Bar News - December 13, 2013
Court to Launch Trust Docket
By: Kristen Senz
To address concerns related to New Hampshire’s trust-friendly legal environment and limited judicial resources on the probate court, the NH Circuit Court next month is launching a new statewide court docket dedicated to hearing complex trust and estate cases.
Judge Gary Cassavechia has signed on as the judge who will help create and manage the trust docket starting Jan. 1. Cassavechia, who presided over the Tamposi case and many other complex trust and estate matters, has been a member of the probate bench since January 1981, serving as the Strafford County Probate judge, now the 7th Circuit. He has also regularly presided in Hillsborough County, now the 9th Circuit.
Beginning on Jan. 1, Judge Cassavechia will be relieved of the routine probate division duties in the 7th and 9th circuits and will focus his time on those cases which are specially assigned to the trust docket, according to Circuit Court Deputy Administrative Judge David King.
Cases on the special docket will be equity matters in which significant assets are at stake, which are complex such that significant discovery issues are likely to arise, and which are more likely than not to result in a multi-day trial. In addition to cases involving RSA Ch. 564-B, consideration will be given to complex estates that involve disputes over significant assets, will contests, and cases that allege misuse of powers of attorneys where significant assets are at issue.
Cases for inclusion on the trust docket will be screened by the trial judge where the case is filed. A request for inclusion on the trust docket may be made by the parties in the case, or by the judge, sua sponte, to the administrative judge of the Circuit Court. If the case appears to meet the criteria for the trust docket, the administrative judge will confer with Cassavechia to determine whether the case appears sufficiently complex to qualify for the specialized docket, and whether there is room on the docket to timely accommodate the case.
Cassavechia will have the flexibility to schedule hearings in a location convenient to the court, both for pre-trial matters and trial, taking into account the travel distances for the parties and counsel, as well as the availability of a court facility that is appropriate for the needs of the case. In the discretion of the judge, certain pretrial matters may be conducted by teleconference or video.
Trials on the trust docket will be held on consecutive days, without interruption, except in exceptional circumstances, and each case will be assigned to a single judicial officer.
“I think that is what the bar really wants and should be able to expect,” King said. “One judge, one case. That’s the theory.”
Mediators assigned to the probate division will still provide mediation services to cases assigned to the trust docket. Parties will be free to engage in private mediation. Mediation will not be mandatory in cases assigned to the trust docket, but will be encouraged by the judge and may be ordered at his discretion.
King said judicial staffing and timing have finally aligned in a way that makes a dedicated trust docket possible. “I think it’s the right thing to do, and it makes sense for moving these more complex cases,” he said.
In 2004, New Hampshire adopted the Uniform Trust Code (RSA 564-B), which has now been amended several times. The latest legislative changes (the Trust Modernization Act) have been promoted as making New Hampshire the most trust-friendly state in the country – “the Delaware of Trusts.”
During this same period of time, the probate bench has lost several judges with extensive probate experience. The trust and estate bar, trust institutions, and several legislators have expressed concern that the probate division of the Circuit Court may not be able to keep up with the complex trust litigation that has started, and will continue to increase, as a result of the changes in the trust laws.
Recognizing these issues, the Circuit Court is creating the trust docket to handle complex cases, such as Tamposi. Now in the post-appeal phase, the Tamposi case went on for several years and resulted in a 27-day trial and an appeal to the NH Supreme Court.
Unlike the NH Superior Business and Commercial Dispute Docket, the trust docket is not being created by legislation and will be managed internally by the Circuit Court. Both new and ongoing cases will begin to populate the trust docket on Jan. 1, King said.