Carole Gannon, Executor of the Estate of Albert G. Hindle
Issued the following order:
The appellants, Carole Gannon, individually and as executor of the estate of the decedent, Albert G. Hindle, James Hindle, and Todd Ward (family members), appeal an order of the 9th Circuit Court – Nashua Probate Division, following a trial on the merits, ruling that the decedent was not unduly influenced when he made certain inter vivos and testamentary property transfers to the respondent, Ruth Palmer, and that the respondent was not unjustly enriched so as to entitle the family members to a constructive trust. They argue that the evidence compelled contrary rulings. We affirm.
The trial court may impose a constructive trust upon clear and convincing evidence that: (1) a confidential relationship existed between two persons; (2) one of the persons transferred property to the other; and (3) the person receiving the property would be unjustly enriched by retaining it. In re Estate of Cass, 143 N.H. 57, 60 (1998). Unjust enrichment exists if the recipient obtained the property through fraud, duress, undue influence, or the violation of a fiduciary duty. Id. Similarly, the trial court may declare invalid any testamentary transfer induced through undue influence. See Bartis v. Bartis, 107 N.H. 34, 37 (1966); RSA 564-B:4-407 (2007).
Whether undue influence exists is a question of fact. Estate of Cass, 143 N.H. at 61. To constitute undue influence, "[t]he influence that a donee exerts over a donor must amount to force or coercion that alters the donor's will and must be more than the mere influence of affection." Id.; see also Bartis, 107 N.H. at 37. While a properly-executed testamentary document is generally presumed to have been executed in the absence of undue influence, see Albee v. Osgood, 79 N.H. 89, 91 (1918), the beneficiary of a gift who acts in a fiduciary capacity to the donor bears the burden of proving the absence of undue influence, Estate of Cass, 143 N.H. at 61; Archer v. Dow, 126 N.H. 24, 28 (1985).
"The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567-A:4 (2007). We will not overturn the trial court's order unless it is unsupported by the evidence or plainly erroneous as a matter of law, In re Estate of Wilber, 165 N.H. __, __, 75 A.3d 1096, 1100 (2013), mindful that the trial court is in the best position to evaluate the weight and credibility of the evidence, and may accept or reject, in whole or in part, whatever evidence was presented, including expert testimony, In re Guardianship of E.L., 154 N.H. 292, 296 (2006); Cook v. Sullivan, 149 N.H. 774, 780 (2003). Indeed, the trial court is free to reject even uncontested testimony. In re Guardianship of Luong, 157 N.H. 429, 439 (2008). The question on appeal is not whether we would have ruled differently than the trial court, but whether the trial court could reasonably have made its findings based upon the evidence before it. Guardianship of E.L., 154 N.H. at 296.
In this case, the record supports the trial court's findings that: (1) the decedent and respondent lived together for the final three years of the decedent's life; (2) the decedent and respondent had a caring relationship, and the decedent was happy living with the respondent; (3) the family members took no initiative to call or visit the decedent, and in fact did not speak to or see him, for the final two years of his life; (4) the decedent believed the family members had abandoned him, expressed this belief to others, including his estate planning attorney, outside the respondent's presence, and based his decision to change his estate plan upon this belief; (5) the decedent remained mentally alert until the end of his life; and (6) the decedent maintained control over his financial and legal affairs until his death. While the family members may have introduced contrary evidence, it was within the trial court's discretion to disregard it. Guardianship of E.L., 154 N.H. at 296; Guardianship of Luong, 157 N.H. at 439. Upon this record, the trial court's ruling that the respondent did not exert undue influence over the decedent was neither unsupported by the evidence nor plainly erroneous as a matter of law. Estate of Wilber, 165 N.H. at, 75 A.3d at 1100.
Likewise, the trial court's determination that the respondent has not been unjustly enriched is neither unsupported by the evidence nor plainly erroneous. Id. As discussed above, the evidence supports the trial court's finding that the respondent did not obtain the inter vivos and testamentary property distributions through undue influence, and the family members do not otherwise argue that the distributions resulted from fraud, duress, or a breach of fiduciary duty. See Estate of Cass, 143 N.H. at 60. Instead, they argue that it would be unjust to allow the respondent to retain the distributions because their value far exceeded the value of her caretaking services, and because "society . . . is repelled by the idea that the caretaker should acquire all the donor's wealth." We disagree.
Unjust enrichment occurs where it would be unconscionable, under the circumstances, for the recipient of a benefit to retain it. See, e.g., Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659, 669 (2013). The mere receipt of property by the respondent, to the exclusion of the family members, is not unconscionable. See In re Estate of McIntosh, 146 N.H. 474, 479 (2001) ("the mere fact that the respondent received money to which other family members may feel entitled does not constitute unjust enrichment); In re Estate of Lunderville, 119 N.H. 308, 310 (1979) (rejecting unjust enrichment challenge to testator's bequest of all of his estate to neighbors in exchange for their care of him for the last few weeks of his life, reasoning that the testator "was entitled to convey his property to [the neighbors] for little or nothing").
The family members' contention that the trial court failed to place the burden of proof upon the respondent to disprove undue influence is without merit. As the trial court made clear on reconsideration, it "reconsider[ed] . . . the evidence anew in addressing the . . . [reconsideration] motion, " and found that the respondent carried any burden she may have had to prove the absence of undue influence.
Finally, the family members argue that the result in the case violates public policy. Assuming, without deciding, that this issue is preserved, in the absence of any legislative direction to the contrary, we decline to rule that, under the circumstances of this case, awarding the decedent's estate to the respondent is contrary to public policy. See Avery v. N.H. Dep't of Educ., 162 N.H. 604, 609 (2011).
HICKS, LYNN, and BASSETT, JJ., ...