2007-294, IN RE GUARDIANSHIP OF PHUONG PHI THI LUONG

The petitioners, the guardians of Phuong Phi Thi Luong,

and orally), for the respondent. Ransmeier & Spellman, P.C., of Concord (John C. Ransmeier on the brief to press. Errors may be reported by E-mail at the following address:

and orally), for the petitioners. John D. MacIntosh, P.C., of Concord (John D. MacIntosh on the brief

IN RE GUARDIANSHIP OF PHUONG PHI THI LUONG

editorial errors in order that corrections may be made before the opinion goes No. 2007-294 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 p. 2 22 as 2

parents are entitled to portions of the proceeds.” an effort to force [Phi’s] ex-husband to agree that he, his siblings, and his finally settled, resulting in a net realization of $4,964,8 p. 2 23.31 to Phi’s estate. July 7, 2004. With the addition of Mitchell as co-guardian, the civil suit was him appointed as Phi’s co-guardian. The probate court approved the motion on

she can receive daily life-sustaining care. addition, Abramson stated that Tan Luong “refused to authorize settlement in wishes to obtain personal monetary benefits to which he is not entitled.” In

Mitchell for nearly two hours and, on June p. 2 23, 2004, filed a motion to have In accordance with that stipulation, Tan Luong interviewed attorney Joseph E. attorney – to be approved later by the probate court – to serve as co-guardian. stipulation was submitted to the court that permitted Tan Luong to select an The probate court never ruled upon Abramson’s motion. Instead, a

guardian. The probate court then appointed a guardian objected to Tan Luong’s proposed will in his capacity as Catherine’s natural Because she is unable to care for herself, she now resides at a facility where breathe on her own, she is unresponsive to stimuli and must be fed artificially. of the civil suit, . . . [Tan Luong] refuses to authorize settlement because he result, she is now in a persistent vegetative state. Although she is able to and that, “in spite [of] the fact that he has no legal right to any of the proceeds had obtained a substantial settlement offer from the defendants in Phi’s suit, successor guardian be appointed. In that motion, Abramson asserted that he with the probate court requesting to have a will approved for Phi’s estate. motion requesting that Tan Luong be removed as guardian and a disinterested malpractice action on Phi’s behalf and, on September 8, p. 2 2003, filed a petition the attorney representing Phi in the civil suit, Mark A. Abramson, filed a However, before the probate court could consider Tan Luong’s petition,

Catherine’s interests in the matter.

obtained custody of Catherine through finalization of Phi and Walker’s divorce, Catherine’s name, and Phi’s siblings, including Tan Luong. Walker, who had estate would have been divided equally among Phi’s parents, a trust in suffered irreparable brain damage during the course of elective surgery. As a RSA 464-A: p. 2 26-a, III. Pursuant to Tan Luong’s proposed will, Phi’s residuary

appointed her sole guardian. As guardian, Tan Luong initiated a medical Following Phi’s incapacitation, her youngest brother, Tan Luong, was

On February 17, p. 2 2003, while her divorce to Walker was still pending, Phi

approximately p. 2 2002, Phi and Walker filed for divorce and Phi obtained and, approximately one year later, gave birth to her only child, Catherine. In additional forty percent to Catherine’s trust. p. 3 parents; (2) twenty percent to Phi’s siblings, including Tan Luong; and (3) an The residue of Phi’s estate was allocated as follows: (1) forty percent to Phi’s

five without issue, all of the trust assets would go to Phi’s parents and siblings.

of the cultural fabric of the United States . . . . of twenty-five. However, if she passed away before reaching the age of twenty- of the U.S., living and working in the U.S. for many years, and part Catherine would be entitled to all of the trust assets once she reached the age culturally attuned to her ethnic heritage, so too, she was a citizen and principal [of the trust] for the support, education and care of Catherine.” death, and if so, in what proportions. As much as she was desire to benefit her daughter, her parents or her siblings upon her she had formulated any before he[r] incapacity, regarding her The ward never made a will and never discussed her intentions, if adhered to those Vietnamese values in making her testamentary bequests. likely recipients of gifts from the ward”). More specifically, the court stated: parents and siblings, in an attempt to demonstrate that Phi would have distribution of the ward’s estate to family, friends, or charities who would be the guardian to develop an estate plan to “minimize taxation or to facilitate where a ward’s wishes cannot be ascertained, the probate court may authorize made had she not been incapacitated. See RSA 464-A:26-a, I (explaining that, minimized taxation on Phi’s estate or provided for bequests that Phi would have preponderance of the evidence did not demonstrate that the revised will either the sole trustee of the trust and would have had discretion to use “any income guardians’ revised estate plan. The court ruled, among other things, that the On October 19, 2005, the probate court issued an order rejecting the

