In re James D. Cook Revocable Trust

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0102, In re James D. Cook Revocable
Trust, the court on September 3, 2020, issued the following
order:

Having considered the brief and record submitted by the petitioners,
Marianne Cook and Concord Trust Company, LLC, as co-trustees of the James
D. Cook Revocable Trust, originally executed in 1970 and as amended on
February 19, 2016, the court concludes that oral argument is unnecessary in
this interlocutory transfer without ruling. See Sup. Ct. R. 9, 18(1).

The petitioners have initiated this uncontested action to modify the
subject trust pursuant to RSA 564-B:4-416 (2019) to correct scrivener’s errors.
The beneficiaries agree that the trust should be modified to correct these errors
so that the grantor’s undisputed tax objectives are effectuated. For the reasons
set forth in the petitioner’s brief, Paragraph B.3.a. of Article III and Paragraph
F. of Article V of the trust agreement are modified to read as follows:

Article III.

B.
3.
a. The Family Fund.

i. If the Grantor’s spouse survives the
Grantor and a federal estate tax is in effect at the Grantor’s
death, the Family Fund shall equal a sum equal to the
largest amount that can pass free of federal estate tax under
this Agreement by reason of any tax referred to in Code
§2001(b)(2) and the applicable credit amount (unified credit)
allowable to the Grantor’s estate, but no other credit, and
after taking account of the Grantor’s adjusted taxable gifts
and any reduction in them pursuant to Treas. Reg.
§25.2701-5, and property passing outside of this Agreement
(whether by the Grantor’s will or otherwise) that is
includable in the Grantor’s gross estate and does not qualify
for the marital or charitable deduction (and is not required to
pay state death taxes), and after taking account of charges to
principal that are not allowed as deductions in computing
the Grantor’s federal estate tax. In establishing the sum
disposed of by this Section, the values finally determined in
 the federal estate tax proceeding relating to the Grantor’s
estate shall be used. Any assets distributed in kind to satisfy
such sum shall be valued at their date or dates of
distribution values.

ii. The Trustee shall hold the Family Fund
IN TRUST, under the terms and conditions described in
Paragraph C. of this ARTICLE. The Grantor intends, by the
foregoing provisions of this Paragraph defining the Family
Fund, to create a formula pecuniary gift, and not a formula
fractional share gift, and the Trustee shall, in allocating
assets to the Family Fund, first select assets (or proceeds
thereof) that do not qualify for the federal estate tax marital
deduction.

Article V.

F. Any Trustee serving hereunder may be removed, with or
without cause, by the Grantor, if the Grantor is living and
competent. Whenever the Grantor is not living or competent, the
persons designated below (the “Removal Powerholder”) shall have
the power to remove the Trustee designated below, at any time and
for any reason.

1. During the lifetime of the Grantor’s spouse, any
Trustee of a trust being administered under Paragraph C. of
ARTICLE III hereof (the Family Trust) or Paragraph D. of ARTICLE
III hereof (the Marital Trust) may be removed by the Grantor’s
spouse, if she is competent, or if not, by her legal representative.

2. Any Trustee of a trust being administered under
Paragraph F. of ARTICLE III hereof (trusts for beneficiaries younger
than 25) may be removed, at any time and for any reason, by the
current beneficiary of the subject trust. If any such beneficiary is
a minor or not competent, such beneficiary shall be represented by
his or her natural guardian, if any, otherwise by the guardian of
his or her estate, if any, otherwise by his or her legal
representative.

3. The removal of a Trustee shall be accomplished by
an instrument signed by the Removal Powerholder and mailed or
delivered to such Trustee and the person(s) authorized to appoint a
successor Trustee. Such removal shall become effective only upon
the written acceptance of a successor Trustee, if the vacancy
caused by such removal is required to be filled. Upon removal of
any Trustee, a successor Trustee shall be appointed as provided in

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 Paragraphs B. and C. of this ARTICLE; provided, however, that if
the Removal Powerholder is the person authorized to appoint a
successor Trustee, then such successor Trustee shall not be the
Removal Powerholder, or related or subordinate [within the
meaning of Code §672(c)] to the Removal Powerholder (or the
beneficiary that the Removal Powerholder represents, if
applicable); and provided, further, that no Trustee shall take part
in any decision to remove himself, herself or itself.

These modifications are retroactive to the date on which the trust was
last amended, February 19, 2016.

So ordered.

Hicks, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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