David P. Eby

Shareholder
Manchester, NH

I am an experienced probate litigator and chair Devine Millimet’s Probate Litigation Practice Team. The bulk of my practice involves working with clients to resolve estate and trust disputes. I represent individuals as well as institutional trustees and charitable organizations in will and trust challenges, guardianships, conservatorships, actions involving powers of attorney, and other disputes related to the transfer of wealth. We handle these cases with great sensitivity and expertise. One of my cases involved the resolution of one of the highest trust disputes in New Hampshire history.

I am readily familiar with our Probate Division and I litigate many of my cases in New Hampshire’s Trust Docket, a special court within the Probate Division reserved for the more complex probate litigation matters. And although I am well equipped to take my cases to trial and on appeal to the New Hampshire Supreme Court, I am a firm believer that litigants should consider mediation and other methods of dispute resolution to bring matters to conclusion.

I also represent individuals in divorce and related family matters, where I work with clients on issues related to the division of marital estate assets, alimony, child support and parenting time.

I regularly post information on Devine Millimet’s blog, which can be found here: Wills & Trusts Blog. I strongly believe in the importance of active participation in the local community. I currently serve as co-chair of the Board of Directors for Court Appointed Special Advocates (CASA), a non-profit group that recruits and trains guardians ad litem to represent the interests of abused and neglected children of our state. I also serve on the board of the Palace Theatre in Manchester. I am a former director of the New Hampshire Bar Foundation, the charitable arm of the Bar Association, and I am proud to be an elected Bar Foundation Fellow, a designation given to New Hampshire attorneys whose professional accomplishments and commitment to service represents the best of the legal profession. I am involved with my church, and in my free time you’ll find me biking, running, and hiking with my wife and three daughters.

Representative Matters

Routinely represent individuals in challenges to wills and trusts.
Routinely represent individuals to challenge the improper transfer of assets.
Routinely represent executors and trustees in the defense of wills and trusts.
Successfully challenged a will and trust on behalf of two charities in highly publicized case, with the probate court setting aside the estate planning documents on the ground of undue influence.
Represented Trustee in multi-million dollar dispute over Trust access and asset.
Represented non-profit beneficiaries in a successful challenge to and termination of a charitable trust.
Represented individuals in numerus accounting actions (Power of Attorney claims).
Represented family members and charities on numerous occasions in challenges to wills/trusts on grounds of lack of mental capacity and undue influence.
Represented disinherited spouse in action to assert spousal claim and challenge to will.
Represented beneficiary of trust, challenging actions of the trustee.
Represented individuals seeking an accounting by an attorney-in-fact under a durable power of attorney document.
Represented trust company against claims of mis-management.
Represented municipality in pension claims and represented individuals in various pension claims under the Federal ERISA statute.
Represented Plaintiffs in ERISA class action suit, securing a $2.4 million settlement for the benefit of the class.
Represented land owners regarding various easement rights and covenant issues before the New Hampshire Superior, Probate and Supreme Courts.
Represented individuals in numerous divorce matters, including parenting responsibility and support issues.
Represented businesses and business owners in numerous breach of contract and breach of fiduciary duty claims.

