In re The Omega Trust
281 A.3d 1281
N.H.2022Background
- Grantor Mark Frank Douglas created the Omega Trust in 2005 and amended it twice in 2015.
- In July–August 2016 Douglas instructed his attorney (by email, with help from a trust protector) to prepare a "Third Amendment" to add trustees, protectors, and beneficiaries and to update related estate documents.
- The attorney confirmed he would draft revised documents; Douglas died on August 18, 2016 without signing any amendment.
- In 2019 petitioner David J. Apostoloff sought a judicial declaration that the email exchange with the attorney constituted a valid Third Amendment; a special trustee moved to dismiss.
- The circuit court dismissed, finding the emails did not substantially comply with the trust’s amendment formalities and did not provide clear and convincing evidence of intent to amend.
- The Supreme Court of New Hampshire reversed and remanded, holding that although the court need not decide substantial compliance, the petitioner sufficiently pled an alternative method under the Uniform Trust Code and that emails could, in principle, manifest the settlor’s intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the email exchange substantially complied with the trust's amendment formalities | Emails show clear instructions and attorney confirmation to prepare the Third Amendment, evidencing compliance | Trust requires executed amendments and notice to the trustee; past practice shows the grantor expected signed documents and trustee acknowledgment | Appellate court did not decide substantial compliance on the pleadings; left factual determination to trial |
| Whether the trust’s prescribed amendment method is exclusive (precluding other methods under UTC) | Trust terms do not make the method exclusive; other methods can apply under UTC §6-602(c)(2) | Trust language (use of "shall" and related clauses) and a no-contest clause mean the specified method is exclusive | Court held the trust did not expressly make the method exclusive; alternative methods remain available under UTC §6-602(c)(2) |
| Whether the emails constitute clear and convincing evidence of the settlor’s intent to amend | The instruction emails and attorney confirmations manifest the settlor’s intent to amend | Grantor was still awaiting final documents and making corrections; no final signed amendment existed, so intent not proved by clear and convincing evidence | Court held petitioner adequately pled facts that, if proven, could show clear and convincing evidence; factual determination left to trial |
Key Cases Cited
- Elter-Nodvin v. Nodvin, 163 N.H. 678 (2012) (standard for accepting pleaded facts on appeal from dismissal)
- Automated Transactions, LLC v. Am. Bankers Ass’n, 172 N.H. 528 (2019) (standard of review for motions to dismiss)
- Hodges v. Johnson, 173 N.H. 595 (2020) (statutory construction principles governing interpretation of the Uniform Trust Code)
- King v. Onthank, 152 N.H. 16 (2005) (settlor’s intent is a factual question for the trier of fact)