In re Estate of Barbara E. Colanton v. Brenda Grant

Whether the Circuit Court correctly applied the preponderance of the evidence standard to find that Barbara Colanton’s will and the Second Amendment to the Barbara E. Colanton Trust, both signed on September 11, 2015, were validly executed without undue influence.

The Statement of the Case presented in the Appellant’s brief is a generally accurate summary of the facts and issues involved in this appeal. However, the Appellant incorrectly states that the Circuit Court concluded that a “presumption” of undue influence arose by virtue of the Appellee Brenda Grant’s confidential relationship with her mother, the decedent Barbara Colanton. Rather, the Circuit Court found that an inference of undue influence arose due to the fiduciary or confidential relationship Brenda had with Barbara.

New Hampshire law recognizes a strong public policy in favor of protecting the right of each person to determine the objects of their bounty and dispose of their assets after death, free from community comment or judgment. As a result, the law presumes that a will or trust formally executed by a competent person is free from undue influence, and the proponent of the instrument is not required to offer affirmative proof of the absence of undue influence.

However, where the person receiving the bequest or distribution under the instrument has acted in a fiduciary capacity or is in a confidential relationship with the grantor, an inference of undue influence arises, and the beneficiary has the burden of proving an absence of undue influence. In recent years, at least three Circuit Court judges have expressed uncertainty as to what quantum of proof is required of the party bearing the burden of proving the absence of undue influence. Looking to case law from other jurisdictions, these judges have suggested that it could be appropriate to require proof of the absence of undue influence by clear and convincing evidence. Nevertheless, in every case where the issue has arisen, the Circuit Court judges have consistently applied the generally accepted burden of proof in civil matters—preponderance of the evidence. As explained herein, the Appellee submits that the balancing of competing policies supports the continued application of the preponderance of the evidence standard in undue influence cases involving fiduciary or confidential relationships. Dispensing with the presumption of validity and requiring the proponent of the instrument to prove the absence of undue influence by a preponderance of the evidence sufficiently protects vulnerable testators/grantors and their intended beneficiaries while still honoring the right of persons to determine how they want to dispose of their assets without judgment. If, however, the Court is inclined to announce a new rule and impose a different standard of proof, the Appellee submits that such a rule should only be applied prospectively.

As a starting point, New Hampshire law “presumes the absence of undue influence upon proof of the voluntary, formal execution of the will [or trust] by a competent testator [or grantor] and … in the absence of circumstances arousing suspicion, the proponent of the will [or trust] is not required to offer express affirmative proof of the absence of undue influence.” Albee v. Osgood, 79 N.H. 89, 92 (1918); Gaffney v. Coffey, 81 N.H. 300, 306 – 07 (1924). However, when the beneficiary of the challenged instrument is acting in a fiduciary capacity, or has a confidential relationship with the testator or grantor, that beneficiary has the burden of proving an absence of undue influence. Archer v. Dow, 126 N.H. 24, 28 (1985); Edgerly v. Edgerly, 73 N.H. 407, 408 – 09 (1905). This is because an “inference of undue influence … arises in cases where the beneficiary of a transfer holds a position of trust and confidence with the party making the transfer.” Archer, 126 N.H. at 28. “[W]henever it appears that the donor was dependent upon or under the control of the donee, and that the latter took an active part in procuring the gift, it may be inferred that the gift was procured by undue influence.” Edgerly v. Edgerly, 73 N.H. 407 (1905). Throughout her brief, the Appellant consistently, and erroneously, states that there is a “presumption” of undue influence in cases where the beneficiary of a will or trust had a confidential relationship with the testator or grantor. This is incorrect. New Hampshire law clearly provides that the existence of a fiduciary or confidential relationship merely gives rise to an inference, and not a presumption, of undue influence. Patten v. Cilley, 67 N.H. 520, 528 – 29 (1894) (“Inferences of fact may be drawn against a confidential agent in cases like this, but there is no presumption of law against the agent…”) (emphasis added). See also Estate of Webber, No. 318-2021-ET-01509 (N.H. Cir. Ct. Aug. 20, 2015) at App’x II – 11; In re Alice Steadman 1989 Trust 2013 Restatement, No. 312-2014-EQ-00108 (N.H. Cir. Ct. Oct. 27, 2015) at App’x II – 76; Stompor v. Stompor, No. 317-2007-EQ-00896 (N.H. Cir. Ct. Feb. 9, 2016) at App’x II – 117; Allen v. Allen, No. 316-2020-EQ-02135 (N.H. Cir. Ct. Dec. 22, 2023) at App’x II – 281.

