2008-849 & 2008-919, IN RE WILL AND ESTATE OF DAVID J. BOURASSA

reverse.

and his wife, Toni Lynn Bourassa, were divorced in 1996. The divorce decree

proceeds of the decedent’s life insurance policy to his five daughters. We

(

The record supports the following facts. The decedent, David Bourassa,

against her father’s estate, and an order of the superior court awarding the court granting Desiree Bourassa’s petition for extension of time to file suit Beck, the fiancée of decedent David Bourassa, appeals an order of the probate McHugh, J.) and the Rockingham County Probate Court (Hurd, J.). Deborah BRODERICK, C.J. This is a consolidated appeal from the Superior Court

brief and orally), for Deborah Beck. Michael E. Chubrich P.A., of Portsmouth (Michael E. Chubrich on the

Murphy on the brief and orally), for Desiree Bourassa & a. Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Kenneth D. to press. Errors may be reported by E-mail at the following address:

No. 2008-919 page is: http://www.courts.state.nh.us/supreme. Rockingham

No. 2008-849 editorial errors in order that corrections may be made before the opinion goes Rockingham County Probate Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 no agreement was reached.

p. 2 one-year statute of limitations applicable to claims against estates,

proceeds. The negotiations continued sporadically until March 12, 2007, but ruled that the term “children,” as used in the divorce decree, meant “offspring”

previously been granted leave to intervene, filed a motion to dismiss raising the

extension of time. late September 2008, the probate court granted Desiree’s request for an required.” In late June, the superior court denied Beck’s motion to dismiss. In 2

negotiating a settlement of the estate including entitlement of the life insurance the claims of the four eldest daughters were not time-barred. The court also beneficiary of the life insurance policy. In early December, the parties began eldest daughters, three of whom had reached majority, that Beck was the sole breach of the obligations by David Bourassa.” In May 2008, Beck, having life insurance policy proceeds that would have been paid to them but for the suit in superior court against the estate, seeking to recover “the amount of the

superior court action had been “filed approximately one month after the time

claim against the estate, the statute of limitations was four years and, thus, because the action regarding the proceeds of the insurance policy was not a Danielle, Devin, Dayna and Desiree. probate court. On September 26 the executor notified David Bourassa’s four A bench trial was held in superior court in October. The court ruled that the contingent beneficiaries. In 1992, the couple had four minor children,

administration of David Bourassa’s estate, the four eldest daughters brought Beck had a child, Katherine Bourassa.

petition, Desiree explained that an extension was necessary because the petition, after the fact, for extension of time to file suit in superior court. In her 556:5 (2007). In response, Desiree, for herself only, filed in the probate court a

On August 18 his will was allowed and letters testamentary were issued by the Toni Lynn Bourassa as the primary beneficiary and the “children of insured” as

On September 24, 2007, over thirteen months after the grant of of his property to his four children in equal shares. In February 2002, he and

On August 16, 2006, David Bourassa died in a motor vehicle accident. Life Insurance Company in the principal amount of $150,000. The policy listed insured under a life insurance policy issued in 1992 by Alexander Hamilton such policies for the benefit of the children.” At that time, David Bourassa was Bourassa. In October 2000, David Bourassa executed his will, bequeathing all the contingent beneficiaries from his four children to his brother, Gary under the life insurance policy from Toni Lynn Bourassa to Deborah Beck, and In February 1999, David Bourassa changed the primary beneficiary

insurance policies” and to “designate a trustee to receive the proceeds of any contained a provision requiring the parties to maintain “any and all life appeal followed.

p. 3 Superior Court and this Court’s rational[e] for its decision is sound.” This

because “the Probate Court ha[d] authorized this case to be brought in year statute applied, but refused to reconsider its decision on the merits trial court granted Beck’s motion to the extent it acknowledged that the one-

under the policy. Therefore, she argues, because the claim is one for money of the insured.”