acquaintances, and submitted evidence of prior gifts Phi had made to her Vietnamese origin.” Moreover, they solicited testimony from two of Phi’s “consistent with the cultural background, values and beliefs of citizens of demonstrate that the distributions provided for in the revised estate plan were submitted testimony from two Vietnamese attorneys in an attempt to concerning the guardians’ petition. During those proceedings, the guardians Accordingly, the probate court held a four-day hearing to consider evidence automatically be made to a trust in Catherine’s name. Tan Luong was named appearance. Catherine’s guardian ad litem joined in Walker’s objection. provided that, upon Phi’s death, a cash bequest of $400,000 would Walker objected to the guardians’ revised estate plan and filed a notice of Unlike the estate plan submitted earlier by Tan Luong, the revised estate plan

court “request[ing] that the court accept and approve” a revised estate plan. On October 7, 2004, Phi’s guardians filed a new petition with the probate p. 4 Mulhern to fill this referee role and “act as an arm of the court.” implementation.” On March 14, 2006, the court appointed attorney Sally plan for [Phi] and submit the same to the [c]ourt for approval and

not be reached from the proposals presented, “to establish a specific estate

a referee to review the plans submitted by the parties and, if a consensus could resolve the matter. In addition, the court explained that it intended to appoint days after receipt of the guardians’ plan; and scheduled a status conference to 4

guardians’ final plan to submit an alternative plan to the court within forty-five interested parties within sixty days; ordered all parties who opposed the ordered the guardians to submit a copy of their final plan to the court and all Therefore, presumably in anticipation of another dispute, the probate court

ward’s unique circumstances and long term medical needs. . . . being established and calculated, particularly in reference to the potential future support obligations of the ward to her daughter

court.” considerations in a further proposed distribution plan for approval by the alternatives available and perhaps agree to a restatement of all of these important additional information to be obtained, as well as the many

Walker had expressed concern that this new plan would also face opposition. response to the Court’s rejection of the previously proposed will,” and that the proposed distributions would be made in this case. ha[d] hired counsel to prepare a comprehensive estate plan for [Phi] in presented would be against the percentages and manner in which dispute, the court acknowledged that it had been “advised that the guardians apparently prepared without a determination of the present and Two months later, in an order resolving a matter unrelated to the present

the guardians’ revised will, the parties were “invited to further consider all The court concluded its order by stating that, although it was rejecting

child, but the weight of and preponderance of that evidence in the future. Further, the propose[d] distribution plan was reflect cultural norms and traditions, as well as to the ward’s only beneficiaries of the ward under the plan, at present or potentially distribution to the parents and siblings of the ward, to generally impact on the ward, or the present and potential impact on the evidence may well support some nature, amount and manner of terms of the will being offered for approval by the Court. This specific testamentary distribution plan for the ward reflected in the On all this evidence, the preponderance is found to be against the

developed without any clear, specific understanding of the tax As to the testamentary distribution plan being proposed, it was declines the gift, then to New Hampshire Legal Assistance.” p. 5 the Buddhist Temple in Manchester, or if that Temple is not in existence or estate that would be distributable to Tan Luong “shall be distributed instead to

the guardians’ final estate plan explicitly provided that any portion of Phi’s

rejected in its October 19, 2005 order. members of [Phi’s] family” from the revised estate plan the court had already change in the relative economic interests of Phi’s daughter and the other 5

of Phi’s parents by right of representation.” Finally, unlike in the prior plans, then one-half in equal shares to Phi’s parents and one-half to the descendants then living descendants by right of representation, or, if [she had none], . . .

