Bar News - January 18, 2017
Section Connection: Trusts and Estates Holiday Social Draws Capacity Crowd
By: Timothy McKernan
The NH Bar Association Trusts and Estate Section held its annual holiday social Dec. 14 at the Common Man in Concord. Judges David King and Gary Cassavechia (retired), and Circuit Court staff attorney Beth Kissinger, reprised their annual Probate Court update before a capacity crowd.
Linda Garey, section vice chair, opened the panel. Kissinger introduced the judges and described her experience in the New Hampshire court system and her involvement with the transformation of the Probate Division and Trust Docket.
King began the presentations with an overview of the immediate past and future of the Probate Division and Trust Docket, which he characterized as the “fluff,” leaving the “substance” to Cassavechia, who would discuss the intricacies of in terrorem clauses as applied to trusts.
King said the system faces several challenges. First, the shortage of Circuit Court judges. Second, the physical facilities which are being moved to a central location in Concord. Third, the transition to the NH e-Court system. While changes to New Hampshire trust law have made the state very attractive to substantial trusts, state funding has not followed suit to meet the demands of complex, trust litigation that demands considerably more court time than has been budgeted.
Kissinger introduced in terrorem clauses as they relate to trusts. Cassavechia noted that this was a prominent issue in one of the more complicated cases before him. Kissinger detailed the legal application of these clauses in state law.
The burden of proof is on the challenger to meet the safe harbor statute and avoid being cut out as a beneficiary. This is difficult, as trusts are interpreted consistent with the settlor’s intent, so the inquiry is heavily fact-dependent and dependent on the terms of the trust in question.
The statute permits challenges by (1) bringing the question of whether a petition would be considered a challenge before the court, or (2) through a petition for instruction or interpretation. However, a challenge will not be ruled on in advance, so a petitioner must be careful when drafting one of the above motions. Cassavechia pointed to the tension between full expression of the clause and the settlor’s intent. In New Hampshire, the court also considers the need for open and complete discovery, which may allow for some limited discovery to allow the clause to be applied properly. Thus, the petitioner must be careful when drafting a petition for instruction.
The holiday social allowed section members to reconnect with each other while learning about some important aspects of practice. Members also enjoyed an appetizer buffet and cash bar.
Timothy McKernan is a solo practitioner and works as research director for Granite State Progress, a New Hampshire advocacy organization. He serves as clerk of the NHBA Trusts and Estates Section.