The New Hampshire Trust Council has filed a friend of the court (amicus) brief in the New Hampshire Supreme Court. In re Teresa E. Craig Living Trust, Docket No. 2017-0532. Prepared by Todd Mayo and Glenn Perlow of Perspecta Trust, the brief addresses a question certified to the Supreme Court by the New Hampshire Probate Court regarding application of the pretermitted heir statute. The pretermitted heir statute (RSA 551:10) provides children (and their descendants) who were inadvertently omitted from a will with the same share of the estate they would have received had there been no will (an intestate share). In consideration of this statute, wills that are intended to disinherit one of more children are carefully drafted with specific language to avoid any question of inadvertent omission. In Robbins v. Johnson, 147 N.H. 44 (2001), the NH Supreme Court was asked to extend the application of the pretermitted heir statute to trusts, but refused to do so, because on its face the statute applies only to wills, and it did not find “clear indication from the legislature that this is its intention….” In the case currently before the Court, it is again being asked to apply the pretermitted heir statute to trusts. In re Estate of Craig, Case No. 2017-0532. The Plaintiffs in Craig argue that in 2004, three years after Robbins was decided, the legislature clearly indicated its intention that the pretermitted heir statute would also apply to trusts when it adopted the Uniform Trust Code (UTC). This appears to be the first time this argument has been made in a legal proceeding in New Hampshire. As the Trustee in Craig has pointed out, were the Court to hold that the pretermitted heir [...]
The June 2017 Issue of the STEP Journal featured "New Horizons," an article by Todd D. Mayo, which reviews SB 225. If enacted, New Hampshire will be the first state in the US to permit the establishment and domestication of foundations. See the full article (originally appearing in STEP Journal, Volume 25, Issue 5) here.
The New Hampshire Trust Council has filed its first friend of the court (amicus) brief in the New Hampshire Supreme Court, in the matter of Hodges, et al. v. Johnson, et al., Docket No. 2016-0130. Prepared by Todd Mayo and Glenn Perlow of Perspecta Trust, the brief seeks reversal of a ruling by the 7th Circuit Court, Probate Division that voided a series of decantings of an irrevocable trust established in 2004. Three beneficiaries, whose beneficial interests were extinguished as a result of the decantings, complained that the Trustees had failed to duly consider those interests when exercising discretionary powers under the trust to undertake the decantings. Following a trial, the Probate Court agreed. On reviewing the final order, the Trust Council felt that the Trustees had been held to an incorrect standard. It filed the amicus brief in support of the Trustees’ appeal, in order to ensure that “the New Hampshire Trust Code’s provisions are interpreted and applied by the courts accurately and consistent with well-established precedent and the intent of the legislature.” The amicus brief can be read in its entirety here.
This act eliminates the board of trust company incorporation, thereby empowering the bank commissioner to determine whether to approve a trust company's formation. This act is effective July 4, 2013. Text of HB 560
In the Shelton case, the New Hampshire Supreme Court upheld the division of fiduciary duties between trustees and investment directors (in this case, essentially a form of trust advisors), and the court affirmed the application of a no-contest provision against the beneficiary who contested the trust. Text of the court opinion.
This act repeals the interest and dividends tax on nongrantor trusts. The repeal applies to taxable years ending on or after December 31, 2013. Text of SB 326
This act changes the term "nondepository financial institutions" to "nondepository trust companies." The act is effective July 28, 2012. Text of SB 368
This act codifies the enforceability of no-contest provisions, establishes an opt-out provision for filing accounts by trustees of testamentary trusts, rejects the so-called benefit-of-the-beneficiaries rule, and creates limitation periods for claims against trust advisors and trust protectors. Text of SB 50
In the Goodlander case, the New Hampshire Supreme Court explained the limited extent to which a beneficiary's spouse might reach a beneficiary's interest in a trust. The court notably acknowledged that, under New Hampshire's Uniform Trust Code, a beneficiary's interest in a trust is a mere expectancy. Text of the court opinion.
In the Tamposi case, the New Hampshire Probate Court upheld the division of duties between the trustees and the investment directors and enforced a no-contest provision against the beneficiary who contested the trust. Text of the court order.