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In re Estate of Dow: N.H. Law Governs Will, Despite Express Language to the Contrary (Part 1 of 2)

By: David Eby and Sydney Gillis

On January 20, 2021, the New Hampshire Supreme Court issued an opinion, In re Estate of Dow, discussing two separate issues of interest to probate practitioners:  (1) the governing law over a will that requested the application of Massachusetts law, and (2) the application of what is known as the pretermitted heir statute. 

This blog post is part one of a two-part series explaining these issues.  Before we address the pretermitted heir issue, for now we will focus on the governing law:

The case involved the estate of Marie Dow. At the time of her death in 2018, Ms. Dow had been living in New Hampshire in an assisted living facility for a year. Before that, she lived in Massachusetts, where she had created her will in 2014. Ms. Dow sold her real estate in Massachusetts, and was left with only personal property at the time of her death.

Ms. Dow’s son, who had been omitted from her will, asserted a claim that he was a pretermitted heir (a forgotten and unintentionally omitted child), and that the New Hampshire pretermitted heir statute (which likely would provide him with a portion of the estate), and not the Massachusetts statute (which would not provide him with anything) should govern the analysis.  In her will, Ms. Dow had specifically included a provision stating, “[the] estate is to be administered and enforced according to the laws of the Commonwealth of Massachusetts.” With this in mind, the Probate Division applied Massachusetts law over New Hampshire law. The son took nothing. On appeal, the son argued that because his mother was domiciled in New Hampshire at the time of her death and her estate consisted of only personal property, New Hampshire law should govern.  The Executor of the estate argued that the lower court properly applied Massachusetts law, conforming to the explicit provision in the will and Ms. Dow’s clear intent.

The Supreme Court held that New Hampshire’s pretermitted heir statute would apply to Ms. Dow’s will, because she was a domiciliary of the state at the time of her death and she only held personal property. The Court explained that, under New Hampshire law, any personal property of a testator typically passes according to the law of their state of domicile. This was compared with the law of Massachusetts, which follows the Uniform Probate Code (“UPC”), unlike New Hampshire. The UPC generally allows testators to choose the law of another state to determine the legal effect and meaning of their will. The Court further stated that, while New Hampshire attempts to give maximum effect to a testator’s intent, the law would not support applying the Massachusetts pretermitted heir statute independently from the New Hampshire law over the distribution of Ms. Dow’s personal property.

Perhaps if New Hampshire followed the UPC, like Massachusetts, there would there have been a different outcome here. However, as we will see in part two, Ms. Dow’s son was fortunate that this is not the case.

Look for our next blog post discussing the Court’s application of the New Hampshire pretermitted heir statute.

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