Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.

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NH Supreme Court Affirms Trust Statute of Repose Decision

Congratulations to Barry Schuster on his win before the NH Supreme Court in In re Beatrice C. Skillen 1995 Trust Agreement in which the contestant of a trust advanced a very creative (unsuccessful) argument about the interpretation of the statute of repose of RSA 564-B:4-406.  

In Skillen, petitioner alleged that certain trust amendments were invalid on grounds that they had been procured by fraud and undue influence.  Petitioner brought her lawsuit more than three years after settlor’s death and less than three years after she had received notice of the trust required by RSA 564-B:8-813(c)(3) (the “Trust Notice”).  The trustee moved to dismiss on grounds that the petition was time-barred because it was not filed within three years of settlor’s death.  Petitioner argued that her claim was timely because it was filed within three years of the Trust Notice.

RSA 564-B:4-406 provides:

A person may commence a judicial proceeding to contest the validity of a trust within the earlier of:
     (1) in the case of a trust that was revocable at the settlor’s death, 3 years after the settlor’s death; [or]
     (2) in the case of an irrevocable trust, including a formerly revocable trust that has become irrevocable, 3 years after the trustee sent to the beneficiary a notice described in RSA 564-B:8-813(c)(3); 

Petitioner argued that the trust was not “revocable at the settlor’s death” within the meaning of section 1 of the statute above because settlor could not exercise her revocation power when dead.  She argued that the phrase “at… death” could not be construed to mean “until death.”

In a closely reasoned decision, previously discussed, the Trust Docket examined the statute’s purpose, language, and history as well as scholarly commentary and held that the limitations period running from settlor’s death indeed applied, consistent with the general understanding of practitioners. As the Court noted in a footnote, “when one talks of being ‘at’ the door of a house, it does not indicate being inside the house.”  The Trust Docket denied petitioner’s motion to reconsider.

On appeal, the Supreme Court affirmed in a non-precendential order:

The plain language of RSA 564-B:4-406(b)(1) provides that, ‘in the case of a trust that was revocable at the settlor’s death,’ a person ‘may commence a judicial proceeding to contest the validity’ of the trust within ‘3 years after the settlor’s death.’ There is no dispute that the trust in this case was revocable prior to the settlor’s death, and that the petitioner did not file her petition until three years and two months after the settlor’s death.

As the appealing party, the petitioner has the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). We have reviewed the trial court’s well-reasoned order, and the petitioner’s challenges to it, including her argument that RSA 564-B:4-406(b)(1) does not apply under the circumstances of this case, and we conclude that the petitioner has not demonstrated reversible error. See id.

(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at