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
Middleton, Professional Association, of Manchester (Ralph F.
Holmes and Jacqueline A. Botchman, on the brief, and Mr.
Holmes, orally), for the respondent.
A. Perlow and Todd D. Mayo of Hampton, for the New Hampshire
Trust Council, as amicus curiae.
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.
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
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.
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.
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.
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.
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.
petitioners argue that the legislature's enactment of RSA
564-B:1-112 incorporates RSA 551:10 as a statutory rule of