within one year was the result of “culpable neglect” under RSA 556:28. The

under RSA 556:5. failed to request an extension under RSA 556:28, their action was time-barred 3

policy proceeds because she should have been named as a primary beneficiary recover her proportionate share of the policy proceeds because she was a “child

the life insurance proceeds because her delay in filing suit against the estate suit; (3) whether the probate court denied her due process of law by issuing a whether the probate court erred by granting Desiree an extension of time to file

for extension of time to file suit against the estate. Because the other sisters

exercised its discretion by depriving her of the life insurance proceeds. nature of the claim is one against the estate in the amount of the life insurance after he had obtained the life insurance policy, that child was also entitled to jurisdiction to enter an order under RSA 556:28. Desiree contends that the further ruled that because David had a child with Beck born before he died but living person are not probate assets,” the probate court lacked subject matter change, which named Beck as the primary beneficiary, was void. The court Beck first argues that “[b]ecause life insurance proceeds payable to a time-barred. She also argued that it was error to award Desiree any portion of permission to extend the one-year statute of limitations, that their action was jurisdiction to extend the time to file suit for purposes of RSA 556:28; (2) RSA 556:5 did not apply and, because the three eldest daughters never sought

We note at the outset that Desiree was the only daughter to file a petition

insurance beneficiaries; and (5) whether the superior court unsustainably interpreted the divorce decree to deny the decedent his right to change his life sua sponte order under RSA 556:28; (4) whether the superior court erroneously

that he had no authority to change the beneficiaries; therefore, the 1999

Beck raises five issues: (1) whether the probate court had subject matter erred as a matter of law in ruling that the one-year statute of limitations in

obligation to maintain the policy for the benefit of his children. The court ruled because it had granted the divorce, and David Bourassa had the ongoing that the life insurance policy was under the control of the superior court Beck filed a motion for reconsideration, arguing that the trial court had

to the language in the divorce decree regarding life insurance, the court found and therefore the term did not refer only to the decedent’s minor children. As of the claim for purposes of the petition for an extension of time to file suit.

p. 4 Accordingly, the probate court had subject matter jurisdiction over the nature and expeditious settlement of estates.” filing and prosecuting the claim to a date certain . . . . claim within the time limited by law, it may extend the time for culpable neglect in not bringing or prosecuting his or her suit or

within the exclusive jurisdiction of the probate court pursuant to RSA 547:3. owed in the amount of the life insurance policy, and that such a claim falls administration . . . .” The purpose of this provision “is to secure the orderly matter of law.” “nature of the claim” at issue is a claim against her father’s estate for money and equity require it, and that the claimant is not chargeable with

deceased, unless it is begun within one year next after the original grant of aside on appeal only if it is unsupported by the evidence or erroneous as a extension of time to file suit. RSA 556:28. We agree with Desiree that the be maintained against an administrator for any cause of action against the probate court to grant her the extension. RSA 556:5 provides: “No suit shall all the facts; and if the court shall be of the opinion that justice

Id.; see RSA 567-A:4 (2007) (findings of fact of the probate

553. “Like other findings of fact, a finding as to culpable neglect can be set court having subject matter jurisdiction over the nature of the claim” for an case constitutes culpable neglect is a question of fact for the trial court.” Id. at person with a claim against the estate of a deceased person “may apply to the “culpable neglect.” Desiree contends that it was proper and reasonable for the Cass v. Ray, Ex’r jurisdiction over the nature of the claim, by petition setting forth, 131 N.H. 550, 554 (1989). “Whether conduct in a particular sale, settlement, and final distribution of estates of deceased persons . . . .” A The burden is on the petitioner to demonstrate lack of culpable neglect. law, such person may apply to the court having subject matter See equity require an extension. person, which has not been prosecuted within the time limited by See Stewart v. Farrel, 131 N.H. 458, 461 (1989). demonstrating not only the absence of culpable neglect, but that justice and A petition for relief pursuant to RSA 556:28 must therefore set forth facts

extension of time to sue under RSA 556:28 because she was chargeable with and things of probate jurisdiction relating to the composition, administration, Whenever any person has a claim against the estate of a deceased

