A surviving spouse generally has six months from the date of appointment of the administrator to waive the provisions of the Will and take instead his/her elective share of one-third of the probate estate. Does that six-month deadline begin to run anew if the current Will is determined to be invalid and the prior Will becomes controlling? Surprisingly, no decision has been found addressing this issue.
In a recent Order, the NH Probate Court (Weaver, J.) resolved this discrepancy by holding that the pendency of a Will contest is “good cause” under RSA 560:14 to extend the six-month limitations period. Our client, the surviving spouse and Executrix, benefits under the current estate plan, but not the prior one. On her behalf, we argued that she cannot reasonably be asked to choose between her statutory share and a Will that is not yet and may never be controlling. The contestant argued essentially that she should conditionally elect against the prior Will so that the six month period would not need to start anew in the event that it becomes controlling following a successful challenge of the current plan. Ruling in our favor with a common sense analysis, the Court resolved this discrepancy in what must be a recurring problem in cases of this type.
(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at email@example.com.)