reject the guardians’ final estate plan because it “represent[ed] no material

Mulhern, the guardians[’] proposed plan, and [any] plan offered by” Walker. receiving Mulhern’s plan, in order to consider “the plan developed by . . . ward.” The court further stated that it would schedule a hearing, after parents if they were still alive or, if they were not, then to Phi’s siblings, Mulhern to “review all relevant matters and develop an estate plan for the had not attained the age of thirty-five, and outright, if she had; (2) 45% to Phi’s principal and undistributed income [of her trust] would be distributed to [her] On June 6, 2006, the probate court held a status conference and ordered residuary estate in the following manner: (1) 45% to Catherine in trust, if she died without having exercised her “power of appointment, the remaining

too favorable to them.” Therefore, Walker argued, the probate court should under the [revised estate plan] that the [probate c]ourt disapproved as being [Phi’s] family an immediate gift of $525,000 that they would not have enjoyed “offset by the fact that the proposed $1 million gift secures for members of proposed in the previously rejected revised estate plan, was de minimis and Catherine’s share under the guardians’ final will to 45%, from the 40% final estate plan. In his objection, Walker pointed out that the increase in included a will for Phi, which provided for bequests, upon her death, of her twenty-five. However, if she passed away before reaching that age, or if she Both Walker and Catherine’s guardian ad litem opposed the guardians’ testamentary power of appointment over her trust once she reached the age of thirty, and thirty-five. In addition, Catherine was to have a general provided for disbursements when Catherine reached the ages of twenty-five,

outright to those of Phi’s siblings who reside in Vietnam. The plan also distributed to Catherine in trust, 47.5% to Phi’s parents outright, and 5% $1,000,000 in lifetime gifts out of Phi’s estate, of which 47.5% was to be attached to the guardians’ revised estate plan in several respects. First, it The trust created for Catherine in this plan was different from the one

stirpes; and (3) the remaining 10% to Phi’s siblings, per stirpes.

probate court approve their final estate plan. That plan provided for up to On April 20, 200 p. 6 6, the guardians filed a petition requesting that the demonstrated that it is the guardian’s responsibility to draft the ward’s estate

entitling the statute “Estate Planning by Guardian,” the legislature clearly

legislative intent from the statute as written. ascribe the plain and ordinary meaning to the words used and discern the The legislative intent of RSA 4 p. 6 64-A:26-a is clear on its face. Apart from

N.H. at 308. approving or disapproving the guardians’ plan.” expressed in the words of a statute when considered as a whole. Doyle, 15 p. 6 6 they assert, the court’s authority under the statute “is limited to either (2004). However, we are the final arbiters of the legislature’s intent as it is indication of legislative intent. Franklin v. Town of Newport, 151 N.H. 508, 509 of a statute is plain and unambiguous, we do not look beyond it for further language that the legislature did not see fit to include. Id. When the language (2007). We will not consider what the legislature might have said, or add under the authority conferred on her . . . by virtue of this order.” parties to sign the same or else “the documents w[ould] be signed by the referee State v. Doyle, 156 N.H. 306, 308 plan, the court instructed Mulhern to prepare a final draft and ordered the language of RSA 464-A:26-a. When interpreting the language of a statute, we Resolution of the guardians’ argument requires interpretation of the

responsibility [of drafting an estate plan] to a third-party ‘referee’.” Instead, 4 p. 6 64-A:26-a, I,] that [the court] did not have the authority to delegate th[e] concerns the probate court may have had with the[ir] plan, it is clear from [RSA estate plan drafted by the referee. Specifically, they contend that, “[w]hatever The guardians argue first that the probate court erred in adopting the

estate in trust to Catherine and Catherine’s descendants. After adopting that II. Adoption of the Referee’s Estate Plan exceeds $2,000,000 at her death; and (3) bequeaths the remainder of Phi’s needs trust for Phi’s parents of up to $200,000, assuming that Phi’s estate A:2 p. 6 6-a. We address each of the guardians’ arguments in turn. bequests to Phi’s siblings; (2) provides for the funding of a discretionary special that both of their proposed estate plans were in compliance with RSA 464ignoring the weight of the evidence, which they submit compels the conclusion adopting the estate plan prepared by the court-appointed referee; and (2) On appeal, the guardians argue that the probate court erred by: (1)

In summary, the plan submitted by Mulhern: (1) eliminates any gifts or [RSA 4 p. 6 64-A:26-a, V(a)-(d)], and consistent with the best interests of the ward.” by Mulhern “as being consistent with all of the statutory requirements under March 28, 200 p. 7 7, the court issued its final order and adopted the plan prepared The probate court, however, did not hold another hearing. Instead, on 7

and the guardian’s personal interests”). But, the court cannot appoint a intestacy statutes. otherwise creates a potential conflict of interest between the ward’s interests guardian ad litem if the proposed gift benefits the guardian personally or

of . . . mentally incompetent persons”);

complete and adequate remedy for dealing with such a situation in the that “[t]he probate court, prior to authorizing a lifetime gift, shall appoint a