Publications

"Antemortem Statutes and No-Contest Provisions," New Hampshire Bar News, March 18, 2020
"Common Law Marriage - How It Works," Wills & Trusts Blog, December 20, 2019
"How to Establish a Guardianship," Wills & Trusts Blog, December 6, 2019
"Trustee Removal," Wills & Trusts Blog, November 22, 2019
"Reliance on Advice of Counsel – A Complete Defense," Wills & Trusts Blog, November 8, 2019
"Undue Influence – A Successful Defense," Wills & Trusts Blog, October 25, 2019
"Successful Partition Case," Wills & Trusts Blog, October 11, 2019
"Safe Harbor Actions" in Will Contest Cases," Wills & Trusts Blog, May 21, 2018
"Expert Testimony & Testamentary Capacity," Wills & Trusts Blog, April 23, 2018
"Burden of Proof in Will Contest Cases," Wills & Trusts Blog, March 26, 2018
"Undue Influence," Wills & Trusts Blog, September 11, 2017
"Evidence to Support Undue Influence," Wills & Trusts Blog, September, 11 2017
"Partition Actions in New Hampshire," Wills & Trusts Blog, September 4, 2017
"Settlement and Mediation," Wills & Trusts Blog, August 28, 2017
"Attorneys' Fees in Guardianship Cases?" Wills & Trusts Blog, August 21, 2017
"Conservatorships," Wills & Trusts Blog, May 23, 2017
"Petitions for Accounting," Wills & Trusts Blog, May 16, 2017
"Power of Attorney Document-- A License to Steal," Wills & Trusts Blog, May 9, 2017
"The New Hampshire Trust Docket," Wills & Trusts Blog, May 2, 2017
"What is "Probate Litigation"?" Wills & Trusts Blog, April 25, 2017
"Our Probate Litigation Team," Wills & Trusts Blog, April 18, 2017
"Quantum of Proof in Undue Influence Cases," March 16, 2016
"Collaborative Law In Divorce Cases," Family Law Forum Blog, December 10, 2015
"White Paper: Financial Exploitation of the Elderly," September 2, 2015
"Changes in the Probate Division," January, 2014
"Post-Nuptial Agreements Ruled Enforceable in New Hampshire," Family Law Forum Blog, September 6, 2013
"College Expenses and the Divorced Parent in New Hampshire," Family Law Forum Blog, June 10, 2013
"Pre-Nuptial Agreements: Are They Enforceable in New Hampshire?" Family Law Forum Blog, May 29, 2013
"Financial Exploitation of the Elderly - Another Look," January 11, 2013
"Partition Actions in New Hampshire," October 9, 2012
"Powers of Attorney: A License to Steal?" June 25, 2012
"Guardianship and the Right to Attorneys' Fees," March 21, 2012
"On the Front Lines: Battling Financial Exploitation of the Elderly," May 27, 2011
"Mediation in Probate Litigation Matters," June, 2010
"Same Gender Marriage and Probate Law," February, 2010
"Burden of Proof in Undue Influence Cases," September, 2008
"Anna Nicole Smith & Estate Litigation- The Saga Continues," March, 2008
"The Disinherited Spouse," November, 2007
"Burke v. Bunny’s Superette: When Can You Undo A Hijacked Will?" May 16, 2007
"Show Me the Money! Anna Nicole Smith and Probate Litigation," April 17, 2007
"Preventing and Remedying Financial Exploitation of the Elderly," NH Bar News, October 6, 2006
"The Therapist-Client Privilege In Child Custody Disputes: Understanding the Berg Decision," Networker - Newsletter of the NH Psychological Association, January 2006
"Trustee Obligations: Avoiding Beneficiary Lawsuits," CPA Connection, April 2005

Speaking Engagements

"Recent Undue Influence Cases: Lessons for the Estate Planning Practitioner," Portsmouth, NH, May 12, 2016
"Challenges to Wills During Lifetime," Portsmouth,NH, September 2015
"Financial Exploitation of the Elderly: The Invisible Epidemic," NH Bar Association, June 12, 2015
"Financial Exploitation of the Elderly: How to Spot It, How to Prevent It, and How to Remedy It, New Hampshire Society of Accountants, June 19, 2013
"Guardianship Nuts and Bolts: Obtaining Guardianship in New Hampshire Courts," NH Health Care Association Webinar, May 1, 2012
"Guardianship: Nuts and Bolts," NH Health Care Association Seminar, September 30, 2010
"Show Me the Money and Financial Exploitation of the Elderly," NH Health Care Association Seminar, May 6, 2009, Merrimack County Nursing Home
"Recent Developments in Employment Law and Family Law: What Employers Need to Know" - October 19 and 31, 2007
New Hampshire Healthcare Association: "Financial Exploitation of the Elderly," The Courtyard Marriott, Concord - September 13, 2006
"New Hampshire Healthcare Association: Guiding End of Life Care," Geriatric Education Conference - June 27, 2006
"Financial Exploitation of the Elderly," Riverwoods at Exeter - March 23, 2006
"Financial Exploitation of the Elderly," Charter Trust Company - May 2, 2006
"Financial Exploitation of the Elderly," Half-Day Seminar, CR Sparks, Bedford, New Hampshire - November 2, 2005

Community Involvement

Member of the Board of Directors for The Palace Theatre, Manchester, New Hampshire, 2019 - present
Board of Directors of CASA (Court Appointed Special Advocates) of New Hampshire, 2013 - 2022 (Chair, 2016 - 2017)
Director and Fellow, New Hampshire Bar Foundation, 2012 - 2016
Board of Directors, Brain Injury Association of New Hampshire, 2013 - 2016
St. Elizabeth Seton Catholic Church, Pastoral Council Member, 2004 - 2008
Greater Manchester Habitat for Humanity, former President, Board of Directors
Georgetown University Admissions Representative, 2005 - 2010