2006-441, IN RE ESTATE OF ROBERT LAWRENCE SHAREK

The appellant, M. Georgette Sharek, the former wife of the

brief and orally), for the appellee. to press. Errors may be reported by E-mail at the following address: Dow’s Law Office, P.A., of Norway, Maine (Edward L. Dilworth, III on the

appellant. Vincent A. Wenners, Jr., of Manchester, by brief and orally, for the

IN RE ESTATE OF ROBERT LAWRENCE SHAREK

editorial errors in order that corrections may be made before the opinion goes No. 2006-441 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough County Probate Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as failed to survive the decedent. p. 2 such former spouse who are not also heirs at law of the decedent

for appointment within thirty days. 2 appellant’s appointment as estate administrator pending the appellee’s petition

prohibition against retrospective laws is contained in Part I, Article 23 thereof.

it is unsupported by the evidence or tainted by error of law.” interpreted as if the spouse and all heirs in the descending line of

court reversed itself and, ruling that RSA 551:13, II applied, suspended the “sole residuary beneficiary under the will.” Upon reconsideration, however, the court initially entered an order under which the appellant would have been the Although the appellant does not cite to the State Constitution, the petitioned the court for instructions as to the effect of RSA 551:13, II. The trial Eldridge, 136 N.H. 611, 613 (1993).

On appeal, the appellant argues that the trial court erred in applying

executor in the decedent’s will, filed the petition for estate administration and On August 12, 2005, the decedent died. The appellant, the named

Reilly, 493 A.2d 32, 33 (N.J. Super. Ct. App. Div. 1985). decedent failed to survive the decedent, and other provisions terminated in the event of the dissolution of their marriage.” of p. 2 such former spouse who are not also heirs at law of the Matter of Will of of a testator that any disposition in a will benefitting a spouse should be passes as if the former spouse and all heirs in the descending line (1998). “The gist of this statute is to incorporate into law the presumed intent former spouse because of revocation by divorce or annulment Uniform Probate Code. Unif. Prob. Code § 2-508 (revised 1993), 8 U.L.A. 376 The statute, in substantial part, tracks the language of Section 2-508 of the

expressly provides otherwise. Property prevented from passing to a executor, trustee, conservator, or guardian, unless the will on the former spouse, and any nomination of the former spouse as any provision conferring a general or special power of appointment appointment of property made by the will to the former spouse, is annulled, the divorce or annulment revokes any disposition or If after executing a will the testator is divorced or the marriage

which currently provides, in pertinent part: In 1998, the legislature enacted RSA 551:13, II, see Laws 1998, 127:1,

law, Raymond J. LaPlante, the appellee in this case. will here at issue left the remainder of the decedent’s estate to his brother-inanother.

enforcement of a demand, or a legal exemption from the demand of become a title, legal or equitable, to the present or future an anticipation of the continuance of existing law; it must have

it is a valid and permissible one.

Buehler, 425 N.E.2d 905, 906 (Ohio Ct. App. 1979) (application of revocationtakers under will had vested at the time of testator’s divorce); Buehler v. App. 1982) (superseded by statute on other grounds) (no property rights in be vested, a right must be more than a mere expectation based on a vested right. We agree. See Morse v. Alley, 6 p. 3 38 S.W.2d 284, 287 (Ky. Ct. because the appellant’s expectation of taking under the decedent’s will was not The trial court ruled that RSA 551:13, II could be applied retrospectively

Goldman, 151 N.H. at 774 (quotation omitted).

even assuming, without deciding, a retrospective application, we conclude that

rights.” There is a presumption of prospectivity when a statute affects substantive on whether the statute affects the parties’ substantive or procedural rights. existing law. Those rights are designated as vested rights, and to statute should apply prospectively or retrospectively, our interpretation turns deprive a person of a property right theretofore acquired under statutory or common, at its pleasure, but in so doing, it may not Constitutions, the Legislature may change existing laws, both Unless otherwise inhibited by either the State or Federal

terms of its effect upon vested rights: statute was actually applied prospectively or retrospectively, however, because I, Article 2 p. 3 3, the prohibition against retroactive legislation may be considered in testator’s death). We need not overly concern ourselves with whether the omitted). In addition, as indicated in our previously-cited interpretation of Part death was not retrospective because the will did not take effect until the In the Matter of Donovan & Donovan, 152 N.H. 55, 63 (2005) (citation

prospectively or retrospectively. “When the legislature is silent as to whether a On its face, RSA 551:1 p. 3 3, II does not indicate whether it is to apply

transactions or considerations already past, must be deemed retrospective.” obligation, imposes a new duty, or attaches a new disability, in respect to

449 (1851) (application of statute enacted after execution of will but prior to occurred after the statute’s enactment. See Loveren v. Lamprey, 22 N.H. 4 p. 3 34, a retrospective application of RSA 551:13, II at all, as the testator’s death The question arises whether the trial court’s decision may be considered

the Matter of Goldman & Elliott, 151 N.H. 770, 772 (2005) (quotation omitted).