should continue to serve in that capacity. See RSA 54 p. 7 7:3, I(e) (2007) (granting 547:3-b; interests of the ward or have a conflict of interest, it may consider whether they If the probate court believes that the guardians are not acting in the best

decedent”). as this, “the entire intestate estate . . . passes . . . [t]o the issue of the

adopted in this case, the legislature has already provided what it deems to be a be drafted for all incapacitated individuals and, assuming that one is not complete remedy at law”). RSA 464-A:26-a does not require that an estate plan likely recipients of gifts from the ward.” (explaining that “equitable jurisdiction lies only when there is no plain and the otherwise available procedure for preparing a will for Phi had proved to be the court was within its “equity jurisdiction to fashion a remedy . . . because see also Thurston Enterprises, Inc. v. Baldi, 128 N.H. p. 7 760, 764 (1986) estate plan as a valid exercise of the court’s equity authority. He asserts that adequate and complete remedy at law” than adoption of the referee’s plan. RSA disagree with the respondent’s implicit assertion that there was no other “plain, responsibility of drafting an estate plan upon the guardian. Moreover, we circumvention of the express language of RSA 464-A:26-a, which places the remedy at law,” we do not agree that that equity authority can be exercised in court of equity in cases in which there is not a plain, adequate and complete Although RSA 547:3-b bestows upon the probate courts “the powers of a

or . . . facilitate distribution of the ward’s estate to . . . [those] who would be

that we must nevertheless affirm the probate court’s adoption of the referee’s The respondent argues, relying exclusively upon RSA 54 p. 7 7:3-b (2007),

drafting the ward’s estate plan, if one is to be drafted, upon the guardian. draft a plan. Therefore, we hold that RSA 464-A:26-a places the burden of 464-A:26-a, I, II, V, nothing in the statute permits the court to use a referee to ultimate discretion of approving or disapproving a submitted plan, see RSA

court to “authoriz[ing] the guardian” to draft a plan that will “minimize taxation wishes cannot be ascertained, the legislature again chose to limit the probate A:26-a, I (emphasis added). Even in cases such as this one, where the ward’s estate to plan for the testamentary distribution of the ward’s estate.” RSA 464plan by stating that “[t]he probate court may authorize the guardian of the p. 8 8

. . . we consider any appeal from such an order to be interlocutory,” we held a trial court issues an order that does not conclude the proceedings before it, Supreme Court Rule 7. Id. at p. 8 83-84. After recognizing that “[g]enerally, when trial court’s order was a decision on the merits, permitting an appeal under one of the parties subsequently appealed, we had to determine whether the custody and permanent child support to a further hearing.” Id. at 83. When decree of divorce and divided their property, but left the determination of dismissal,” proceedings in a divorce case and issued an order “that awarded the parties a Germain, 137 N.H. 82 (1993). There, the trial court had bifurcated the We confronted a situation similar to the present one in Germain v.

the issues decided therein must be barred as untimely. Ct. R. 3, 7(1)(C) (defining “decision on the merits”), the guardians’ appeal as to order. Therefore, if that order constituted a decision on the merits, see Sup. not contest that they failed to appeal the probate court’s October 19, 2005 executor’s appeal of that order two years later as untimely). The guardians do court’s removal of an executor was a decision on the merits and dismissing the [another] will for [the] court[‘s] consideration.” e.g., In re Estate of Heald, 147 N.H. 2 p. 8 80, 281-82 (2001) (holding that a probate will only “in part” and further “directed the parties to meet and formulate Prob. Ct. R. 74(a), thus making any appeal therefrom untimely, see, written notice that the [Probate] Court has made such order, decree or 2005 order was not a decision on the merits because it rejected their revised judgment being entered “on the thirty-first day from the date on the Register’s the revised estate plan. The guardians, in contrast, argue that the October 19, appellate litigation). Failure to comply with this rule will result in a final appeal promote efficient judicial administration and serve to prevent piecemeal (2007) (explaining that rules requiring a final decision on the merits prior to decision on the merits.” See also 4 Am. Jur. 2d Appellate Review § 81, at 709 appeal “within 30 days from the date on the clerk’s written notice of the Pursuant to Supreme Court Rule 7(1), an appellant must file a notice of

that the probate court erred in adopting the estate plan drafted by Mulhern. Walker asserts that their current appeal is untimely insofar as it pertains to Supreme Court Rule 7. Because the guardians failed to appeal that order, estate plan was a “decision on the merits,” subject to mandatory appeal under the probate court’s October 19, 2005 order rejecting the guardians’ revised we must first address a preliminary matter. In his brief, Walker argues that their revised and final estate plans. Before reaching this argument, however, The guardians argue next that the probate court erred in rejecting both

