In re Estate of Colanton

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Brentwood Probate Division
Case No. 2023-0389
Citation: In re Estate of Colanton, 2024 N.H. 43

IN RE ESTATE OF BARBARA E. COLANTON

GAIL ANDERSEN

v.

BRENDA GRANT

Argued: April 23, 2024
Opinion Issued: August 14, 2024

Devine, Millimet & Branch, PA, of Manchester (David P. Eby, Marrielle
Van Rossum, and Richard P. Driscoll on the brief, and Richard P. Driscoll
orally), for the petitioner.

McLane Middleton Professional Association, of Woburn, Massachusetts
(Adam M. Hamel on the brief and orally), for the respondent.

COUNTWAY, J.

¶1 The petitioner, Gail Andersen, appeals a decision of the Circuit Court
(Weaver, J.) rejecting her challenges to a will and trust executed by her mother,
Barbara Colanton. The respondent, Brenda Grant, is also a daughter of
Colanton and is the executrix of Colanton’s will. We affirm.

¶2 The trial court found the following facts. Andersen and Grant are
the only children of Colanton and her husband, Frank Colanton. The
Colantons owned and operated two golf courses, one of which they eventually
sold, at which both Andersen and Grant worked during the 1990s. Following
their father’s death in 2000, Andersen and Grant had a falling out.

¶3 Colanton first established an estate plan with her husband in the
1990s and created the Barbara E. Colanton Trust (Trust) in 1994. In 1999,
she created the Colanton Real Estate Trust (Real Estate Trust), which held the
property on which the golf course was located. After her husband’s death,
Colanton revised her estate plan, including executing a new will and a
restatement to the Trust in 2001. In general, those documents provided for
Andersen and Grant equally and also made provision for Colanton’s
grandchildren — Andersen’s three children and Grant’s only child — in equal
shares. Another amendment to the trust in 2002 altered the disposition as
between Colanton’s children and grandchildren, but still generally treated the
members of each class equally.

¶4 In 2015, Colanton, then 83 years old, revised her estate plan again.
At issue here are the following changes recited by the trial court:

[Colanton] signed a new will on September 11, 2015. The Will
devises her entire estate to the Trust, and if the Trust no longer
exists, then to Brenda Grant. It specifically omits Gail Andersen.
At the same time, she signed an amendment to the Trust providing
that Brenda would receive 90% of the assets in the Trust, and Gail
would receive only 10%. The grandchildren were not provided for
in the new estate plan. The Real Estate Trust was not modified.

¶5 Colanton passed away in 2021 at the age of 88. Grant filed the will
and petition for estate administration with the court. Andersen filed a motion
in the probate case to re-examine the probate of the will. She also filed a
petition in equity challenging the 2015 Trust amendment and seeking an
accounting for the Trust. In both pleadings, Andersen alleged that at the time
the 2015 will and Trust amendment were executed, Colanton was suffering
from significant cognitive impairments and Grant exercised undue influence
over her. The cases were consolidated and tried together.

¶6 Following a six-day hearing, the trial court issued a final order. It
found that “Colanton had the legal capacity to execute the Will and the
remainder of her estate planning documents.” It further found that Grant was
in a fiduciary or confidential relationship with Colanton and, “as a result,
. . . ha[d] the burden to show a lack of undue influence on her.” In determining

2
the quantum of proof necessary to meet Grant’s burden, the court noted that
New Hampshire law was “not clear.” It ultimately concluded that the
preponderance of the evidence standard, rather than the clear and convincing
evidence standard, should be applied. The court observed that the burden of
proof as to testamentary capacity, once the presumption of capacity is
rebutted, is preponderance of the evidence. It then reasoned that “[a]lthough
the law regarding the determination of capacity is slightly different from that of
undue influence, . . . the two are similar enough to support the use of the
preponderance of the evidence standard” in this case.1 Applying that
standard, the court found that Grant met her burden to show that she did not
exercise undue influence on Colanton in order to obtain her increased share of
Colanton’s estate. Nevertheless, recognizing that the case might be appealed
and seeking to avoid “a second trial . . . should the Supreme Court determine
that [the court] should have applied the clear and convincing [evidence]
standard,” it further found that Grant “did not meet her burden of proof by
clear and convincing evidence.”

¶7 The sole question before us is whether the trial court erred in
applying the preponderance of the evidence standard, instead of the clear and
convincing evidence standard, in determining that Grant did not exercise
undue influence over Colanton. Accordingly, our review is de novo. See, e.g.,
American Pepper Supply Co. v. Fed. Ins. Co., 93 P.3d 507, 509, 511 (Ariz.
2004) (stating “[t]he appropriate burden of proof is a question of law, which this
court reviews de novo” and concluding that trial court erred by instructing jury
that defendant had to prove its defense by clear and convincing evidence rather
than by a preponderance of the evidence); cf. Attorney General, Dir. of
Charitable Trusts v. Loreto Publ’ns, 169 N.H. 68, 76 (2016) (“We review the
allocation of the burden of proof, a question of law, de novo.” (quotation
omitted)).

