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New Hampshire Supreme Court Reverses Probate Court Finding That Son Was Not Pretermitted Heir

In In re Estate of Marie G. Dow, the New Hampshire Supreme Court analyzed the pretermitted heir statute and case law to determine that decedent’s son was a pretermitted heir and entitled to his intestate share of his mother’s estate.

The Facts Of In re Estate of Marie G. Dow

Marie Dow executed her last will and testament on June 30, 2014.  At the time, Marie was living in Massachusetts.  Marie died in November of 2018, while living in New Hampshire.  Marie was survived by her son Christopher Dow and ex-daughter in law Leslie Dow, and another son and her granddaughter.  Marie’s will provided as follows:

[ARTICLE] SECOND: All the rest, residue and remainder of my estate, real, personal and mixed, of which I may die, seized and possess, or to which I may be entitled at the time of my demise, wheresoever the same may be found (hereinafter called my “residuary estate”), I give, devise and bequeath to my daughter-inlaw, LESLIE DOW . . . . If LESLIE DOW fails to survive me, then I hereby give, devise and bequeath my estate to my granddaughter . . . . . . . .

[ARTICLE] EIGHTH: I have intentionally omitted to mention, or to devise or bequeath or give anything of which I may die seized and possessed, or to which I may be in any way entitled at the time of my decease, to any person or persons other than those mentioned in this my last Will and Testament.

[ARTICLE] NINTH: My estate is to be administered and enforced according to the laws of the Commonwealth of Massachusetts.

After Marie died, her attorney filed her will in Massachusetts but did not seek to open probate.  Christopher Dow (Marie’s son) eventually filed a petition for estate administration in New Hampshire.  The probate court declined to act on the petition without the original will, and a dispute began over the venue of the probate estate – Massachusetts or New Hampshire.  After hearing, the probate was eventually opened in New Hampshire, and the testator’s attorney was order to file the original will in New Hampshire.

Christopher filed a motion to determine that he was a pretermitted heir under Marie’s will.  Leslie, Marie’s ex-daughter in law and beneficiary of the estate under the will, objected to Christopher’s petition.

The probate division found that the testator’s will “fails to specifically name her son, Christopher, in any way.” It determined that due to, inter alia, the language of Articles Eighth and Ninth of the will, Massachusetts’ pretermitted heir statute should apply to the will, and that under Massachusetts law, Christopher was not a pretermitted heir.

New Hampshire Probate Law Applies Despite Choice Of Law Provision Of Will If Will Disposes Only Of Personal Property

First, the parties disputed the application of Massachusetts law to the pretermitted heir dispute.  Christopher argued that New Hampshire’s RSA 551:10 should apply because, despite the choice of law language in the will, because Marie was domiciled in New Hampshire at the time of her death and her estate consists of only personal property.

The New Hampshire Supreme Court agreed that New Hamsphire probate law should apply, stating:

Under New Hampshire law, personal property of a testator generally passes according to the law of the state of domicile…Because the testator’s will disposes of only personal property, i.e., “movables,” the nature of the interests in this property will be determined by the laws of New Hampshire — where she was domiciled at death.

After a detailed discussion of why Leslie’s counter-arguments were inapplicable, the New Hampshire Supreme Court held that New Hampshire’s pretermitted heir statute applied to Marie’s will because she was a domiciliary of New Hampshire at the time of her death and her will disposed only of personal property.

New Hampshire’s Pretermitted Heir Statute

New Hampshire’s pretermitted heir statute, RSA 551:10, provides:

Every child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.

What Is the Purpose of New Hampshire’s Pretermitted Heir Statute?

The purpose of New Hampshire’s pretermitted heir statute is “to prevent a mistake or unintended failure by the testator to remember the natural object of his or her bounty.”

When a child is not designated as a devisee or legatee in the testator’s will, the naming of or reference to the child in the will establishes a conclusive inference that the testator’s failure to provide for the child was not the result of mistake or forgetfulness.  The statute is therefore “not a limitation on the power to make testamentary dispositions but rather is an attempt to effectuate a testator’s presumed intent. It prevents forgetfulness, not disinheritance.”

When Is Someone a Pretermitted Heir Under New Hampshire Law?

To be deemed a pretermitted heir in New Hampshire, the child must not be named in the will, referred to in the will, or be a devisee or legatee under the will.  “Named or referred to” requires clear evidence that the testator actually named or distinctly referred to the heir personally, to show that the testator had the heir in mind.

Therefore, for Christopher NOT to be a pretermitted heir, he must have been referred to in his mother’s will.  The New Hampshire Supreme Court concluded that he was not, stating:

We understand the respondent to argue that Christopher Dow was sufficiently “referred to” in the will because the respondent herself is referred to as a “daughter-in-law,” which indicates that she “was married to a child of Marie Dow . . . and that Marie did not intend for anyone other than Leslie Dow or [the testator’s granddaughter] to take anything under her will.” This is insufficient to demonstrate that the omission of Christopher Dow from the will was intentional.  See RSA 551:10; Boucher, 85 N.H. at 516 (requiring “clear evidence” (quotation omitted)).

An indirect reference to the child is sufficient where the reference demonstrates that the deceased had the child in mind when she made the will, see In re Estate of Osgood, 122 N.H. 961, 964 (1982); Boucher, 85 N.H. at 516; however, “[t]he naming of one person, however closely related to another, without more, is no reference to that other,” Gage v. Gage, 29 N.H. 533, 543 (1854); accord In re Estate of Osgood, 122 N.H. at 964 (“It is well established that there must be a reference in the will to the child himself. It is not sufficient to infer that the child was not forgotten because a sibling or other relative was remembered in the will.”). Here, although the will describes the respondent as a “daughter-in-law,” and identifies a “granddaughter,” there is nothing more that “distinctly refer[s]” to Christopher Dow “personally, so as to show that [Marie G. Dow] had [him] in [her] mind.” Gage, 29 N.H. at 542.

Although the decedent referred to Leslie as her daughter-in-law, there is no other reference to or naming of the child to whom Leslie was married (Christopher).  The reference to daughter in law is simply insufficient to identify Christopher.

The New Hampshire Supreme Court also rejected the argument that reference to a class that may include children was sufficient to make Christopher not pretermitted, citing to In re Estate of MacKay, 121 N.H. 682, 684-685 (1981):

Although we have suggested that a [reference] to a class circumscribed by the terms “children” or “issue” may be a sufficient recognition of a child of the testator to exclude the child from the ambit of RSA 551:10, a [reference] to a class which may include children, such as “heirs-at-law” or “next-of-kin” is not sufficient recognition

Therefore, the language in Marie’s will that the testator had “intentionally omitted to mention, or to devise or bequeath or give anything . . . to any person or persons other than those mentioned in this my last Will and Testament,” was not a sufficient indirect reference to Christopher to demonstrate that she had him in mind when drafting her will.

The Legislative Directive Of New Hampshire’s Pretermitted Heir Statute Will Be Upheld Even If The Result Defeats Testator’s Intent

The New Hampshire Supreme Court noted that they have repeatedly held that the clear legislative directive of RSA 551:10 will be upheld even if the result is to defeat a testator’s intent.

Here, Christopher was not named or referred to in his mother’s will, and was not a devisee or legatee of the will.  As a matter of law, Christopher was a pretermitted heir under New Hampshire law and entitled to his intestate share of Marie Dow’s estate.

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