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 Holds Will’s Choice of Law Provision Does Not Control Pretermitted Heir Claim

Congratulations to Nadine Catalfimo and Lisa Bellanti for their win in In re Estate of Marie G. Dow in which the Court held that NH law governs a pretermitted heir claim, notwithstanding that the will recites that the estate is “to be administered and enforced according to the laws of the Commonwealth of Massachusetts.”  The decision provides important guidance relative to the enforceability of a will’s choice of law provision and is a reminder that, when a client relocates to a new state, his or her will should be updated or reviewed by local counsel.

In this case, the decedent lived and signed her will in MA.  She later moved to NH and did not sign a new will, although she was capacitated to do so.  At the time of her death, she owned only personal property, having sold her MA real estate.  The will recites that the decedent intended to benefit only the persons named therein, but fails to identify by name or class her disinherited son (“Son”) as required in NH to avoid his having pretermission status.

Perhaps recognizing that the Son’s claim might turn on the situs of probate, the principal legatee sought to open probate in Massachusetts and the Son sought administration in New Hampshire with the Son prevailing.

As I discussed in a prior post, the Probate Court held that the will’s choice of law provision must be honored and that the Son’s pretermitted heir claim fails under MA law. 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 present 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.”  Whether to extend the holding in Royce beyond its narrow facts was a key issue on appeal.

In a carefully reasoned and thorough opinion, the NH Supreme Court held that the NH pretermitted heir statute controls, notwithstanding the choice of law provision in the will.  The Court distinguished Royce as being limited to its facts, namely, the testatrix was unable to revise her will upon relocation to NH.  The Court also distinguished and declined to follow cases in which the Court has upheld choice of law provisions concerning testamentary trusts.   The decision helps clarify the extent to which will choice of law provisions will be honored and is a reminder that, when a client relocates to a new state, his or her will should be updated or reviewed by local counsel.

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