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In re Estate of Wilber

Supreme Court of New Hampshire

August 21, 2013

In re Estate of Richard B. Wilber

Argued April 11, 2013.

Page 1097

9th Circuit -- Nashua Probate Division.

[165 N.H. 248] Ransmeier & Spellman, P.C., of Concord ( Frank E. Kenison and John T. Alexander on the brief, and Mr. Alexander orally), for the respondent.

Upton & Hatfield, LLP, of Concord ( Douglas S. Hatfield and Matthew R. Serge on the brief, and Mr. Hatfield orally), for the petitioner.

HICKS, J. DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

OPINION

Page 1098

Hicks, J.

The petitioner, Estate of Richard Wilber (Richard's Estate), appeals a decision of the 9th Circuit -- Nashua Probate Division ( O'Neill, J.) allowing the respondent, Estate of Josephine Wilber (Josephine's Estate), to claim a statutory share under RSA 560:10 (2007) of certain real property located in Hillsborough. We reverse and remand.

I

The following facts are undisputed. Richard and Josephine Wilber were married for approximately fifty years. Richard owned property in both Maryland and New Hampshire. On March 19, 2007, the Wilbers executed a contract (the Agreement) in which Richard agreed to transfer his Maryland property to Josephine and she, in turn, agreed to allow him to live in the house on the property until his death or until he no longer wished to live there. Richard also agreed not to make any claims on the Maryland property during his life or " after [his] death," and Josephine, in return, agreed not to make any claims on Richard's New Hampshire property (the Property) during her life or " after [her] death."

Richard died testate on October 18, 2010, omitting Josephine from his will. The executor of Richard's estate in Maryland, his state of domicile, filed ancillary administration in the 9th Circuit -- Nashua Probate Division to distribute property he owned in New Hampshire. In December 2010, Josephine filed a waiver by surviving spouse in the probate division, seeking a statutory share of the Property under RSA 560:10, which allows a surviving spouse to waive the decedent spouse's will and take a specified portion of the estate. Josephine died on March 12, 2011, leaving the executor of her estate, Rosemary Heyne, to pursue her claim. Richard's Estate opposed the waiver on several grounds, among them: (1) Josephine had already petitioned the Orphans' Court for Prince George's County, Maryland for a statutory share of his estate, and had been denied for untimeliness; and (2) Josephine waived her right to pursue a statutory share by promising in the Agreement to make no claims on the Property during her life or after death. The probate division disagreed on both grounds, ruling that it had ancillary jurisdiction over the Property and that the Agreement did not satisfy " the necessary criteria to be a valid and enforceable postnuptial agreement." This appeal followed.

[165 N.H. 249] II

Richard's Estate argues that the trial court erred in failing to enforce the Property ...


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