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 Decides Will Contest Standing Issue Of First Impression (Link to Order)

In In re Estate of Mesiti, the NH Supreme Court ruled that heir status alone confers standing to contest a will, notwithstanding the existence of multiple prior facially valid wills that do not benefit the heir contestant and which he does not allege are invalid.  Although the Supreme Court decided the question in an order, rather than a formal opinion, which means that per Supreme Court Rule 20 the decision “shall have no precedential value, but… may, nevertheless, be cited or referenced in pleadings or ruling in any court in this state, so long as it is identified as a non-precedential order,” the order is important reading because it decided an issue of first impression likely to recur.

In Mesiti, the son of the testator contests the validity of his father’s will on grounds of undue influence.  As counsel for the executrix, we moved to dismiss, arguing that the son lacks standing in that the outcome of the litigation cannot give him rights in the probate estate as there are multiple facially valid prior wills and all have the same dispositional scheme – they pour into the same trust and do not benefit the son.  In response, the son did not allege that the prior wills were invalid due to incapacity, undue influence, or other grounds and instead, citing foreign law, relied on his status as an heir alone as the basis for standing.  Although we disputed the son’s standing to contest the will, we acknowledge that he has standing to contest in a separate action the iteration of the trust that disinherited him.  The Probate Court (Weaver, J.) ruled that the son has standing to contest the will and certified the issue for interlocutory appeal.

During the pendency of the appeal, the son brought a new action to contest the trust, which we highlighted in our brief and at oral argument as referenced by the Court in the Order.

The Court affirmed the ruling of the Probate Court, stating in part:

[The Executrix] also asserts that [contestant] lacks standing because, even if he were to prevail in his motion, he would not recover from the estate unless the 1991 and 2007 wills are also determined to be invalid…. We conclude that in the context of his motion to have the Contested Will re-examined, [contestant] need not have alleged that the 1991 and 2007 wills were also invalid. Moreover, we do not find [his] interest to be too remote merely because he may have to contest all three wills before he is entitled to take by intestacy. See In re Estate of Schlenker, 789 N.E.2d 456, 458 (Ill. App. Ct. 2003). “Until all will contests are decided, it cannot be said that [he] is not an interested party.” Id. at 458-59. In his motion, [contestant] had to allege only that the Contested Will was invalid. Cf. id. at 459. Should he succeed, “the laws of intestacy will apply unless and until the estate submits one or more prior wills for probate.” Id. Although judicial economy may be best served if the Contested Will and “all prior wills are considered successively in a single action, we do not intend to direct litigation decisions for the parties.” Id.

Although the decision lacks formal precedential value, it provides helpful guidance as to how the Court will likely address this standing issue in future cases.

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