Proving Your Will and Trust During Your Lifetime

Attorney Alyssa Graham

August 2014

On July 11, 2014, Governor Maggie Hassan signed into law a bill which amends the laws in New Hampshire relating to Wills and Trusts. The new law, Senate Bill 289, includes among its provisions a process for you to prove your Will and to determine the validity of your Revocable Trust during your lifetime. Previously, the process of proving a Will or establishing the validity of a Revocable Trust could only occur after death or when your Trust became irrevocable, in the event of your incapacity. The new law allows you to petition the court, now, while you are alive, to have the court predetermine the validity of your Will and Trust.

The processes for proving a Will and having the court determine the validity of a Trust are quite similar. In order to be eligible to initiate the proceeding to prove your Will you must either be a New Hampshire resident or own real estate in New Hampshire. To have a New Hampshire court determine the validity of a Trust, the Trust must be a New Hampshire Trust, meaning the Trust is governed by the laws of New Hampshire. In both cases, you will need to notify the 'œinterested' parties of the proceedings in the court. The interested parties include: your spouse (if you are married); your heirs (those individuals who would inherit your estate if you died without a Will, i.e. your family members); the beneficiaries under the terms of the Will or the qualified beneficiaries of the Trust; the Executors nominated in the Will or the Trustees of a Trust. If the Will or Trust leaves a gift to one or more charitable organizations, then the Director of Charitable Trusts must also be notified. If you go through the process having your Will proved and Trust determined valid, you can still make further modifications, however, any modifications you make will not enjoy the same protection. So, you would need to go through the process of proving the Will or the Trust again, if you wanted to ensure those modifications were given the same protection.

The law requires a Will be proven 'œin solemn form.' This means the burden of proof is on you to prove the Will is valid. You need to show that all the elements of a valid Will have been satisfied, including its proper execution and your knowledge of the provisions of the Will. If someone challenges your capacity, you need to prove you have the required capacity to create the Will. Presumably, the same burden would be on an individual seeking to have a Trust declared valid, although the law is silent on this matter.

After going through the process of proving your Will, when you die, the Will will be admitted to probate and conclusively deemed proved, and the Trust will be deemed valid.

For most people, this admittedly is not something that will likely be worth the trouble. A majority of Wills and Trusts are probated and administered according to their terms with no challenge to the documents. There is no requirement that you seek validation of your Will or Trust. The 2014 law specifically provides that the failure to commence a judicial proceeding is not evidence that the Will or Trust is invalid for any reason.

However, in some families after someone dies, there can be a long drawn out battle over the documents and their validity. If you are concerned this may occur after your death you may want to consider taking advantage of the new law. Previously, questions of whether a document was valid had to be determined after the death of the principal witness (you). The new law allows you to validate your estate planning documents while you are alive, and thus, available to the court for any questions.

An alternative, if you are concerned about potential challenges to your documents but do not wish to go to court, is still to include in your documents a No Contest clause or 'œin terrorem' clause. No Contest clauses in both Wills and Trusts are specifically authorized by statute and provide that a beneficiary will be disqualified from inheriting if the beneficiary challenges the Will or Trust. These clauses can provide a deterrent for a beneficiary from challenging documents. However, if an individual intends to disinherit someone completely, this may not provide a sufficient deterrent as the disinherited individual had nothing to lose by challenging the document.

While neither approach (court approval nor a No Contest clause) can guarantee no fighting will occur after your death, these options may provide you greater peace of mind that your documents will be respected.

If you want the provisions of your estate plan upheld, even if the beneficiaries are not happy, then we would be happy to meet with you to discuss whether you should consider adding a Non-Contest clause or proving your Will or your Trust during your life.

On July 11, 2014, Governor Maggie Hassan signed into law a bill which amends the laws in New Hampshire relating to Wills and Trusts. The new law, Senate Bill 289, includes among its provisions a process for you to prove your Will and to determine the validity of your Revocable Trust during your lifetime. Previously, the process of proving a Will or establishing the validity of a Revocable Trust could only occur after death or when your Trust became irrevocable, in the event of your incapacity. The new law allows you to petition the court, now, while you are alive, to have the court predetermine the validity of your Will and Trust.

The processes for proving a Will and having the court determine the validity of a Trust are quite similar. In order to be eligible to initiate the proceeding to prove your Will you must either be a New Hampshire resident or own real estate in New Hampshire. To have a New Hampshire court determine the validity of a Trust, the Trust must be a New Hampshire Trust, meaning the Trust is governed by the laws of New Hampshire. In both cases, you will need to notify the 'œinterested' parties of the proceedings in the court. The interested parties include: your spouse (if you are married); your heirs (those individuals who would inherit your estate if you died without a Will, i.e. your family members); the beneficiaries under the terms of the Will or the qualified beneficiaries of the Trust; the Executors nominated in the Will or the Trustees of a Trust. If the Will or Trust leaves a gift to one or more charitable organizations, then the Director of Charitable Trusts must also be notified. If you go through the process having your Will proved and Trust determined valid, you can still make further modifications, however, any modifications you make will not enjoy the same protection. So, you would need to go through the process of proving the Will or the Trust again, if you wanted to ensure those modifications were given the same protection.

The law requires a Will be proven 'œin solemn form.' This means the burden of proof is on you to prove the Will is valid. You need to show that all the elements of a valid Will have been satisfied, including its proper execution and your knowledge of the provisions of the Will. If someone challenges your capacity, you need to prove you have the required capacity to create the Will. Presumably, the same burden would be on an individual seeking to have a Trust declared valid, although the law is silent on this matter.

After going through the process of proving your Will, when you die, the Will will be admitted to probate and conclusively deemed proved, and the Trust will be deemed valid.

For most people, this admittedly is not something that will likely be worth the trouble. A majority of Wills and Trusts are probated and administered according to their terms with no challenge to the documents. There is no requirement that you seek validation of your Will or Trust. The 2014 law specifically provides that the failure to commence a judicial proceeding is not evidence that the Will or Trust is invalid for any reason.

However, in some families after someone dies, there can be a long drawn out battle over the documents and their validity. If you are concerned this may occur after your death you may want to consider taking advantage of the new law. Previously, questions of whether a document was valid had to be determined after the death of the principal witness (you). The new law allows you to validate your estate planning documents while you are alive, and thus, available to the court for any questions.

An alternative, if you are concerned about potential challenges to your documents but do not wish to go to court, is still to include in your documents a No Contest clause or 'œin terrorem' clause. No Contest clauses in both Wills and Trusts are specifically authorized by statute and provide that a beneficiary will be disqualified from inheriting if the beneficiary challenges the Will or Trust. These clauses can provide a deterrent for a beneficiary from challenging documents. However, if an individual intends to disinherit someone completely, this may not provide a sufficient deterrent as the disinherited individual had nothing to lose by challenging the document.

While neither approach (court approval nor a No Contest clause) can guarantee no fighting will occur after your death, these options may provide you greater peace of mind that your documents will be respected.

If you want the provisions of your estate plan upheld, even if the beneficiaries are not happy, then we would be happy to meet with you to discuss whether you should consider adding a Non-Contest clause or proving your Will or your Trust during your life.