¶8 Andersen argues that “the trial court erred in failing to require
[Grant] to rebut the presumption of undue influence by clear and convincing
evidence.” Grant counters that, under New Hampshire law, “the existence of a
fiduciary or confidential relationship merely gives rise to an inference and not a
presumption, of undue influence.” Grant correctly states our law: “Inferences
of fact may be drawn against a confidential agent” who procures the
preparation of a will under which he substantially benefits, “but there is no
presumption of law against the agent.” Patten v. Cilley, 67 N.H. 520, 521
(preface to opinion), 528-29 (1893).

1 Although Andersen argues that the trial court erred in finding the doctrines of undue influence

and testamentary capacity sufficiently similar to apply the same quantum of proof to both, neither
she nor Grant challenges the court’s reliance on our law of wills to determine the quantum of
proof applicable to the Trust as well as the will. Indeed, as both parties rely on our law of wills
with regard to both instruments, we do the same.

3
 [¶9] Initially, “the law presumes the absence of undue influence upon
proof of the voluntary, formal execution of the will by a competent testator.”
Albee v. Osgood, 79 N.H. 89, 91 (1918). We explained the operation of the
factual presumptions in favor of a will’s proponent, and the applicable burdens
of production and persuasion, in Gaffney v. Coffey, 81 N.H. 300 (1924):

The proponent of the will had the burden of proving its due
execution, voluntarily, by a competent testator. Upon proof of the
voluntary formal execution of the will by a competent testator, in
the absence of circumstances arousing suspicion, the proponent of
a will is not required to offer express affirmative proof of the
absence of undue influence. The presumption of fact, which
excuses such offer of proof, however, neither extinguishes the
original issue nor shifts the burden of proof to the contestant. It
simply suspends the requirement of further proof of the voluntary
character of the testator’s act until it is called in question, if at all,
by the submission of substantial evidence of undue influence by
the contestant. When, as in this case, the contestant has
supported her contention by the submission of such substantial
evidence as will support a finding of undue influence, the
presumption of fact created by the formal proof of the will has
performed its office and is no longer of controlling force or of
probative value. Under these circumstances, if the jury should
find upon a consideration of the conflicting testimony upon this
issue that a condition of even balance of the evidence has been
reached, the proponent of the will has failed to maintain the
ultimate burden of proof which is his from the beginning to the end
of the trial. In other words, he has failed to establish that the will
is the free and voluntary act of the testatrix.

Gaffney, 81 N.H. at 306-07 (citation omitted); see also Ross v. Carlino, 119
N.H. 126, 130 (1979) (noting that a will’s proponent “has the ultimate burden
of proof as to every fact which is necessary to the validity of a will” and “retains
the burden of persuasion throughout the probate proceeding”; nevertheless,
once the proponent establishes his prima facie case, the contestant “suffers a
shift in the burden of moving forward with evidence showing a failure of due
execution”).

¶10 As the foregoing demonstrates, submission of “substantial
evidence” of undue influence by the will’s contestant merely puts the will’s
proponent to her burden of proving the “voluntary character of the testator’s
act,” which burden had previously been suspended by the “presumption of fact
created by the formal proof of the will.” Gaffney, 81 N.H. at 306-07. Thus,
submission of “substantial evidence” of undue influence has the same effect —
that is, putting the will’s proponent to her burden of proof — as submission of
sufficient evidence that the testator lacked testamentary capacity. See In re

4
Estate of Washburn, 141 N.H. 658, 662–63 (1997) (noting “the burden of
proving testamentary capacity in will contests remains on the proponent of the
will throughout the proceeding,” but because of the “presumption of capacity,”
the “proponent need not introduce any evidence upon the issue of the
testatrix’s capacity until a will contestant first rebuts the presumption by
offering evidence of incapacity”). Accordingly, the trial court was correct to
equate the proponent’s burden of proof as to testamentary capacity after a
contestant has rebutted the presumption of capacity with the proponent’s
burden of proof as to the absence of undue influence after a contestant has
rebutted the presumption of voluntary execution. See Gaffney, 81 N.H. at 306
(noting that a will’s proponent has the burden of proving the will was duly
executed both “voluntarily” and “by a competent testator”).

