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 [...]
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.
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.
In the Lowy case, the New Hampshire Supreme Court construed the terms of a trust. The court wrote that: "When we construe a trust, the intention of a settlor is paramount, and we determine that intent, whenever possible, from the express terms of the trust itself. Moreover, we reject any construction of trust language that would defeat the clear and expressed intention of a settlor." (Internal citations omitted.) Appeal of Lowy 156 NH. 57 (2007)