Two Perspecta Trust attorneys prepared a friend of the court (amicus) brief which was filed on behalf of the New Hampshire Trust Council in the New Hampshire Supreme Court, in the matter of In re Teresa E. Craig Living Trust, Docket No. 2017-0532. 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 statute has applied to trusts since 2004, the result would be tremendously disruptive. Trust practitioners have simply never believed this to be the case. As a result, countless trusts have been drafted since that time without any consideration that children not provided for in these trusts might claim a statutory right to an intestate share when the trust settlor dies. This would cast doubt on the operation of these trusts, and undoubtedly lead to legal challenges from would-be beneficiaries.
A bill has been introduced in the New Hampshire Senate (SB 311) which would clarify that the legislature never intended to apply the pretermitted heir statute to trusts. Notwithstanding this, the New Hampshire Supreme Court has declined to stay its review in Craig pending the consideration of SB 311.
Read the full brief here.