Big thanks to Attorney Lisa Bellanti for calling to our attention the appeal she and Nadine Catalfimo have before the NH Supreme Court of the Probate Court’s Order in Estate of Marie G. Dow in which the Court held that a will’s choice of MA law requires that MA law governs a child’s pretermitted heir claim. From the will provision quoted by the court (it did not decide the issue), the claimant appears to have a meritorious claim under NH law. The critical issue is whether NH or MA law governs.
In holding that the will’s choice of law governs, the Court relied on Royce v. Estate of Denby in which the NH Supreme Court held that the pretermitted heir claim in that case was governed by New York law per the will’s choice of law. In Royce, the Court cited equitable considerations not addressed in Dow, namely, the testatrix in Royce had no opportunity to change her will after relocating to NH: the testatrix “was mentally incapacitated from the time she was permanently moved to New Hampshire and had no effective opportunity to change her will [and] [i]t would be inequitable for this court to defeat the testatrix’s intent to have New York law apply on the basis of a New Hampshire rule to which she had no chance to respond.” Dow presents the question whether such equitable considerations must be present for foreign law chosen by the testator to govern a NH pretermitted heir claim.
(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at alexandra.cote@mclane.com.)