Goodhall’s, Inc., 304
Conn. 738, 749, 43 A.3d 164 (2012); see also AGW Sono
Partners, LLC v. Downtown Soho, LLC, 343 Conn. 309,
342 n.29, 273 A.3d 186 (2022) (noting ‘‘the modern trend
of treating real property leases as contractual in nature,
rather than as assignments of property rights’’ (internal
quotation marks omitted)); Milford Paintball, LLC v.
Wampus Milford Associates, LLC, 117 Conn. App. 86,
89–91, 978 A.2d 118 (2009) (noting that ‘‘[a] lease is
like any other contract’’ and concluding that lease in
question was ‘‘binding and effective on the date on
which the lease was executed,’’ despite fact that its
lease term commenced on future date (internal quota-
tion marks omitted)). In the present case, the parties
agree that the 99 year lease constitutes a bilateral con-
tract between George and the plaintiffs.9 It imposes
specific obligations on the plaintiffs and contains a
‘‘default’’ provision, pursuant to which the lease may
be cancelled in the event that the plaintiffs fail to satisfy
those obligations.
In Dutra v. Davis, 70 R.I. 318, 323, 38 A.2d 471 (1944),
the Supreme Court of Rhode Island confronted the ques-
tion of ‘‘whether the instrument [at issue] is testamen-
tary or contractual’’ in nature. In resolving that question,
the court emphasized that ‘‘[t]he title, form and lan-
guage of the instrument is not that of a will but rather
8
As the parties acknowledged at oral argument before this court, Connecti-
cut authority on the novel issue presented in this appeal is scant. Our inquiry,
therefore, is aided by relevant authority from sibling jurisdictions and sec-
ondary sources.
9
At oral argument before this court, the defendants’ counsel remarked
that ‘‘there is no disputing that the lease that is at issue here is a bilateral
contract that [imposes] obligations from landlord to tenant and from tenant
to landlord.’’
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that of contract’’; id.; and that ‘‘[t]he instrument contains
no words that are usually employed in making a testa-
mentary gift.’’ Id., 323–24. The same is true with respect
to the 99 year lease at issue here. Moreover, the fact
that the 99 year lease and George’s will were executed
on the same date; see footnote 4 of this opinion; further
indicates that the 99 year lease is not testamentary in
nature. See In re O’Connor’s Estate, 273 Pa. 391, 395,
117 A. 61 (1922) (‘‘[w]here a decedent has done two
acts, one of which is distinctively testamentary in form,
and the other and later act is as distinctively nontesta-
mentary in form, and is couched, with strict technical
propriety, in the apt language of contract, there is no
reason for holding the latter testamentary’’ (internal
quotation marks omitted)); see also 1 W. Bowe & D.
Parker, Page on the Law of Wills (Rev. Ed. 2003) § 6.17,
p. 292 (‘‘[e]xecuting an instrument, which is clearly a
will, at the same time as the instrument in question,
tends to show that the latter is not a will’’).
Although the term of the 99 year lease commences
on the date of George’s death, it nonetheless remains
that ‘‘not every instrument which provides for perfor-
mance at or after death is testamentary in character.
If the instrument creates a right in the promisee before
the death of the testator, it is a contract.’’ In re Howe’s
Estate, 31 Cal. 2d 395, 398, 189 P.2d 5 (1948); accord
In re Lundgren’s Estate, 250 Iowa 1233, 1237, 98 N.W.2d
839 (1959) (‘‘[a]n instrument by which the maker grants
an estate or interest in praesenti, though possession
and enjoyment are postponed until after his death, is
not testamentary’’); In re Jacobson, 256 Md. App. 369,
395, 286 A.3d 600 (2022) (testamentary instrument ‘‘cre-
ates no present interest in the testator’s property’’); In
re Galewitz’ Estate, 206 Misc. 218, 221, 132 N.Y.S.2d
297 (1954) (‘‘Whether an instrument is a valid contract
or is an attempted testamentary instrument depends
upon the intention of the parties. The test in such case
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is whether the contract confers a fixed right in the
parties to it at the time it is made or whether it is to
have no effect at all until the death of either.’’), aff’d, 285
App. Div. 947, 139 N.Y.S.2d 897 (1955); In re Murphy’s
Estate, 191 Wn. 180, 191, 71 P.2d 6 (1937) (‘‘[v]iewing
the provisions of the lease as a whole, we feel that
this instrument conveyed some present interest’’); 1 W.
Bowe & D. Parker, supra, p. 290 (‘‘[i]f the instrument
creates a right in the promise before the death of the
promisor, the instrument is a contract regardless of the
date set for performance’’).
