Q: Citing trust provisions empowering him to mortgage real
estate, the trustee contends that he has the discretion to mortgage
trust property. Is the trustee right?
A: The trustee is making a common mistake. He is
conflating his powers with his duties. Trusts, often in
lengthy boilerplate provisions, grant trustees broad powers over
trust property. The fact that the trust empowers the trustee
to mortgage property does not mean he can do so without
liability. Powers are tools a trustee may employ only in
keeping with his or her fiduciary duties. See RSA
564-B:8-815(b). Whether the trustee may mortgage trust
property depends on whether the transaction will further the
interests of the beneficiaries (the duty of loyalty, RSA
564-B:8-802), give due regard to any differing interests of the
beneficiaries (duty of impartiality, RSA 564-B:8-803), and be
consistent with standards of due care (duty of prudent
administration, RSA 564-B:8-804).
Q: The will omits to mention the testator's daughter,
but nominates her husband, the testator's son-in-law as
executor, evidencing that the testator was aware of his
daughter. Can she recover as a pretermitted heir?
A: While the nomination of the son-in-law as executor would
appear to make it clear that the omission of the daughter as a
beneficiary was purposeful, the law limits the inquiry to the
express terms of the will. Because she was not referenced by
name or description, the daughter is entitled to her intestate
share as a pretermitted heir. In re Estate of Treloar, 151
N.H. 460 (2004).
RSA 551:10 provides:
Every child born after the deceased of the testator, and every
child or issue of a child of the deceased not named or referred to
in his will, and who is not a devisee or legatee, shall be entitled
to the same portion of the estate, real and personal, as he would
be if the deceased were intestate.
Any child born after the death of the testator is entitled to
relief under the statute. A child or issue of a child not
referenced in a Will is likewise entitled to his or her intestate
share.
Application of the statute to the facts of a given situation
requires review of the case law, which is summarized below:
Claimant Not Named As Will Beneficiary
Situation
Pretermitted?
Authority
Child
Child's Child (Grandchild of Testator) Was Referenced in
Will
Yes
Gage v. Gage, 29 N.H. 533 (1854)
Child
Child Was Named as Husband of a Legatee
No
Boucher v. Lizotte, 85 N.H. 514 (1932)
Child
Will Referred to "Children"
No
Smith v. Smith, 72 N.H. 168 (1903)
Child or Grandchild
Will Referred to "Heirs" or "Next-of-
Kin"
Yes
In re Estate of MacKay, 121 N.H. 682 (1981)
Child
Child Was Named in Will Provision Revoked by Most Recent
Codicil
No
In re Estate of Osgood, 122 N.H. 961 (1982)
Child
Child Was Named In Will Revoked by Most Recent Will
Yes
In the Matter of Jackson, 117 N.H. 898 (1977)
Child
Child was Named in trust That Will Expressly Excluded As Part of
the Estate
Yes
In re Estate of Came, 129 N.H. 544 (1987)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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