This is not a meaningless distinction. The New Hampshire Supreme Court has deliberately differentiated between the presumption of the absence of undue influence when a will or trust is voluntarily and formally executed by a competent testator or grantor and the inference of undue influence in cases where the beneficiary has a confidential relationship with the testator or donor. See Webber, No. 318-2021-ET-01509 at App’x II – 14 n.7 (noting that, while cases from other jurisdictions refer to a presumption of undue influence, “the New Hampshire Supreme Court specifically decided that a confidential relationship and benefit creates an inference of undue influence”) (emphasis added).

In this case, the Circuit Court found that Brenda was in a fiduciary or confidential relationship with her mother, Barbara, and therefore, Brenda bore the burden of proving a lack of undue influence over Barbara. Final Order, App’x I – 51.1 After observing what the Circuit Court found to be a lack of clarity in existing New Hampshire law on the quantum of proof by which Brenda was required to show an absence of undue influence, the Circuit Court ruled that she was required to make the showing by a preponderance of the evidence. Final Order, App’x I – 47. The Circuit Court found that Brenda met this burden and ruled that the estate plan was not the product of undue influence. Final Order, App’x I – 60. The Circuit Court also observed, however, that if this Court were to find that a clear and convincing standard should have been applied, Brenda would not have met that standard, and the Circuit Court would have ruled in favor of Gail. Final Order, App’x I – 60.

As explained below, the Circuit Court appropriately applied the preponderance of the evidence standard, and correctly found that Brenda had met that burden.

1 As noted by Judge Cassavechia in other cases, some jurisdictions have not applied this burden-shifting rule in instances where the confidential relationship exists between the testator/grantor and one of his or her children, who would normally be considered to be the natural objects of a parent’s bounty. Webber, No. 318-2021-ET-01509 at App’x II – 15; Steadman, No. 312-2014-EQ-00108 at App’x II – 80; Stompor, No. 317- 2007-EQ-00896 at App’x II – 121 (all citing Berkowitz v. Berkowitz, 162 A.2d 709, 711 (Conn. 1960). New Hampshire has never adopted this exception, Steadman, No. 312-2014-EQ-00108 at App’x II – 77 n.10, but it is a noteworthy approach, and weighs in favor of a lesser quantum of proof, especially in cases like this one, where the primary beneficiary of the challenged estate plan is a child of the decedent, and therefore a natural object of bounty.

a. Some Circuit Court Judges have found ambiguity in the law on the quantum of proof required of fiduciaries in undue influence cases At least three Circuit Court judges have expressed uncertainty as to the appropriate quantum of proof to be applied in cases where the proponent of a will or trust bears the burden of proving the absence of undue influence. (Cassavechia, J.)—Webber, No. 318-2021-ET-01509 at App’x II – 12; Steadman, No. 312-2014-EQ-00108 at App’x II – 77; Stompor, No. 317-2007-EQ-00896 at App’x II – 118; Allen, No. 316-2020- EQ-02135 at App’x II – 282; (King, J.)—Estate of Beliar, No. 316-2015- EQ-02295 (N.H. Cir. Ct. Dec. 23, 2016) at App’x II – 181; (Weaver, J.)— Estate of Barbara E. Colanton, No. 318-2021-ET-00476 (N.H. Cir. Ct. Jun. 15, 2023) at App’x I – 47; Savino v. Estate of Sally Dunham, et al., No. 318-2021-EQ-00702 (N.H. Cir. Ct. Jan. 12, 2023) at Grant App’x I – 044 – 045.

