Probate Litigation

McLane Middleton has the most active probate / estate litigation practice in New Hampshire and regularly appear in Massachusetts courts. These cases often involve difficult legal issues, sometimes with important tax implications, as well challenging family dynamics and tensions. Our experience helps us provide knowledgeable and thoughtful guidance and representation.

We have handled many cases in which the validity of wills, trusts, gifts, deeds, and other transactions have been challenged on grounds of incapacity due to dementia and/or the exertion of undue influence by a relative, caregiver, or friend.  We are sensitive to family dynamics and the unique pressures faced by families in probate and estate litigation.

When assets of an aging family member are being depleted due to impaired judgment or exploitation, we can provide quick and efficient representation to help address the issue.

We understand the complex mental health issues related to aging. We have working relationships with geriatric psychiatrists and other medical and mental health professionals. We are sensitive to family dynamics and the unique pressures faced by families working hard to protect aging family members and their assets.

Through ProbateTrial.com, we provide guidance and commentary to the bar and public on important and developing probate litigation news and case law.

  • Will and trust contests – wills and trusts can be challenged on a variety of grounds, including most commonly that they were signed without testamentary capacity and/or under undue influence.
  • Guardianships and conservatorships – when a loved one due to dementia or other impairment is no longer able to manage his or her affairs, the Probate Court upon a proper showing may appoint a fiduciary to step in.
  • Fiduciary duty claims – trustees, executors, guardians, and other fiduciaries are subject to the highest duties in law, namely duties of utmost care and loyalty, and and may be held accountable for breaches of their duties.
  • Statutory accounting claims against NH power of attorney agents – agents under powers of attorney in NH are subject to statutory accounting and other claims.
  • Fiduciary accounting and removal actions – trustees, executors, guardians, and other fiduciaries are subject to claims to account and potentially for removal.

  • Trust interpretation, modification, and termination claims – trusts are not always clear and sometimes no longer serve their intended purposes and may be subject to proceedings to clarify their meaning, declare rights of the interested parties, and/or to modify or terminate them.
  • Common law marriage claims – a life partner of a decedent in appropriate circumstances may claim to have been the common law spouse in order to recover inheritance rights as the surviving spouse.
  • Elder exploitation issues and constructive trust claims – property transfers, the re-titling of investment and bank accounts, IRA and life insurance beneficiary designations, and other transactions can be challenged if they were undertaken without capacity and/or were procured by undue influence.
  • Partition actions – when family members own real estate in common and cannot agree to the terms for its use, the sharing of maintenance, taxes, and other expenses, or other issues, the courts have the authority to compel a sale and to allocate the proceeds among the owners.

Significant Verdicts and Appeals:

  • $3.4 million verdict in Trimble v. Bolduc, a fiduciary duty case against trustee and related entities
  • $2.8 million verdict in Whittemore v. Hersey, a fiduciary duty case against trustee and attorney-in-fact
  • $6 million verdict in Loconti v. Loconti (in concert with counsel representing other another claimant) to compel settlor’s contractual obligation to fund trust for benefit of claimants
  • Successfully defended fiduciary duty claims against Trustee relative to management and sale of manufactured housing park in Tay v. Grondin
  • Successfully challenged will and trust due to incapacity and undue influence in In re Estate of Frederick W. Whittemore (affirmed on appeal)
  • Successfully obtained contested trust reformation against plain meaning in Preuninger v. Youschak
  • Successfully defended fiduciary duty claims against attorney-in-fact in Therrien v. Therrien
  • Successfully defended trustee removal action in In re Trust of Gordon F. York
  • Successfully defended challenge to will on capacity and undue influence grounds in Betjemann v. Betjemann
  • Successfully defended challenge to trust validity due to alleged lack of settlor consent and other grounds Belisle v. Belisle
  • Successfully defended claim to apply pretermitted heir rights to trusts, In re Teresa Craig Living Trust (N.H. Supreme Court, 9/7/2018)
  • Successfully enforced pre-nuptial agreement in In re Hollett Estate, reversed on appeal, 150 N.H. 39, 834 A.2d 348 (2003)
  • Successfully defended spendthrift trust on appeal in Scheffel v. Krueger, 146 N.H. 669, 782 A.2d 410 (2001)

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For additional information, contact Ralph Holmes, Chair of the firm's Probate Litigation Group.