Congratulations to Frank Kenison and Bridget Denzer on their big win in Bonanno v. Bonanno and many thanks to them for sharing Judge David King’s Final Order, which is a great primer on NH law governing trust contests on undue influence and other grounds. In these cases, the alleged undue influencer almost always was in a confidential or fiduciary relationship with the settlor and, under NH law, therefore, has the burden of proving the absence of undue influence. Some of the trial decisions have raised the question of whether the alleged undue influencer’s burden on this issue should be measured by the clear and convincing evidence standard, rather than the traditional lower standard of preponderance of the evidence. Citing the NH Supreme Court’s unpublished decision in In re Estate of Amy Marjorie Patnaude (June 29, 2018), Bonanno further confirms that, when the burden of proof shifts to the alleged undue influencer, the quantum of proof is preponderance of the evidence. I recommend counsel considering or handling an undue influence case carefully read Bonnano.
(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at alexandra.cote@mclane.com.)