This uncertainty arises from a lack of clear direction from this Court or the Legislature on what quantum of proof should be used, and an apparent ambiguity in the holdings of this Court’s cases. In Webber, Judge Cassavechia noted that this Court held in the undue influence case Gaffney v. Coffey that “if the jury should find upon a consideration of the conflicting testimony upon this issue that a condition of even balance of the evidence has been reached, the proponent of the will has failed to maintain the ultimate burden of proof which is his from the beginning to the end of the trial.” Webber, No. 318-2021-ET-01509 at App’x II – 12 – 13 (quoting Gaffney v. Coffey, 81 N.H. 300 (1924)). Judge Cassavechia also observed that in the incapacity case Estate of Washburn, this Court held that if a party contesting a will successfully rebuts the presumption of capacity by offering evidence of incapacity, the proponent of the will “must persuade the trial court, by a preponderance of all the evidence presented, that the testatrix possessed the requisite capacity to make the will.” Webber, No. 318-2021-ET-01509 at App’x II – 13 (citing In re Estate of Washburn, 141 N.H. 658, 663 (1997)).

Judge Cassavechia noted that these two holdings “would appear to support a determination that the evidentiary measure of persuasiveness required of a will/trust proponent where there is a confidential relation is by a preponderance.” Webber, No. 318-2021-ET-01509 at App’x II – 13. However, Judge Cassavechia noted that while the facts in Gaffney would have supported a finding of a confidential relationship, the Court made no such ruling, and therefore, in Judge Cassavechia’s view, it is uncertain whether the Court meant for the preponderance of the evidence standard to apply in cases where a fiduciary or confidential relationship exists. Id. Adding to the uncertainty for Judge Cassavechia and others is the fact that there is a split among other jurisdictions to have considered the issue. Webber, No. 318-2021-ET-01509 at App’x II – 14 – 15. See also 25 Am. Jur. 2d Duress and Undue Influence § 47 (collecting cases from other jurisdictions and noting that some require only a preponderance while others require clear and convincing evidence, and some may even require proof beyond a reasonable doubt). b. Despite any uncertainty, every Circuit Court Judge analyzing the issue has applied a preponderance of the evidence standard Notwithstanding any uncertainty as to whether preponderance of the evidence or clear and convincing is the better standard, and despite Judge Cassavechia’s stated preference for the latter, in each and every case that undersigned counsel has been able to find where a Circuit Court has faced this issue, the Circuit Court has applied the preponderance of the evidence standard.2 Webber, No. 318-2021-ET-01509 at App’x II – 16; Steadman, No. 312-2014-EQ-00108 at App’x II – 82; Stompor, No. 317-2007-EQ- 00896 at App’x II – 123; Estate of Beliar, No. 316-2015-EQ-02295 at App’x II – 181 – 182; Barker v. Rule, No. 318-2016-EQ-00967 (N.H. Cir. Ct. Dec. 8, 2017), App’x II – 233; Allen, No. 316-2020-EQ-02135 at App’x II – 284; Savino, No. 318-2021-EQ-00702 at Grant App’x I – 044 – 045; Estate of Barbara E. Colanton, No. 318-2021-ET-00476 (N.H. Cir. Ct. Jun. 15, 2023) at App’x I – 47.

While some in the bench and the bar would advocate for this Court to announce a new rule imposing a clear and convincing standard in these cases, there appears to be a clear recognition that, in the absence of such a pronouncement, the preponderance of the evidence standard is the current state of the law on this issue.3 2 Since Appellant’s brief contains no cites to any New Hampshire cases where the Court applied the clear and convincing standard, undersigned counsel assumes that she has not found any such cases either. 3 Interestingly, even when invited to weigh in on the issue, New Hampshire attorneys seem to have been reticent to advocate for a change in the law. In Despite the uncertainty Judge Cassavechia saw in the law, and what he viewed as good policy reasons for adopting a more stringent standard, in the absence of a clear directive, he decided that the best path was to follow the lead of the Florida court and “apply the ‘generally accepted burden of proof in civil matters’” which, in New Hampshire, is preponderance of the evidence. Webber, No. 318-2021-ET-01509 at App’x II – 16; Steadman, No. 312-2014-EQ-00108 at App’x II – 82; Stompor, No. 317-2007-EQ- 00896 at App’x II – 123 (all citing Hack v. Janes, 878 So.2d 440, 444 (Dist. Ct. App. Fl. 2004)). Ultimately, Judge Cassavechia determined that, “until informed otherwise by the Supreme Court or Legislature, [he] will apply the preponderance standard.” Barker, No. 318-2016-EQ-00967 at App’x II – 233 In light of what Judge King saw as a lack of clarity on the issue, he decided to “apply New Hampshire’s generally accepted quantum of proof in civil matters, preponderance of the evidence, ” rather than applying something that would be an exception to the general rule. Estate of Beliar, No. 316-2015-EQ-02295 at App’x II – 181 – 182.

