The Justices of the New Hampshire Supreme Court asked lots of penetrating questions in the oral argument (video link) in In re Estate of Mesiti, an interlocutory appeal presenting an important standing issue of first impression, namely, whether a child can contest a parent’s will without an allegation that he will benefit if he wins.
As discussed in a prior post, the contestant in Mesiti claims that his father’s will was procured by undue influence. Representing the executrix, we argue that the contestant lacks standing to contest the will because he has no stake in the outcome. The contestant is not a beneficiary of the will being probated or its predecessors that span twenty-one years and, therefore, will be a beneficiary of the probate estate only if all wills are invalid on some ground, which he importantly never alleged. All the wills pour-over into the same trust and it was an amendment of that trust that really caused the contestant’s disinheritance. We represent both the executrix and the trustee and acknowledge that the son has standing and every right to contest the amendment of the trust, which he in fact is pursuing in a separate action. Our position is that the trust contest provides him a complete remedy and the Court should dismiss the will contest under standing principles already articulated in NH probate cases. The son argues that the Court should adopt the reasoning of some cases of other states, a position that the Probate Court found persuasive before certifying the issue for interlocutory appeal.
(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.)