III. Rejection of the Guardians’ Proposed Estate Plans

464-A:26-a clearly makes it the guardians’ responsibility. We, therefore, hold referee to independently draft an estate plan when the express language of RSA p. 9 9

way compels a contrary holding. probate court’s rejection of their revised estate plan. estate plan, we do not agree with the guardians that that mere invitation in any

revised estate plan “in part.” interpretation, the court’s order can be read as only rejecting the guardians’ “consistent with [Phi’s] cultural background and beliefs, [consistent with Phi’s] and different cause for future adjudication.”). Nor do we agree that, under any the evidence proffered at trial demonstrated that their final estate plan was rejecting their final plan. In essence, the guardians argue that the weight of us, we turn now to the guardians’ assertion that the probate court erred in Having determined that the guardians’ revised estate plan is not before

guardians’ appeal is untimely insofar as it raises questions concerning the court and describe, among other things, “the proposed discuss the issues mentioned in its order and “perhaps” submit an alternative which we review de novo). Accordingly, we agree with Walker that the language of RSA 464-A:26-a, III – which required the guardians to petition the (explaining how the interpretation of a trial court order is a question of law

of a judgment is not necessarily destroyed by reservation of another separable the order or moot or revise decisions embodied in the order. Thus, the finality litigation on the merits does not prevent finality if its resolution will not alter (“A question remaining to be decided after an order has been entered ending

While we acknowledge that the probate court also “invited” the parties to accept and approve” the will that was attached to the petition – and the express both the language of the guardians’ petition – which “request[ed] that the court noncompliance with the terms of the decree, that decree is final”). initiate some general estate planning proceedings. This is clearly evidenced by where no issue is left for future consideration except the fact of compliance or Am. Jur. 2d, have a particular estate plan adopted for Phi; they were not attempting to supra § 82, at 710 (2007) (explaining that “[a]s a general test, rejecting the guardians’ revised estate plan was a decision on the merits. See 4 by the court, see Germain, 137 N.H. at 84, the court’s October 1 p. 9 9, 2005 order proposed plan, and that issue is entirely separate from those later considered severable from those in the court’s order). all that was before the probate court was the adoption or rejection of the seeking to have approved. RSA 464-A:26-a, III(a) (emphasis added). Because

the present case. In their October 7, 2004 petition, the guardians sought to The logic underlying our holding in Germain applies with equal force in

the issues that remained following the court’s order in that case were not of Safety, 145 N.H. 578, 585 (2000) (distinguishing Germain on the basis that

bifurcated issues remaining to be resolved were completely severable from that the court’s order constituted a decision on the merits because the p. 10 10

is not compelled to believe even uncontroverted evidence.” Restaurant the best position to measure the persuasiveness and credibility of evidence and engaging in this inquiry, we are guided by the rule that “[t]he trier of fact is in evidence presented at trial. In re Buttrick, 134 N.H. 675, 676 (1991). When by the probate judge, could be reasonably made, given the testimony” and the proceedings before the probate court to determine if the findings, as made reasonably made.” RSA 567-A:4 (2007). “Hence we must review the record of a[s] final unless they are so plainly erroneous that such findings could not be In so doing, we must accept “[t]he findings of fact of the judge of probate

plan on that basis. revised plan. Accordingly, we review the court’s rejection of the final estate distribution percentages that are substantially similar to those they used in the guardians have conceded in their brief that their final estate plan employed be made in” the revised estate plan. (Emphasis added.) At the same time, the against the percentages and manner in which the proposed distributions would but the weight of and preponderance of th[e] evidence presented would be and siblings of the ward, to generally reflect cultural norms and traditions . . . well support some nature, amount and manner of distribution to the parents Here, the probate court found in its October 19, 2005 order that “evidence may would be likely recipients of gifts from the ward.” RSA 464-A:26-a, V(a). the court based its decision”); see also In re Lisa H., 134 N.H. 188, 195 (1991). though “the record d[id] not clearly reveal the precise legal grounds upon which (quotation omitted) (upholding a trial court’s grant of directed verdict even necessary to support its decree,” Burns v. Bradley, 120 N.H. 542, 546 (1980) specific findings, the trial court is presumed to have made all findings N.H. 296, 304 (2002), and, as we have previously stated, “in the absence of fact or rulings of law, see RSA 567-A:4 (2007); see also In re Jonathan T., 148 However, this deficiency is not fatal because neither party requested findings of findings indicating upon what basis it was rejecting the guardians’ final will. from” Phi. RSA 464-A:26-a, V(a). We disagree. We note at the outset that the probate court did not make any express estate plan made distributions to family “who would be likely recipients of gifts erred because the preponderance of the evidence indicates that their final facilitate distribution of the ward’s estate to family, friends, or charities who testamentary distribution of the ward’s estate [that is proposed] will . . . other things, that the preponderance of the evidence demonstrates that “[t]he Before authorizing the guardian to so act, the probate court must find, among for the testamentary distribution of the ward’s estate.” RSA 464-A:26-a, I. ascertained, the probate court may authorize the guardian of the estate to plan As noted above, in cases such as this where a “ward’s wishes cannot be

