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Bar News - May 17, 2013

Morning Mail: Weighing in on Tamposi

Far be it from me to critique a probate expert such as Marla Matthews, but having represented the respondents in the Tamposi matter, I feel a few caveats are necessary about that holding and Marla’s explication of it. (Editor’s note: Matthews’ article on the Tamposi case appeared in the March 22, 2013 issue of NH Bar News.)

First, the Tamposi facts are far from "fairly straightforward" and need to be fully understood. Judge Cassavechia, in an exhaustive 54-page opinion, set out a series of factual premises that serve as the underpinning for the decision, which, after a six-week trial, he summarized with clarity and insight.

Specifically, Judge Cassavechia found, and the Supreme Court upheld, that, inter alia, (1) the litigation was brought principally by one disgruntled beneficiary who had rebelled for over a decade against her father’s carefully crafted estate plan; (2) the litigation was brought by the Trustee to appease that beneficiary; (3) that the parties had entered into a 2005 Settlement Agreement which modified various terms of the trust and the parties’ relationships; (4) that before the ink was dry on the 2005 Settlement Agreement, the same disgruntled beneficiary launched into another challenge; (5) that challenge was joined by Trustee Attorney Julie Shelton, a long time friend of the beneficiary; (6) that Trustee Shelton is a construction lawyer from Chicago with no probate experience; (7) that Trustee Shelton took on the project without due diligence; (8) that the remedy sought would substantially and negatively impact on the other beneficiaries; (9) that the remedy sought was clearly against the settlor’s intent; and (10) that no petition for instructions was filed which could have resolved the legal issues raised had that been the true intent of the challenge. (For a full recital of the facts, see, Civil section, 08/18/2010, Julie Shelton & a.v. Samuel A. Tamposi, Jr & a. (316-2007-EQ-2109)).

After more than 30 dispositions, there was a factually rich record on which the judge made his findings and conclusions of bad faith. Hence, the case should be read with care toward the factual finding, as the facts really preordained the result and dictate the future conduct of which practitioners should be aware, and should avoid.

Second, I think it is important to note that the entire Supreme Court recused itself. The substitute Supreme Court consisted of four retired Superior Court Judges, one of whom stepped down after oral argument, having reached age 70. The result is a per curiam opinion of a substitute New Hampshire Supreme Court.

Finally, the book is not ready to be sent to the printer, and the matter is now back before Judge Cassavechia on the issue of the amount and appropriateness of attorneys’ fees (millions are at issue), and the Court-ordered surcharge on attorney. There are also proceedings in Boston, where the disgruntled beneficiary petitioner has claimed malpractice against her trial counsel, her trustee, and others.

Robert A. Stein

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