On December 5, 2018, NH Probate Court Judge David King, Retired Judge and Judicial Referee Gary Cassavechia, and Court Counsel Beth Kissinger gave a highly informative and interesting presentation to the T&E bar on significant probate court decisions of the past year and some pending appeals. The comments were strictly factual and, because Probate Court Orders are not published, are extraordinarily valuable to practitioners. Copies of the decisions have been added to the Orders in our Pleading Bank. Like so much of the work product of this Court, the scholarship of these decisions is impressive. Briefly, the cases include:
Swenson v. Silk et al.
In this decision, as discussed by AJ Schweitzer in a recent post, the NH Trust Docket declined to recognize the tort claim of intentional interference with inheritance, citing with favor the decisions of other courts and commentary that the claim should only be actionable in instances where the claimant has no adequate remedy at probate, which was not the case in Swenson.
In re Alice Stedman 1989 Trust 2013 Restatement
This case has been a long litigation saga involving most recently multiple Probate Court orders on the issue of counsel fee awards, which the Supreme Court affirmed on August 15, 2018.
In re Estate of Amy Marjorie Patnaude
In Patnaude, the Trust Docket’s decision and the Supreme Court’s unpublished affirmance, further clarify the standard of proof issues in undue influence cases. In these cases, the alleged undue influencer almost always was in a confidential or fiduciary relationship with the settlor and, under NH law, therefore, has the burden of proving the absence of undue influence. As I referenced in my discussion of the Trust Docket’s Bonnano decision, some of the trial court decisions raised the question of whether an alleged undue influencer’s burden on this issue should be measured by the clear and convincing evidence standard, rather than the traditional lower standard of preponderance of the evidence. The Patnaude Trust Docket decision and Supreme Court Order and the Trust Docket Bonnano Order appear to settle that, when the burden of proof shifts to the alleged undue influencer, the quantum of proof is preponderance of the evidence.
Trust of Mary Baker Eddy
This is an important Order, now on appeal, in which the Trust Docket ruled that the Second Church of Christ, Scientist, Melbourne (Australia) does not have standing as a party to be heard relative to issues before the Court concerning the administration of two charitable testamentary trusts established under the last will and testament of Mary Baker Eddy, the founder of the Christian Scientists.
Absent special circumstances, only the Director of Charitable Trust has standing to be heard relative to the administration of a NH charitable trust. Eddy presents the issue of whether the Second Church meets the requirements for standing. The Court analyzed the issue under the “special interest doctrine” and applied a five-part test found in Blasko on Standing. The Court concluded that Second Church did not meet its burden on this issue and lacked standing. Given the significant lack of NH authority on the issue of charitable standing, the Court’s Order is important reading for practitioners in this area.
In re Beatrice C. Skillen 1995 Trust Agreement
In Skillen, the claimant in order to avoid application of the statute of repose of Section 406 of the NH Trust Code makes the creative argument that the phrase “revocable at the settlor’s death” in the statute means revocable after death as opposed to revocable until death. Consistent with what I believe to be the general understanding of the statute, the Court ruled in favor of respondent and dismissed the claim. An appeal is pending.
(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.)
