2024-0001
N.H.Nov 25, 2024Background
- The case involves a dispute over a purported amendment to the Omega Trust by the settlor before his death, reflected in emails with his attorney.
- David J. Apostoloff (petitioner) sought to validate the email exchange as an enforceable amendment to the trust under RSA 564-B:6-602(c).
- The trust’s terms required any amendment or modification to be made by filing notice with the trustee, and for amendments to be executed by the settlor.
- Following an earlier reversal and remand (In re Omega Trust, 175 N.H. 179 (2022)), the trial court conducted an evidentiary hearing on whether the emails met the statutory requirements for amendment.
- The trial court found the email exchange did not present clear and convincing evidence of the settlor’s final intent to amend, nor did it constitute substantial compliance with the amendment procedure.
- Apostoloff appealed, asserting the settlor’s intent and actions sufficed to effect amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the emails manifest clear and convincing evidence of intent to amend? | Apostoloff: The settlor’s email edits and circumstances (imminent death) showed final amendment intent. | Respondent: Emails were preliminary; settlor was still revising; not a final decision. | No; emails lacked definitive, final intent. |
| Was there substantial compliance with amendment procedure (notice to trustee)? | Apostoloff: Telling the trustee of intent was substantial compliance with the trust’s required method. | Respondent: No formal notice or signed document given to trustee as required. | No; no substantial compliance was shown. |
| Was it error for the trial court to find lack of proof? | Apostoloff: Clear and convincing evidence standard was satisfied by the facts. | Respondent: Evidence was equivocal; practices suggested more changes were likely. | No error; evidence supported trial court’s findings. |
| Should the court reverse the trial court's factual findings? | Apostoloff: Findings contrary to record and intent. | Respondent: Findings were supported and not plainly erroneous. | No; findings were not plainly erroneous. |
Key Cases Cited
- In re Omega Trust, 175 N.H. 179 (N.H. 2022) (establishing that expression of intent to amend by email could be a valid amendment method if intent is clearly proven)
- In re Keeler Maintenance Fund at Dartmouth College, 176 N.H. 87 (N.H. 2023) (findings of fact are final unless plainly erroneous)
- Kibbe v. Town of Milton, 142 N.H. 288 (N.H. 1997) (defining substantial compliance doctrine in statutory interpretation)
- Barcomb v. Herman, 116 N.H. 318 (N.H. 1976) (substantial compliance addresses minor deviations from procedural requirements)