¶11 Andersen nevertheless argues that “[t]he policies underlying the
doctrine of undue influence are not sufficiently similar to the rationale
underlying the need for legal capacity.” (Italics omitted.) We are not
persuaded. We have defined undue influence in the context of a challenge to a
will as the “use of such appliances and influences as take away the free will of
the testator, and substitute another’s will for his, so that in fact the instrument
is not the expression of the wishes of the testator in the disposition of the
property, but of the wishes of another.” Albee, 79 N.H. at 92 (quotation
omitted). Similarly, one of the principles underlying the requirement of
testamentary capacity is “that a will should be given effect only if it represents
the testator’s true desires.” Jesse Dukeminier & Stanley M. Johanson, Wills,
Trusts and Estates 147 (5th ed. 1995). Indeed, the standard for testamentary
capacity under New Hampshire law reflects that this requirement is aimed at
ensuring that the will represents the testator’s true wishes:

In order to have sufficient mental capacity to make the will, the
testatrix, at the time of making it, must have been able to
understand the nature of the act she was doing, to recollect the
property she wished to dispose of and understand its general
nature, to bear in mind those who were then her nearest relatives
as such, and to make an election upon whom and how she would
bestow the property by her will; that she must have had the ability,
the mental power or capacity to do this; that if she had, the law
regarded her as of sufficient mental capacity to make the will . . . .

In re Estate of Washburn, 141 N.H. at 661 (quotation and brackets omitted).
Accordingly, while the policies underlying the doctrine of undue influence and
the requirement of testamentary capacity are not coextensive, we conclude the
trial court did not err in finding them “similar enough” that the same quantum
of proof should apply.

¶12 With respect to testamentary capacity, we have held that “once the
presumption [of capacity] is rebutted, the proponent merely retains the initial

5
burden of proving due execution. The proponent must persuade the trial
court, by a preponderance of all the evidence presented, that the testatrix
possessed the requisite capacity to make the will.” Id. at 663. Similarly, once
the initial presumption of voluntary execution is rebutted by substantial
evidence of undue influence, the will’s proponent, retaining the initial burden
of due execution, must persuade the trial court, by a preponderance of the
evidence, that the will was executed voluntarily. See id.; Gaffney, 81 N.H. at
306.

¶13 No different procedure applies when the “substantial evidence” of
undue influence comprises an inference drawn from evidence that the
beneficiary was in a confidential or fiduciary relationship with the testator.

The fact that an inference unfavorable to the validity of a will,
which may be drawn when it appears that a person who was
dependent upon or subject to the control of another makes a will
in that other’s favor, may be rebutted by showing that the
transaction was fair and honest, does not change the question of
whether or not it has been rebutted from one of fact to one of law.

Edgerly v. Edgerly, 73 N.H. 407, 408 (1905) (citations omitted); see also Archer
v. Dow, 126 N.H. 24, 28 (1985) (holding that the beneficiary of a transfer by
deed who holds a position of trust and confidence with the transferor has the
burden of proving an absence of undue influence). Accordingly, to the extent
Andersen contends that the procedure described in Gaffney does not apply
when the will’s proponent is a beneficiary who had a confidential or fiduciary
relationship with the testator, we reject that argument.

¶14 Andersen further argues that “[i]n light of the concerns underlying
th[e] presumption [of undue influence arising when a beneficiary is in a
confidential relationship with the testator], it is reasonable to require strong
evidence to destroy it.” She contends that “[t]his court can best advance the
common-law goal of protecting vulnerable donors and testators by requiring
those with whom they had a confidential relationship to prove by clear and
convincing evidence that their wills and trusts were made without undue
influence.”

¶15 We are not persuaded. Although protecting vulnerable donors and
testators from those who would exercise undue influence over them is a
legitimate goal, imposing a high burden of proof on the proponent of a will or
trust creates a significant risk that a decedent’s true intention will be defeated.
We agree with Grant that the preponderance of the evidence standard strikes
the best balance between respecting the decedent’s wishes as stated in the
instrument while protecting against potential overreaching by those closest to
the decedent. Adequate protection for vulnerable testators is embedded in the
mechanism described above in which the initial presumption of voluntary

6
execution ceases to function and the will’s proponent is put to her proof; a
heightened quantum of proof is not required for that purpose and risks
defeating the testator’s true intent.

¶16 Finally, Andersen cites case law from other jurisdictions, observing
that there is a split among states regarding the quantum of proof needed to
rebut the presumption of undue influence. To the extent she suggests we
should follow those jurisdictions that require proof by clear and convincing
evidence, we decline. For the reasons stated herein, we conclude that the trial
court did not err in applying the preponderance of the evidence standard.
Given the policy considerations at issue, however, we note that if the legislature
disagrees with our decision, it can establish a different burden of proof by
legislative enactment. See State v. Carter, 167 N.H. 161, 170 (2014) (noting
that “the legislature possesses the power to enact laws that override this
court’s common law and statutory construction precedents”).

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., sat for oral argument but did not participate in the final
vote.

7