(1945). Pursuant to RSA 556:28:

Beck next argues that the probate court erred by granting Desiree an exclusive jurisdiction over . . . [t]he granting of administration and all matters

RSA 547:3 (Supp. 2008) provides: “The probate court shall have

had jurisdiction to grant her an extension of time to bring the claim. owed and not the actual proceeds of the life insurance policy, the probate court money.”

p. 5 okay and that [Beck] still was not planning on . . . claiming the insurance

parties traveled together to Disney World, “reinforcing that everything would be insurance proceeds. The affidavit further states that in December 2006, the one-sixth share of the estate, and that the daughters would get the life father’s estate in a timely fashion. Indeed, Desiree did not file a petition for

parties agreed that Beck and the five daughters would each be entitled to a life insurance proceeds. She failed, however, to bring a claim against her

file suit before the expiration of the statute of limitations. petition, prepared by Desiree’s sister, Devin, states that in October 2006, the statute of limitations expired. She offers no reason why her attorney failed to February 2007 to accomplish a settlement. An affidavit in support of the limitations expired, Desiree was aware that Beck claimed sole ownership of the were attempting to resolve the matter, and that a mediation was held in March 2007. Thus, from March 2007, five months before the statute of among themselves and by mediation, those attempts had broken down by early

represented by counsel by November of that year, nine months before the

that timely notice of her claim was given to the administrator, that the parties In addition, although the parties attempted to reach agreement informally

why her minority would toll the statute under these circumstances.

the administrator of her father’s estate was appointed in August 2006, she was

inactivity of creditors who slumber on their rights.” remained a minor during the one-year period during which suit was to be filed, limitations apply against minors unless statute expressly provides otherwise). v. Girl Scouts of the U.S.A., 150 N.H. 212, 214-15 (2003) (statutes of

meet deadlines and other procedural requirements). She also offers no reason may not generally have relief from the consequences of an attorney’s failure to

However, despite the fact that Desiree was only seventeen years old when

culpable want of watchfulness and diligence, the unreasonable inattention and appointment of the administrator in August 2006, she was a minor and

carelessness, improvidence or folly.” is, the neglect which exists where the loss can fairly be ascribed to his own seem to convey the idea of neglect for which the claimant was ‘to blame’; that

the standards of ordinary conduct, for the dormancy of the claim is found.”

than gross carelessness, but more than the failure to use ordinary care, it is Desiree’s petition for extension of time alleged that, at the time of the

brackets omitted).

(quotations omitted). “[W]e have further stated that ‘culpable neglect’ would

(quotations omitted). Culpable neglect “exists if no good reason, according to

In interpreting the term “culpable neglect,” we have stated that it is “less

reasonably made). judge are final unless so plainly erroneous that such findings could not be p. 6 6

RSA 55 p. 6 6:28 must be set aside as not supported by sufficient evidence. court’s order granting an extension to file suit in superior court pursuant to limitations set forth in RSA 556:5. We conclude, therefore, that the probate

otherwise “justice and equity” sustain it.

and need not address Beck’s remaining arguments. understand to provide good reason for the dormancy of a claim.”

father’s estate until nine months after the expiration of the one-year statute of

DALIANIS, DUGGAN and HICKS, JJ., concurred.

at 499. Accordingly, we reverse both the probate and superior courts’ orders, beyond the plaintiff’s or her counsel’s control of the kind we usually Cf. id.

limitations had expired. in failing to file a petition for extension of time to bring a claim against her Desiree failed to sustain her burden of demonstrating lack of “culpable neglect” 49 p. 6 6, 498 (2003). We hold that under the facts and circumstances of this case

at 554. If there is no good reason, according to the standards of ordinary

“There was no evidence of a mistake of law or fact or some circumstance

reach agreement had failed, and a full nine months after the statute of extension of time until May 27, 2008, a full fourteen months after attempts to