The 99 year lease creates such a right, providing in
relevant part that the plaintiffs ‘‘may at any time sub-
lease, assuming that the sub-lease does not violate any
then existing leases upon the premises.’’ The grant of
a right to the plaintiffs to sublease their interest in the
premises ‘‘at any time’’ stands in stark contrast to the
rent provision of the 99 year lease, which states that
‘‘[t]here shall be no rent during the term of this [l]ease.’’
(Emphasis added.) By its plain language, the 99 year
lease conveyed a present right to the plaintiffs to sub-
lease their future interest in the premises.10 Had the
parties intended to limit the right of the plaintiffs to
sublease that interest only during the term of the lease,
they could have so provided. See Connecticut National
Bank v. Rehab Associates, 300 Conn. 314, 323, 12 A.3d
995 (2011) (‘‘an examination of the contract as a whole
reveals that where the parties intended to include lim-
iting language, they did so’’). Instead, the 99 year lease
expressly authorized them to sublease that interest at
any time.
In addition, the 99 year lease expressly grants the
plaintiffs ‘‘permission to mortgage [their] leasehold
10
As but one example, the plaintiffs could agree to sublease the nail salon
in the log cabin on the property while continuing to operate the food stand
and the hair salon themselves.
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Heibeck v. Heibeck

interest.’’ Unlike the rent provision of the 99 year lease,
that contractual right to mortgage the leasehold interest
contains no limiting language whatsoever, which fur-
ther suggests that the 99 year lease is contractual, rather
than testamentary, in nature.
Revocability is another critical distinction between
testamentary and contractual instruments. As the
Supreme Court of Washington explained, ‘‘[t]he differ-
ence in effect between a contractual obligation and a
testamentary disposition is that the former creates a
present enforceable and binding right over which the
promisor has no control without the consent of the
promisee, while the latter operates prospectively, and
not in praesenti, and is wholly ambulatory and subject
to change at the testator’s wish, until his death.’’ In re
Lewis’ Estate, 2 Wn. 2d 458, 469, 98 P.2d 654 (1940).
‘‘[I]f the obligation prescribed by an instrument in the
form of a written contract is revocable and the vesting
of an interest or title thereunder is postponed until the
death of the obligor, the instrument is testamentary in
character and ineffective unless executed in the manner
prescribed by statute for the execution of wills. On the
other hand, a contract does not take on a testamentary
character merely because its performance is postponed
until after the death of the maker and devolves upon
his representatives.’’ Duemer v. Duemer, 86 Ohio App.
192, 202–203, 88 N.E.2d 603 (1949); see also Connecticut
Mutual Life Ins. Co. v. Burroughs, 34 Conn. 305, 315
(1867) (life insurance policy was not testamentary
instrument because it was contractual in nature and
irrevocable); In re Lundgren’s Estate, supra, 250 Iowa
1237 (‘‘[A]n otherwise valid contract is not rendered
testamentary by the fact it provides title to the property
is to pass, or payment is to be made, at the maker’s
death. Such an instrument may be enforced as a con-
tract according to its terms.’’); Mertens v. Mertens, 314
Mich. 651, 658, 23 N.W.2d 114 (1946) (‘‘a testamentary
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instrument is by its nature revocable’’); Chas. J. Smith
Co. v. Anderson, 84 N.J. Eq. 681, 686, 95 A. 358 (1915)
(‘‘[I]t cannot be logically reasoned that a contract to
convey after death is obnoxious to, and in contravention
of, our statute of wills. The covenant is in no sense
testamentary. It is contractual and irrevocable, and not
benefactory and ambulatory, which are distinguishing
features of wills.’’); In re Tunnell’s Estate, 325 Pa. 554,
560, 190 A. 906 (1937) (‘‘[a] testamentary provision is
ambulatory and may be revoked or changed by later
testamentary provision’’); In re Estate of Silverman,
579 S.W.3d 732, 736 (Tex. App. 2019) (written instru-
ment ‘‘must be revocable during the maker’s lifetime’’
to be testamentary in nature). The 99 year lease at issue
here is neither ambulatory nor revocable by the owner-
lessor. In light of the foregoing, we conclude that the
99 year lease is contractual, rather than testamentary,
in nature.
