In re The Omega Trust

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0001, In re The Omega Trust, the court
on November 25, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The petitioner, David J. Apostoloff, appeals an order of the
Circuit Court (Christo, J.), following an evidentiary hearing on remand from our
opinion in In re Omega Trust, 175 N.H. 179 (2022), denying his petition to
validate a purported amendment to the Omega Trust by its settlor during the
settlor’s lifetime. See RSA 564-B:6-602(c) (2019). The petitioner argues that
the trial court erred by determining that the settlor did not substantially
comply with the method for amending the relevant revocable trust set forth
within it, see RSA 564-B:6-602(c)(1), and that there was no clear and
convincing evidence of the settlor’s intent to amend the trust in accordance
with a series of emails reflecting the purported amendment, see RSA 564-B:6-
602(c)(2); Omega Trust, 175 N.H. at 185. We affirm.

By statute, “[t]he findings of fact of the judge of probate are final unless
they are so plainly erroneous that such findings could not be reasonably
made.” RSA 567-A:4 (2019); see In re Keeler Maint. Fund at Dartmouth Coll.,
176 N.H. 87, 91 (2023). “Consequently, we will not disturb the probate
division’s decree unless it is unsupported by the evidence or plainly erroneous
as a matter of law.” Keeler Maint. Fund at Dartmouth Coll., 176 N.H. at 91.

The trust at issue was one of several trusts that the settlor created as
part of a complex estate plan. The trust contained the following relevant terms
regarding its amendment:

19. AMENDMENT AND REVOCATION. The [settlor]
reserves the right at any time or from time to time without the
consent of any person and without notice to any person other than
the Trustee to revoke or modify the trust hereby created, in whole
or in part, to change the beneficiaries hereof, or to withdraw the
whole or any part of the trust estate by filing notice of such
revocation, modification, change, or withdrawal with the Trustee;
provided, however, that the terms of this agreement may not be
modified by the [settlor] in such manner as to increase the
obligations or alter the rates of the commissions of the Trustee
without its written consent.
 ....

22. EXECUTION. This trust agreement, and any
amendments hereto, shall be effective when executed by the
[settlor], notwithstanding that the signature of the Trustee is
provided for, the Trustee’s signature being intended to denote the
acceptance of the Trustee to serve in that capacity only.

This trust agreement may be executed in any number of
counterparts with the same effect as if all of the parties had signed
the same document. All counterparts shall be construed together
and shall constitute one agreement.

In his petition, the petitioner sought to establish that a series of emails
between the settlor and his estate planning attorney shortly before the settlor’s
death reflected an enforceable amendment to the trust pursuant to RSA 564-
B:6-602(c), which provides:

The settlor may revoke or amend a revocable trust:

(1) by substantial compliance with a method provided in the
terms of the trust; or

(2) by any other method manifesting clear and convincing
evidence of the settlor's intent if the terms of the trust do not
provide a method or do not expressly prohibit methods other than
methods provided in the terms of the trust.

RSA 564-B:6-602(c).

In Omega Trust, we reversed the trial court’s dismissal of the petition for
failure to state a claim, concluding that the petitioner had adequately pleaded
an alternative method of amending the trust for purposes of RSA 546-B:6-
602(c)(2), namely, “an expression of intent to amend [the trust] by email.” See
Omega Trust, 175 N.H. at 185. We remanded the matter for the circuit court
to determine the settlor’s intent in the first instance. Id. Because we
concluded that the petitioner had adequately pleaded an alternative method for
amending the trust, we did not address whether the petitioner had pleaded
sufficient facts to establish that the settlor had substantially complied with the
method for amending the trust set forth within it. See id. at 183-84.

On remand, the trial court held an evidentiary hearing over the course of
four days. In denying the petition, the trial court observed that “[w]hile it is
possible that [the settlor], knowing he was dying [at the time of the relevant
email thread with his attorney], may have intended that his wishes in the email
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exchange . . . be final, it is equally possible they were not.” The trial court
noted that the settlor’s attorney understood, based upon the email exchange,
that he had been directed to draft documents in accordance with the email
exchange, and that testimony from multiple witnesses who knew the settlor
well, including his attorneys, established that the settlor likely would have
engaged in multiple rounds of edits to the documents, including substantive
edits, had he not died before the attorney could prepare the documents. The
trial court further noted: (1) the email exchange contained no definitive
language indicating that the changes were the settlor’s final plan; (2) the settlor
had no phone conversation with his estate planning attorney regarding the
changes; (3) on the evening prior to his death, the settlor demonstrated his
understanding that further action would be required before changes reflected
in the email exchange would be effectuated; and (4) there was no evidence
establishing that the settlor did anything to manifest an intent to adopt the
email exchange as an amendment to the trust, such as signing a printed copy
of it or forwarding it to the trustee.

The trial court concluded that, “[l]ooking at the totality of the evidence,
there is no reason to believe that the plan described in the [email exchange] is
either complete or final. It is reasonable, based on [the settlor’s] past conduct,
that further changes may have been made.” Accordingly, although the trial
court noted that the settlor “was clearly in the process of trying to amend his
estate plan when he died,” it determined that the petitioner had failed to prove,
by clear and convincing evidence, that the settlor’s “manifestation of intent was
complete, given his life-long prior practice of editing and revising documents.”
Likewise, the trial court determined that the settlor had not substantially
complied with a method for modifying the trust as established by its terms.

On appeal, the petitioner argues that, because the email exchange
included edits by the settlor to his attorney’s summary of anticipated changes,
because the settlor intended to change his estate plan, because the settlor told
the trustee of his intent, and because the settlor was terminally ill, the trial
court erred by finding a lack of clear and convincing evidence that the email
exchange reflected a complete manifestation of his intent. The petitioner
further argues that, because the settlor told the trustee that he intended to
modify the trust, the settlor “substantially complied” with the trust’s
requirement to “fil[e] notice” of the amendment with the trustee. We disagree.

Whether the email exchange reflected a manifestation of the settlor’s
intent to amend the trust “is a question of fact to be determined by competent
evidence and not by rules of law.” Id. at 185 (quotation omitted). “Clear and
convincing evidence” means “[e]vidence indicating that the thing to be proved is
highly probably or reasonably certain.” Black’s Law Dictionary 697 (12th ed.
2024). “Substantial compliance” generally encompasses minor deviations or
technical violation from required procedures. Cf. Kibbe v. Town of Milton, 142
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N.H. 288, 292 (1997) (discussing substantial compliance doctrine applicable to
election statutes); Barcomb v. Herman, 116 N.H. 318, 320 (1976) (same).

It is the petitioner’s burden, as the appealing party, to demonstrate
reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014). Here, the trial
court found that, although the settlor was in the process of amending his
estate plan when he died, the email exchange did not reflect the final or
complete manifestation of his intent to amend his estate plan, including the
trust at issue. Thus, there was no amendment to which the settlor had
manifested intent, or of which the settlor could have provided notice to the
trustee in substantial compliance with the amendment provisions of the trust.
Based upon our review of the trial court’s thorough and well-reasoned decision,
the petitioner’s arguments, the relevant law, and the record submitted on
appeal, we conclude that the petitioner has not established that the trial
court’s decision was unsupported by the evidence or plainly erroneous as a
matter of law. See id.; Keeler Maint. Fund at Dartmouth Coll., 176 N.H. at 91.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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