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In re Teresa E. Craig Living Trust

Supreme Court of New Hampshire

September 7, 2018

IN RE TERESA E. CRAIG LIVING TRUST

          Argued: March 15, 2018

          Barradale, O'Connell, Newkirk & Dwyer, P.A., of Bedford (Pamela J. Newkirk, on the brief and orally), for the petitioners.

          McLane Middleton, Professional Association, of Manchester (Ralph F. Holmes and Jacqueline A. Botchman, on the brief, and Mr. Holmes, orally), for the respondent.

          Glenn A. Perlow and Todd D. Mayo of Hampton, for the New Hampshire Trust Council, as amicus curiae.

          LYNN, C.J.

         The Circuit Court (King, J.) transferred to this court without ruling, see Sup. Ct. R. 9, the question of whether RSA 564-B:1-112 (Supp. 2017) (amended 2018), which addresses rules of construction for trusts, incorporates the pretermitted heir statute, RSA 551:10 (2007), as a rule of construction applicable to trusts. We accepted the transfer, and now answer the question in the negative.

         The pertinent facts, which are undisputed, are as follows. Teresa E. Craig (decedent) passed away in Bow on July 10, 2016. She had two sons, Michael Grasso and Sebastian Grasso. Michael predeceased the decedent in 2007. Michael had two children, Andrew Grasso and Mikayla Grasso, who are the petitioners here.

         The decedent created the "Teresa E. Craig Living Trust" in September 1999, which was amended and restated in August 2012 (the Trust). Daniel Toland, as trustee of the Trust, is the respondent. In 2012, the decedent executed a will. Sebastian is the executor of the decedent's will.

         Neither the petitioners nor Michael are identified in the Trust or the will. The will, however, contains the following term:

Except as otherwise expressly provided by this Will, I intentionally and not as the result of any accident, mistake or inadvertence, make no provision for the benefit of any child of mine, nor the issue of any child of mine, whether now alive, now deceased, or hereafter born or deceased.

         The Trust names Sebastian and his descendants as the beneficiaries of the Trust upon the decedent's death. The Trust is also the sole legatee of the will.

         The petitioners filed this action in February 2017, requesting "a copy of the Trust and seeking a determination of their status as pretermitted heirs." The respondent moved to dismiss, arguing that RSA 551:10 does not apply to trusts, and RSA 564-B:1-112 does not incorporate RSA 551:10 as a rule of construction applicable to trusts. In response to the respondent's motion to dismiss, the trial court transferred to this court the question of whether RSA 564-B:1-112 incorporates RSA 551:10.

         While this case was pending, the legislature amended RSA 564-B:1-112, adding the following sentence: "RSA 551:10 shall not apply to any trust." The respondent moved for us to take judicial notice of this amendment, arguing that the amendment was dispositive of the issue before us. The petitioners objected, arguing that the amended statute should not be retroactively applied. We need not determine whether the amended version of RSA 564-B:1-112 applies retroactively because we conclude that RSA 551:10 is not a rule of construction, but rather a rule of law.

         The petitioners argue that the legislature's enactment of RSA 564-B:1-112 incorporates RSA 551:10 as a statutory rule of ...


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