Our determination that the 99 year lease is contrac-
tual, rather than testamentary, in nature is largely dis-
positive of the defendants’ claim that an owner-lessor
lacks legal authority to enter into a lease for real prop-
erty whose term commences upon the owner-lessor’s
death. As one noted treatise observes, ‘‘[t]here are many
examples, too numerous to cite, of contracts providing
for performance at the death of one of the parties, or
for the termination of performance at the other party’s
death, that have been upheld as valid contracts as distin-
guished from wills. A few examples [are] a contract for
the sale of property on the death of the owner, or for
the devise of property . . . .’’ 1 W. Bowe & D. Parker,
supra, p. 292; see, e.g., In re Lundgren’s Estate, supra,
250 Iowa 1236–39 (bilateral contract executed during
testator’s life to convey deed to real property was valid
and was not part of testator’s estate because ‘‘the con-
tract is an absolute one to be performed at [her] death
[and] is not ambulatory in character’’); Reece v. Reece,
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Heibeck v. Heibeck

239 Md. 649, 661, 212 A.2d 468 (1965) (‘‘a promise in a
contractual instrument fixing the time for performance
at or after death ordinarily will not impair the instru-
ment’s validity as a contract’’); In re Rundberg’s Will,
177 Misc. 43, 44, 29 N.Y.S.2d 375 (1941) (‘‘It makes no
difference in such circumstances that part of the reward
[under the contract] is payable after death. The charac-
ter of the promise is not changed by the time fixed for
its performance.’’ (Internal quotation marks omitted.));
In re Herr’s Estate, 400 Pa. 90, 97, 161 A.2d 32 (1960)
(written instrument that provided for devise of real
property to nephew ‘‘upon the decease’’ of his aunt
constituted valid contract, and property was not part
of aunt’s estate); In re Murphy’s Estate, supra, 191 Wn.
188–99 (lease agreement providing that leased premises
would become property of lessee at time of owner-
lessor’s death if lessee complied with lease obligations
was valid contract and not testamentary disposition);
Harris v. Harris, 130 W. Va. 100, 102, 43 S.E.2d 225
(1947) (contract entered into at time of marital dissolu-
tion providing that all of decedent’s ‘‘property . . .
shall be divided equally between [former wife] and their
two children’’ at time of his death was not ‘‘a testamen-
tary disposition of property’’ and precluded widow’s
claim to ‘‘dower in [his] real estate’’). The defendants
have provided this court with no authority to the con-
trary.11
11
In their principal appellate brief, the defendants rely on Wooden v. Perez,
210 Conn. App. 303, 309, 269 A.3d 953 (2022), and Silverstein v. Laschever,
113 Conn. App. 404, 410, 970 A.2d 123 (2009), which both cite various cases
for the unremarkable proposition that title to real estate immediately passes
to heirs on the death of an owner of real property. Wooden and Silverstein
are inapposite to the present case, as neither concerned the validity or
efficacy of a contractual instrument executed prior to the death of the
property owner. The issue in Wooden was whether an administrator of an
estate lacked standing to pursue an adverse possession action on behalf of
the estate with respect to property for which the estate had no interest due
to an express devise in the decedent’s will. See Wooden v. Perez, supra,
305–307. Silverstein involved the question of whether the Probate Court
lacked authority in 2005 to order mortgages to be placed on property for
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Moreover, it is well established that life estates in
real property may be established by contractual agree-
ment.12 See Spooner v. Phillips, 62 Conn. 62, 70, 24 A.
524 (1892) (‘‘[l]ife estates are more frequently created
by will . . . and sometimes by contract’’); Irish Bend
Farm, LLP v. Pinney, Docket No. CV-XX-XXXXXXX-S,
2011 WL 6945660, *5 (Conn. Super. November 17, 2011)
(‘‘a life estate may be established by written contract’’);
In re Estate of Aryeh, 190 N.E.3d 886, 899 (Ill. App.
2021) (‘‘the parties executed a contract that created a
life estate in one of the parties’’); Boulls v. Boulls, 22
P.2d 465, 468 (Kan. 1933) (‘‘[t]he contract evidenced an
intention of the husband that the widow should have
at his death a life estate of all the property possessed
by him’’); Strasburg v. Clark, 319 Md. 583, 591, 573 A.2d
1339 (1990) (‘‘there was in effect between [the husband]
and [the wife] at the time of [the wife’s] death a contract
which provided for a life estate for [the husband] in
the [r]esidence’’); Swayne v. Lone Acre Oil Co., 98 Tex.
597, 606, 86 S.W. 740 (1905) (‘‘[a]t common law there
were two classes of life estates: [f]irst, conventional
life estates, or those which were created by contract;
and, second, those which came into existence by opera-
tion of law’’). We perceive little meaningful distinction
between an owner of real property contractually agree-
ing to provide a life estate in the property that com-
mences upon the owner’s death and an owner of real
property contractually agreeing to a lease of the prop-
erty that commences upon the owner’s death. In both
instances, the owner has utilized a nontestamentary
instrument to circumscribe the testamentary beneficia-
ry’s interest in the property for a limited period of time.
which it had ordered a final distribution in 1994 following the decedent’s
death. See Silverstein v. Laschever, supra, 417.
