Practice Areas
Probate Litigation
The complexities of probate and estate law are exacerbated by a range of pressures faced by families seeking to protect aging family members and their assets. These include delicate family dynamics, physical and mental health issues, and the sometimes inappropriate influence of caregivers or others.
McLane Middleton has the most active probate / estate litigation practice in New Hampshire and regularly appears in Massachusetts courts as well. These cases often involve difficult legal issues, sometimes with important tax implications, as well as 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 or the exertion of undue influence by a relative, caregiver, or friend.
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.
In all of our work we are sensitive to the unique stressors faced by families in probate and estate litigation and understand the complex mental health issues related to aging. We have valuable working relationships with geriatric psychiatrists and other medical and mental health professionals.
We frequently help clients with the following claims, actions, and disputes:
- Will and trust contests – Wills and trusts can be challenged on a variety of grounds, including that they were executed 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 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, 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 modify or terminate them.
- Common law marriage claims – Under some conditions, the life partner of a decedent may claim to have been the common law spouse in order to recover inheritance rights.
- 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 or through undue influence.
- Partition actions – When family members own real estate in common and cannot agree to the terms for its use, the sharing of expenses, or other issues, the courts have the authority to compel a sale and to allocate the proceeds among the owners.
Representative Matters:
- In addition to frequently obtaining favorable settlements for our clients, we have been involved in the following trials and appeals:
- Obtained $3.4 million verdict in Trimble v. Bolduc, a fiduciary duty case against trustee and related entities
- Obtained $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 removed individual appointed as guardian in Guardianship of D.V.
- Successfully modified restrictions on charitable fund in In Re Robert T. Keeler
- Maintenance Fund for the Hanover Country Club at Dartmouth College (affirmed on appeal)
- Prevailed on summary judgment in safe harbor action in In Re The Richard S. Hallett 1996 Revocable Trust Agreement
- Successfully defended jurisdictional challenge to appointment of Ancillary Administrator in In Re Estate of Lorraine R. O’Neill (affirmed on appeal)
- Successfully quieted title to certain real estate and obtained partition of inherited real estate in Preuninger v. Youschak
- Successfully defended claim to apply pretermitted heir rights to trusts, In re Teresa Craig Living Trust (Certified Question to N.H. Supreme Court)
In addition to our client work, as a service to the bar and public, we provide guidance and commentary on important and developing probate litigation news and case law through our blog ProbateTrial.com.