away or impairs vested rights, acquired under existing laws, or creates a new We have interpreted that provision “to mean that every statute which takes p. 4 4

retrospective application would be permissible because, “[i]n the final

at issue as substantive rather than procedural. We nevertheless conclude that substantive/procedural dichotomy, we would categorize the purported “rights” obligations nor establishe[d] any new duties”). We agree that in the N.H. at 615 (applying retrospectively statute which “neither create[d] any new testator still wishes to devise property to his former spouse). Cf. Eldridge, 136 and creates a new duty (the duty to execute a new will post-divorce if the a right (the right of the testator to devise his property to whomever he wishes) retrospectively applied because it affects substantive rights in that it eliminates The appellant further argues that RSA 551:13, II may not be

551:13. testator’s “right” to bequeath property, to retrospective application of RSA 151 N.H. at 773 (quotation omitted), we find no impediment, based upon the State as precludes their amendment or repeal by the legislature,” Goldman, and “the individual citizen . . . has no vested interest in the existing laws of the under a will. (quotation and brackets omitted). Thus, because wills are creatures of statute beneficiary is no more vested than a devisee’s or legatee’s expectation of taking Estate of Robitaille v. N.H. Dep’t. of Rev. Admin., 1 p. 4 49 N.H. 595, 597 (2003) rather than the beneficiary, the purported “right” to name a residuary assuming, without deciding, that the inquiry should focus upon the testator them. or municipal laws, and accordingly are in all respects regulated by inheritance and successions, are all of them creatures of the civil through its laws. Wills, therefore, and testaments, rights of descent or devise is derived from the sovereign power of the state the law; in fact, the only right to take or dispose of property by Inheritances, distributive shares, and legacies are but creatures of constitute a vested right.” property founded on anticipated continuance of existing laws, does not retroactively). “[A] mere expectancy of future benefit, or a contingent interest in

testator, has nothing more than a mere expectation of receiving property”). [that] was eliminated with the retroactive application” of RSA 551:13. Even existing laws, to name whomever he wishes to be his residuary beneficiary, beneficiary’s. She contends that it was “[t]he testator’s right, under then because the substantive right affected is the testator’s rather than the The appellant argues, however, that the trial court’s focus was misplaced

revocation-upon-divorce statute affected vested rights and could not be applied see In re Succession of Martinez, 729 So. 2d 22, 25 (La. Ct. App. 1999) (stating

retroactive laws because “[a] beneficiary under a will, until the death of the upon-divorce statute did not violate constitutional prohibition against legislative purpose than would a more restrictive construction. p. 5 to the rights or claims of anyone, would appear better to fulfill the testamentary intent, universal in application and without prejudice 5

uniform, nondiscriminatory, and conclusive presumption of effective. Indeed, if the statute is so construed, the resulting just to divorces obtained after the change in the law became qualification, that a divorced spouse is to be denied any benefits intent apply to all divorces of all testators thereafter dying, and not testators, which provided, without condition, reservation, or statutory declaration of public policy concerning wills of divorced legislative intent that it be given limited application. It was a We find nothing in the wording of [the statute] to indicate any

enactment. should be denied to those whose divorces have antedated its We perceive no reason why the beneficial effect of the statute

The [legislature] was not precluded from making this presumed benefit of his spouse be terminated in the event of their divorce. presumed intent of a testator that any provision in his will for the purpose of the [legislature] was to incorporate into statute the In enacting [the revocation-upon-divorce provision,] the obvious

with the reasoning in Papen: Will of Reilly, 493 A.2d at 34-35. Like the New Jersey Court, id. at 35, we agree have addressed this issue and have uniformly rejected the retroactivity claim.” careful testators who might be inconvenienced by its enactment. jurisdictions which have adopted Section 2-508 of the Uniform Probate Code would be benefited by the statute far exceeded the number of retroactivity as an issue of first impression, noted that “several other undoubtedly concluded that the number of forgetful testators who accord with our holding. The Superior Court of New Jersey, examining [legislature], in evaluating the advisability of changing the law, Finally, we note that a majority of other jurisdictions appear to be in

Papen v. Papen, 224 S.E.2d 153, 155-56 (Va. 1976). is fundamentally unfair. beneficiary’s “rights” are vested, and we cannot say that any new duty created

legislation is to promote justice.”

the affirmative action to reverse the intent implicit in the law. The [The statute] merely shifts to the testator the burden of taking

brackets omitted). As discussed above, neither the testator’s nor the

determination of fundamental fairness, [as] the underlying purpose of all analysis[,] . . . the question of retrospective application rests on a p. 6 6

concurred.

have so stated.

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

case, we uphold its decision. Finding no error in the trial court’s application of RSA 551:13, II to this

Papen, 224 S.E.2d at 155.

intended the statute to apply only to subsequent divorces it could under a will executed prior to divorce. If the [legislature] had