12
‘‘A life estate is an interest in real property, the duration of which is
limited by the life of some person. Such person may be the party creating
the estate, the tenant himself, or some other person or persons.’’ (Internal
quotation marks omitted.) Smith v. Planning & Zoning Board, 3 Conn.
App. 550, 553, 490 A.2d 539 (1985), aff’d, 203 Conn. 317, 524 A.2d 1128 (1987).
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Because the 99 year lease is not testamentary in
nature, it functions more as a will substitute than a
testamentary instrument. See, e.g., In re Verbeek’s
Estate, 2 Wn. App. 144, 153, 467 P.2d 178 (1970) (‘‘In a
sense the [real estate] contract was a substitute for a
will. However, an instrument may be a will substitute
and still not be testamentary.’’). As this court has
explained, ‘‘[a] will is a unique kind of transfer, with
special rules associated with the proper execution and
administration thereof.’’ Bezzini v. Dept. of Social Ser-
vices, 49 Conn. App. 432, 442, 715 A.2d 791 (1998). Wills
become effective after the death of the testator. See
Sigal v. Hartford National Bank & Trust Co., 119 Conn.
570, 575, 177 A. 742 (1935); see also Jacobs v. Button,
79 Conn. 360, 362, 65 A. 150 (1906) (‘‘[a] will is the legal
declaration of intention as to the disposition of one’s
property after death’’). At the same time, ‘‘Connecticut
courts have long held that valuable interests which
transfer upon the death of another can be executed in
instruments other than wills. The classic example is
that of a partnership contract providing for the passing
of a partner’s share to his spouse upon his death. . . .
Such a transfer is considered ‘nonprobate’ because the
interest transferred upon the transferor’s death is not
considered to be a part of the estate for the purposes
of probate. Multiple types of nonprobate transfers exist,
and are collectively referred to as ‘will substitutes.’ ’’
(Citations omitted.) Eberle v. Ohlheiser, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX
(September 27, 2012) (54 Conn. L. Rptr. 852, 855); see
also Bezzini v. Dept. of Social Services, supra, 442–43
(revokable trust is ‘‘a will substitute’’ that is not testa-
mentary in nature).

The Restatement (Third) of Property defines a will
substitute as ‘‘an arrangement respecting property or
contract rights that is established during the donor’s
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Heibeck v. Heibeck

life, under which (1) the right to possession or enjoy-
ment of the property or to a contractual payment shifts
outside of probate to the donee at the donor’s death;
and (2) substantial lifetime rights of dominion, control,
possession, or enjoyment are retained by the donor.’’
2 Restatement (Third), Property, Wills and Other Dona-
tive Transfers § 7.1 (a), p. 69 (2001). The 99 year lease
here meets that definition. Moreover, the Restatement
recognizes that ‘‘[a]n arrangement respecting either
property or contract rights can be used as a will substi-
tute.’’ Id., comment (a), p. 71. As it explains, a will
substitute is not tantamount to a will because ‘‘[a] will
transfers ownership of probate property at death. . . .
Property subject to a will substitute is not probate prop-
erty at death because it is then treated as no longer
owned by the donor. . . . [A] will substitute transfers
ownership during life—it effects a present transfer of
a nonpossessory future interest or contract right, the
time of possession or enjoyment being postponed until
the donor’s death. . . . [A] contract right can be con-
ferred on another even though the contract right is a
right to possession or enjoyment of money or other
property some time in the future and is subject to a
power or other conditions that might not be perma-
nently resolved until the contract right becomes
enforceable.’’ (Citations omitted; emphasis in original.)
Id., p. 70.
Although George also executed a valid will, that fact
has little bearing on whether the 99 year lease operates
as a will substitute. As the Appellate Court of Illinois
aptly observed, ‘‘[a] will and a will substitute may coex-
ist.’’ Handelsman v. Handelsman, 366 Ill. App. 3d 1122,
1130, 852 N.E.2d 862 (2006). In that case, the plaintiff
argued that the agreement in question was ‘‘not a ‘will
substitute,’ because [the decedent] executed a valid
will.’’ Id. The court rejected that contention, noting that
the agreement satisfied the definition of a will substitute
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set forth in § 7.1 of the Restatement (Third) of Property
‘‘whether or not [he] also executed a will.’’ Id. The court
further opined that ‘‘to hold that the existence of [the]
will means that the [agreement] is not a will substitute
would exalt form over substance.’’ Id. We concur with
that assessment.