requirements of RSA 464-A:26-a.” Thus, they assert that the probate court history of giving to her parents and siblings, and satisfied the fundamental heritage as a Buddhist.”

p. 11 Vietnamese tradition and continued her active participation in her religious Phi’s life. Phi, who unanimously agreed that Catherine was the most important person in

have elected to give such substantial sums to her parents and siblings over her

Vietnamese heritage with her daughter, . . . continued to cook in the asserted, and the probate court found, that Phi “was proud of and shared her perceived Phi to be “a traditional Vietnamese woman.” Finally, the guardians concern.” This testimony comports with that of all the witnesses who knew parents and her siblings back in Vietnam. In addition, Kelley testified that she that, following her separation from Walker, Catherine was “her primary Moreover, Roberge testified that Phi loved Catherine “more than anything” and that Phi “was trying to be an American . . . [and] be married to an American.”

evidence submitted by Walker in support of his argument that Phi would not That Catherine was Phi’s utmost concern is also consistent with the

testamentary wishes of Phi. similarly testified that Phi had, on several occasions, given money to both her and one of Phi’s acquaintances, Bao Chau Kelley. Both of these witnesses siblings. The guardians also called one of Phi’s co-workers, Barbara Roberge, herself Vietnamese and didn’t “want[] to give up her culture,” she also thought “usually on New Year’s” she would also make gifts of money to all of her However, Roberge stated that, while she believed that Phi considered

is not the general testamentary practices of an entire society, but rather the questionable upon cross-examination – we note that what is ultimately at issue the reliability and sufficiency of that evidence – which became more as being in accord with the Vietnamese culture and traditions. Even assuming evidence that Phi had consistently made gifts of money to her parents and that In an effort to demonstrate this connection, the guardians first submitted

have abided by those customs and traditions in choosing her beneficiaries. ultimately be shown, by a preponderance of the evidence, is that Phi would incapacitated ward’s testamentary wishes, it is not dispositive. What must religious or cultural traditions and customs may well be probative of an

Vietnamese attorneys that they contend supported their distribution formula presented at trial. Admittedly, the guardians submitted testimony from two percentages employed by the guardians is reasonable, based upon the evidence the preponderance of the evidence does not support the distribution After reviewing the record, we hold that the probate court’s finding that

and determin[e] the weight to be given evidence”). to “resolv[e] conflicts in the testimony, measur[e] the credibility of witnesses, 149 N.H. 774, 780 (2003) (explaining that the trial court is in the best position Operators, Inc. v. Jenney, p. 12 128 N.H. 708, 711 (1986); see also Cook v. Sullivan, 12

believed that she “would want her estate to go for the benefit of her daughter.” through her representation, Phi had become a friend of “the office” and Griffin she wanted everything she had for [C]atherine.” Finally, Griffin concluded that,

beneficiary in that policy because her “repeated statement and desire was that

BRODERICK, C.J., and DALIANIS, J., concurred.

probate court’s rejection of the guardians’ final estate plan. Barbara Griffin. Griffin explained that Phi had designated Catherine as her purview of the trial court to weigh the evidence). Therefore, we affirm the also called the attorney who had represented Phi in her divorce proceeding, Restaurant Operators, Inc., p. 12 128 N.H. at 711 (explaining that it is within the life insurance policy, which was her only substantial asset at the time. Walker erroneous . . . [that it] could not be reasonably made.” RSA 567-A:4; see also in which the guardians are attempting to dispose of Phi’s estate is “so plainly court’s finding that the record does not support the “percentages and manner” In light of all of the foregoing evidence, we cannot hold that the probate

separation, Phi had designated Catherine as the sole beneficiary of her $20,000 only daughter. For instance, Walker submitted evidence that, following their