Why Probate?



Bob Capazzo

It may be the highest-stakes operation in town. For starters, it oversees child custody issues and the rights of the mentally disabled and frail elderly. The majority of its business, however, is adjudicating wills that probably add up to more per year than the GNP of most countries. So why wasn’t it until late 2006 that the press discovered Greenwich’s probate court?

On the docket that day in late December was the estate of arguably the town’s most famous murder victim since Martha Moxley: Andrew Kissel, whose bound-and-stabbed body was found shortly before he was to go to prison for fraud. Among the many unanswered questions Kissel left behind, including whether he was, in fact, murdered or the victim of a bizarre suicide, was what would become of his widow and children with his financial affairs in such a mess. That decision lay in the hands of Judge David Hopper. Naturally the press was interested.

Settling estates is the business of Greenwich’s probate court, and, by statute, its matters are open to the public. Usually, only the family reads a particular probate court file, or shows up at a hearing, but nothing about Andrew Kissel was ordinary. Several newspapers, including Greenwich Time and the New York Times, sent representatives to the first hearing. As Hopper saw it, he had no choice but to let them in.

At a later hearing, discussion centered on what kind of allowance the widow and her children could get before creditors swooped in. Seated at his desk planted in front of a large rectangular table, Judge Hopper listened to the widow relate the circumstances of her crushing need. Behind her, reporters scribbled furiously. Then a clerk noticed something: One of the reporters had his cellphone out.

“He could have been checking incoming calls, but it was also possible that the phone was transmitting the hearing back to the newsroom,” Judge Hopper recalls. “Who knows? But I couldn’t take that chance.”

Hopper stopped the hearing and told the reporter to put his phone away. With that, the widow started.

“She didn’t know there were reporters in the room,” he says. “When I explained it to her, she got very upset. I had to use my discretion. In the end, the reporters waited outside, and I briefed them at the end of the hearing as to what took place. It’s public information, but this was a matter of letting her have some privacy during an emotional time.”

Whether this posture will eventually lead Hopper into conflict with the state Freedom of Information Commission is an issue for another day; for the moment at least, the tradition for respecting the rights of the bereaved won out. This year, Hopper’s docket has gotten even more press scrutiny from its handling of the estate of George Smith, the Greenwich newlywed who disappeared from an ocean liner off the coast of Greece in 2005. At the beginning of 2007, Smith’s widow worked out a settlement with the cruise ship’s owner but it is contingent upon Hopper’s approval that it adequately address the concerns of Smith’s parents, also a party to the estate’s final settlement.

“Smith didn’t have a will, so I appointed his wife as administrator,” Hopper explains. “Anything she does has to get my approval.”

Forget the question of open cellphones; this time, television cameras have been set up around the probate court offices in Town Hall. Can Hopper keep them out of the courtroom? He admits there is no precedent for this sort of thing, either in Greenwich or apparently anywhere else in the state.

Hopper is no stranger to such drama. Growing up the son of Cameron Hopper, Greenwich’s probate court judge from 1967 to 1991, he still remembers boyhood evenings when strangers called demanding to speak to his father, complaining, for instance, that a court-appointed conservator was stealing money, not realizing or caring that such ex parte discussions are against the law, let alone somewhat futile when addressed to an eleven-year-old.

“Sometimes they would call back five minutes later and say the same thing,” he says. “These are the unfortunate ‘mental diseases’ that would occur. Sometimes they were rational and just wanted to talk to a judge, not understanding they can’t talk to him without having a hearing. That’s understandable for a layperson.”

The mysteries of the Connecticut probate court system are legion and sometimes controversial. Greenwich’s probate court is one of 123 in the state, each judgeship filled by an elected official who may or may not be a lawyer and whose only qualification mandated by law is to undertake fifteen hours of probate-law study a year. A probate court administrator in Hartford hears complaints against individual judges but has no disciplinary power under the state’s firm tradition of home rule.

The system is known for its share of scandal. Up north, they still talk about a judge from Hartford, James Kinsella, who was discovered in the early 1980s to have steered control of millions in assets to cronies. He escaped impeachment by resigning. When Norman F. Dacey first published his book How to Avoid Probate! in 1965, which recommends such testamentary alternatives as joint ownership among spouses and “living trusts,” he made ample mention of Connecticut in explaining how the probate system literally subsisted on plunder from widows and orphans.

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