Webber, the party who would have potentially benefitted from a higher quantum of proof nevertheless stated that the absence of undue influence merely must be shown by a preponderance of the evidence. No. 318-2021- ET-01509 at App’x II – 13. In Steadman, the parties conceded that the preponderance standard applied. No. 312-2014-EQ-00108 at App’x II – 82. And in Allen, the Court noted that neither party “assert[ed] or opine[d] on the issue.” No. 316-2020-EQ-02135 at App’x II – 284. All of this suggests a recognition on the part of at least a segment of the bar that preponderance of the evidence is the operative standard of proof, and that adoption of a clear and convincing standard would be a pronouncement of a new rule.

For Judge Weaver, applying the preponderance of the evidence standard is appropriate because this Court has clearly stated that in cases where a testator’s capacity has been challenged and the presumption of capacity has been rebutted by the contestant, the proponent of the estate plan is only required to show capacity by a preponderance of the evidence, and the law regarding capacity and undue influence are “similar enough” to justify treating them both the same. Savino, No. 318-2021-EQ-00702 at Grant App’x I – 044 – 045; Estate of Barbara E. Colanton, No. 318-2021- ET-00476 (N.H. Cir. Ct. Jun. 15, 2023) at App’x I – 47 (both citing Estate of Washburn, 141 N.H. 658, 663 (1997)).

The issue before the Court in this appeal involves a push and pull between two conflicting interests. The first is “the right of each person to determine the objects of their bounty free from community comment and/or judgment.” Webber, No. 318-2021-ET-01509 at App’x II – 16. The second is the “greatest jealousy” with which the law “watches … transactions and dealings between persons occupying a fiduciary relationship, in which the person in a position of influence receives some substantial benefit.” Allen, No. 316-2020-EQ-02135 at App’x II – 283 (citing Hendricks v. James, 421 So.2d 1031, 1042 (Miss. 1982)). In her brief, the Appellant describes this as “protecting the testamentary wishes of vulnerable donors and testators from those who use their positions of confidence and trust to enrich themselves.” Anderson Brief at 19. Both of these interests are legitimate, but if the proper balance between them is not maintained, the result will be that, at least in some cases, the true intention of the decedent will be defeated.

The Legislature has provided guidance on which of these interests should be prioritized. The Uniform Trust Code contains the following provision regarding “uniformity of application and construction” of trusts: In applying and construing this chapter, primary consideration shall be given to the preservation of the settlor’s intent as expressed in the terms of the trust. Secondary consideration shall be given to the following objectives, in no order of priority among them: (1) the protection of the interests of the beneficiaries consistent with the settlor's intent as expressed in the terms of the trust; (2) the promotion of certainty concerning the duties and liabilities of trustees, trust advisors, and trust protectors, including the division of those duties and liabilities among trustees, trust advisors, and trust protectors; and (3) the promotion of the efficient administration of a trust. Tertiary consideration may be given to the promotion of uniformity of the law with respect to its subject matter among states that enact the uniform act upon which this chapter is based. RSA 564-B:11-1101. This statutory provision makes clear that, at least with regard to trusts, the Legislature intends that the primary consideration be the preservation of the settlor’s intent as expressed in the terms of the trust. All other considerations are secondary or tertiary. See also Galloway v. Babb, 77 N.H. 259 (1914) (holding that “the fundamental purpose in the construction of a will is to give effect to the testator's intention as expressed by the language he chose to use” and noting that this principle is “so firmly established in this jurisdiction that a citation of authorities in its support is superfluous”).

