Probate Law:

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

6th Circuit Court – Concord Probate Division, No. 2017-0532, September 7, 2018


  • Whether the pretermitted heir statute was incorporated as a rule of construction for trusts.

The court ruled that the pretermitted heir statute was not incorporated as a rule of construction for trusts and held that a later-enacted statute providing that rules of construction for wills also apply to trusts, did not incorporate New Hampshire’s pretermitted heir statute.

Petitioners were the grandchildren of the decedent who had excluded Petitioner’s father both from her will and the subject trust. Petitioners argued that they were pretermitted heirs pursuant to RSA 564-B:1-112 because it incorporated RSA 551:10, New Hampshire’s pretermitted heir statute, as a rule of construction applicable to trusts.

RSA 551:10 provides that a child born after the testator, and a child or issue of a child not named or referred to in the testator’s will, is entitled to the same portion of the estate as he or she would be if the deceased were intestate.

The court focused on the language in RSA 551:10 as clearly applicable to the context of a will rather than a trust. Relying in part on its prior decision in Robbins v. Johnson, which held that RSA 551:10 did not apply to a trust, the Court again declined to apply to RSA 551:10 to trusts. In considering the impact of the later-enacted RSA 564-B:1-112, which provides that rules of construction applying to the interpretation of and disposition of property by will also apply to trusts. The court concluded that RSA 551:10 is a rule of law, not a rule of construction in that the pretermitted heir statute is conclusive and does not provide for guidance based on circumstances as does a rule of construction.

While the case was pending, the legislature amended 564-B:1-112 to provide specifically that RSA 551:10 does not apply to any trust.


Pamela J. Newkirk, Barradale, O’Connell, Newkirk & Dwyer, Bedford, for petitioners; Ralph F. Holmes and Jacqueline A. Botchman, McLane Middleton, Manchester, for respondent, Glenn A. Perlow and Todd D. Mayo, NH Trust Council, Manchester, as amicus curiae.