To be sure, George incorporated the 99 year lease
by reference in his will. Neither party challenges the
propriety thereof in this appeal. See, e.g., Waterbury
National Bank v. Waterbury National Bank, 162 Conn.
129, 139, 291 A.2d 737 (1972) (will incorporated irrevo-
cable trust agreement by reference); Hechtman v. Savit-
sky, 62 Conn. App. 654, 661–62, 772 A.2d 673 (2001)
(will incorporated antenuptial agreement by reference);
Batterton v. United States, 406 F.2d 247, 249–50 (5th
Cir. 1968) (noting ‘‘the overwhelming majority rule in
the United States that, under proper circumstances a
will may incorporate clearly identified existing writings
as a part of [a] will’’), cert. denied, 395 U.S. 934, 89 S.
Ct. 1995, 23 L. Ed. 2d 448 (1969); 1 Restatement (Third),
Property, Wills and Other Donative Transfers § 3.6, p.
234 (1998) (‘‘[a] writing that is not valid as a will but
is in existence when a will is executed may be incorpo-
rated by reference into the will if the will manifests an
intent to incorporate the writing and the writing to be
incorporated is identified with reasonable certainty’’).
The fact that the 99 year lease is incorporated by refer-
ence into George’s will demonstrates that it was exe-
cuted prior to the execution of that will, a distinction
noted by the court in its memorandum of decision deny-
ing the defendants’ motion for summary judgment. See
1 Restatement (Third), supra, § 3.6, comment (b), p.
235 (‘‘[i]f the will refers to a writing as existing when
the will was executed, a writing that fits the will’s
description but is undated is presumed to have been
in existence when the will was executed’’); see also In
re Ruth Easton Fund, 680 N.W.2d 541, 547–48 (Minn.
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App. 2004) (concluding, in case involving written agree-
ment that was incorporated by reference into will, that
‘‘the agreement is presumed to have been in existence
when the will was executed’’ because they ‘‘were exe-
cuted on the same day’’). Indeed, the will here states
that the 99 year lease ‘‘has already been signed’’ and
‘‘has been executed by [George] and [the plaintiffs].’’
Incorporating a written agreement into a will serves
to memorialize the existence of nontestamentary instru-
ments and aids in ascertaining the testator’s intent. See
Waterbury National Bank v. Waterbury National Bank,
supra, 162 Conn. 139–41; Hechtman v. Savitsky, supra,
62 Conn. App. 662; 1 Restatement (Third), supra, § 3.6,
comment (h), p. 236. At the same time, the validity
and efficacy of such nontestamentary instruments is
unaltered by their incorporation into a valid will. The 99
year lease was executed in 2016 and became operative
irrespective of whether George prepared a will or died
intestate. The contractual rights memorialized
therein—including the right to sublease the premises
at any time and to mortgage the leasehold interest—
passed to the plaintiffs by virtue of that irrevocable
nontestamentary instrument, not George’s will. For that
reason, the bequest of the ‘‘entire’’ property to the defen-
dants in article VI, § 2, of the will would be subject to
the 99 year lease even if the will contained no reference
to that lease.
Lastly, to the extent that any question exists as to
the proper interpretation of the bequest of the property
to the defendants, we note that there is no dispute
as to the testator’s intent. As the court found in its
memorandum of decision, George intended to make his
devise of the entire property to the defendants subject
to the 99 year lease. The defendants do not argue other-
wise in this appeal. Rather, they submit that it is inher-
ently inequitable to permit George to bind them as prop-
erty owners to a lease for which they had no opportunity
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to agree. Yet the same could be said of the food stand
lease, which too was executed prior to George’s death
and binds the defendants as successor lessors until
April 22, 2050. Moreover, that contention rings hollow
in light the defendants’ concession at oral argument
that, had the term of the 99 year lease commenced
prior to George’s death, they would not be maintaining
the present appeal. The scope of the bequest to the
defendants remained at all times the prerogative of
George, who plainly intended to subject that gift to the
99 year lease. As with any other inherited property,
such as silver or china; see Burnham v. Hayford, 141
Conn. 96, 98, 104 A.2d 217 (1954); the defendants remain
free to dispose of the property in the future.
In sum, we conclude that the 99 year lease is contrac-
tual, rather than testamentary, in nature and conferred
rights in the plaintiffs prior to the death of the owner-
lessor. For that reason, the court properly concluded
that the 99 year lease was valid despite the fact that
its lease term commenced upon George’s death.
The judgment is affirmed.
In this opinion the other judges concurred.