Placing too high a burden of proof on the proponent of a will or trust creates a significant risk that a decedent’s true intention will be defeated in an attempt to “protect” the decedent. Rather, the interest of protecting vulnerable testators and donors from potential overreaching by those with whom they have a confidential or fiduciary relationship is already served by dispensing with the usual presumption of an absence of undue influence and requiring the proponent of the instrument to make a showing that there was no undue influence. Applying a preponderance of the evidence standard strikes the appropriate balance between respecting the decedent’s wishes as stated in the instrument while seeking to protect against potential overreaching by those closest to the decedent. See In re Swan’s Estate, 293 P.2d 682, 693 (Utah 1956) (holding that a rule requiring proof by a preponderance of the evidence “is more clear and understandable than the rule requiring clear and convincing evidence…[and] is more apt to produce a just result and is more generally recognized as the correct rule governing this situation”).

The Appellant has not offered a compelling reason why the Court should apply a different approach in undue influence cases than the approach it uses in capacity cases. In both instances, the default rule is a presumption in favor of validity absent facts giving reason to rebut the presumption. This Court has definitively stated that where the presumption of capacity has been rebutted, the proponent of the instrument need only show capacity by a preponderance of the evidence. Estate of Washburn, 141 N.H. 658, 663 (1997). As Judge Weaver has observed, “the law regarding determination of capacity [and] that of undue influence … are similar enough to support the use of preponderance of the evidence standard” in both types of cases. Savino, No. 318-2021-EQ-00702 Grant App’x I – 044 – 045; Estate of Barbara E. Colanton, No. 318-2021-ET- 00476 (N.H. Cir. Ct. Jun. 15, 2023) at App’x I – 47. This is also where the distinction that New Hampshire has drawn between an inference and a presumption of undue influence becomes significant. Since this Court has seen fit to specify that a confidential relationship and benefit creates only an inference of undue influence and not a presumption, as other jurisdictions have held, Webber, No. 318-2021- ET-01509 at App’x II – 14 n.7, it only makes sense to require that the proponent of the instrument meet the lesser burden of proving the absence of undue influence by a preponderance of the evidence.

Brenda believes that policy and practical considerations support this Court ratifying the approach applied by the Circuit Court in recent years of requiring proof of the absence of undue influence by a preponderance of the evidence. If, however, this Court is inclined to change the law in this area and announce a new rule requiring proof by clear and convincing evidence, Brenda suggests that such a rule be applied prospectively only. Generally, appellate decisions are presumptively retroactive in effect. This is usually because “by stating what the law is, the court merely states what the law always was.” Lee James Enterprises, Inc. v. Town of Northumberland, 149 N.H. 728, 729–30 (2003) (citing Hampton Nat’l Bank v. Desjardins, 114 N.H. 68, 73 (1974)). However, this Court has recognized that “retroactive application of judicial decisions at times can cause harsh results, when, consistent with the doctrine of stare decisis, parties have relied upon a prior rule of law.” Id. Therefore, in instances when “justice would be better served by doing so, ” this Court has applied its decisions prospectively. Id.

Here, if the Court were to announce a requirement of proof by clear and convincing evidence, it would be creating a new rule, and not merely “stat[ing] what the law always was” on this issue. The consistent use by Circuit Court judges of a preponderance of the evidence standard in these cases, see Section II above, and the apparent recognition by the bar that this is the current state of the law, see footnote 3 above, supports a finding that parties, fiduciaries, and estate planners have some reasonable reliance on the preponderance of the evidence standard applying, and a shift to a clear and convincing standard would be a significant change justifying prospective application of the new rule.

Accordingly, if the Court does decide to announce a new rule, Brenda asks that the Court apply the rule prospectively and that it leave Judge Weaver’s final order in this case intact.

The Circuit Court correctly applied the preponderance of the evidence standard to find that Brenda Grant had met her burden of proving that the Will and the Second Amendment to the Trust were validly executed without undue influence. Therefore, the Court should affirm the Circuit Court’s judgment in favor of the Appellee Brenda Grant. If, however, the Court decides to announce a new rule requiring proof of the absence of undue influence by clear and convincing evidence, it should make the rule prospective and still affirm the Circuit Court’s judgment in this case.

Brenda Grant respectfully requests a fifteen-minute oral argument to be presented by Attorney Adam M. Hamel.

I hereby certify that on February 16, 2024, I served the foregoing Brief on all counsel of record through the Court’s electronic filing system.