Allen v. Allen

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

___________________________

6th Circuit Court-Concord Probate Division
Case No. 2024-0094
Citation: Allen v. Allen, 2026 N.H. 33

DAVID ALLEN, INDIVIDUALLY, AND AS BENEFICIARY OF THE ESTATE OF
PRISCILLA W. ALLEN

v.

PETER ALLEN

Argued: May 19, 2026
Opinion Issued: September 3, 2026

Devine, Millimet & Branch, P.A., of Manchester (Richard P. Driscoll on
the brief and orally), for the petitioner.

Primmer Piper Eggleston & Cramer PC, of Manchester (Thomas J.
Pappas and Robert J. Kendall III on the brief, and Thomas J. Pappas orally), for
the respondent.

WILL, J.
[¶1] The respondent, Peter Allen, appeals an order of the Circuit Court
(Cassavechia, R., approved by Weaver, J.) granting a petition to invalidate a
deed of real property brought by the petitioner, David Allen, individually and as
beneficiary of the Estate of Priscilla W. Allen. Because we conclude that the

2
trial court lacked subject matter jurisdiction, we vacate and remand with
instructions to dismiss without prejudice.

I. Background

¶2 The probate division of the circuit court (probate court) found, or the
record otherwise supports, the following facts. Priscilla W. Allen had four
children: David, Peter, Frank, and Sherry.1 She also had two close friends —
James W. Bullard and W. Brad Clark — whom she engaged to assist with her
personal, financial, and property affairs.

¶3 In 2012, Priscilla purchased a farm in Temple (Temple Farm), where
Peter has since resided. In 2014, Peter brought Priscilla to Temple Farm for a
temporary stay that became extended. About six months after Peter ensconced
Priscilla at Temple Farm, Clark engaged an attorney to prepare a deed through
which Priscilla would transfer, without consideration, a one-half, undivided
interest in Temple Farm to Peter, as a tenant in common. In February 2015,
prior to the transaction’s consummation, Priscilla suffered a series of medical
events that left her in a rehabilitation center, where Peter convened a notary so
that Priscilla could execute the deed. Priscilla signed the deed before the
notary, and the attorney recorded the deed at the Hillsborough County Registry
of Deeds in July 2015.

¶4 In May 2015, the rehabilitation center discharged Priscilla and she
returned to Temple Farm, where she became increasingly dependent on Peter
for the activities of daily life. In June 2016, the probate court (Quigley, J.)
granted guardianship of Priscilla’s estate to Bullard consistent with Priscilla’s
expressed testimonial preference.

¶5 Priscilla died in 2018. She left her estate to her four children in
equal shares. The administrator of Priscilla’s estate filed an inventory in the
probate court that included her one-half interest in Temple Farm. David
objected to the inventory, contending that Priscilla lacked capacity when she
transferred the other one-half interest to Peter. David urged the administrator
to litigate the ownership of the property. The administrator declined, however,
on his conclusion that the cost of litigation would outweigh any value to the
estate. The court, therefore, accepted the inventory as filed. Based on the
record before us, Priscilla’s estate remains open awaiting final resolution of this
case.

¶6 In 2020, in a docket separate from the estate matter, David
petitioned the probate court to set aside the deed and for related relief against
Peter. He asserted four counts: undue influence, lack of capacity, restitution
for unjust enrichment, and constructive trust. He requested that the court “set

1 Frank and Sherry are not parties to this case.

3
aside” the tenants-in-common deed and impose a constructive trust over
Temple Farm “for the benefit of the beneficiaries of Priscilla’s estate.” The
probate court held a two-day trial after which it granted David’s petition. The
court invalidated the tenants-in-common deed based upon its conclusions that
Peter unduly influenced Priscilla to execute the deed and that she lacked
capacity to do so. The court deferred ruling on David’s request for an
imposition of a constructive trust and awarded David attorney’s fees.

¶7 The Circuit Court (Cassavecchia, R., approved by Casa, J.) denied
Peter’s motion for reconsideration. Peter filed an appeal in this court and then
filed a motion in the probate court “to vacate all orders and dismiss [the] case
for lack of subject-matter jurisdiction.” (Capitalization and bolding omitted.)
The probate court declined to address Peter’s motion based on its conclusion
that he raised the same issue in his notice of appeal. Peter argues on appeal
that the probate court lacks subject matter jurisdiction over David’s cause of
action.

II. Analysis

¶8 Although Peter challenged the probate court’s subject matter
jurisdiction for the first time in his notice of appeal, exceedingly late in these
proceedings, we acknowledge that “[a] party may challenge subject matter
jurisdiction at any time during the proceeding, including on appeal, and may
not waive subject matter jurisdiction.” In re Guardianship of K.B., 172 N.H.
646, 648 (2019). Even though trial has occurred, therefore, we must still
analyze whether the probate court lacked subject matter jurisdiction.

¶9 “A court lacks the authority to hear or determine a case concerning
subject matters over which it has no jurisdiction.” Rogers v. Rogers, 171 N.H.
738, 742 (2019). A creature of statute, the probate court may exercise subject
matter jurisdiction only in the areas the legislature has authorized. See id. at
742-43. The legislature created the probate court, see RSA 490-F:1, :3 (Supp.
2025), and the legislature alone delineates the court’s subject matter
jurisdiction. Rogers, 171 N.H. at 742-43; see RSA 547:3 (Supp. 2025); RSA
547:3-b (2019).

¶10 Whether the probate court exercised subject matter jurisdiction
beyond what the legislature has authorized requires us to construe the statute,
a question of law subject to our de novo review. Rogers, 171 N.H. at 743. We
are guided by the well-worn tenets of statutory construction, including that we
first look to the statutory language and, whenever possible, construe that
language according to its plain and ordinary meaning. Id. When the language
of the statute is unambiguous, we do not look beyond it for its meaning. Id.

¶11 We have considered the provisions of RSA 547:3 and conclude that
none of them provides the probate court with subject matter jurisdiction over

4
David’s claims. The parties focus their arguments on RSA 547:3, I(b), and we
agree that this is the only plausible provision of the statute under which the
probate court could have had jurisdiction. RSA 547:3, I(b) vests the probate
court with exclusive subject matter jurisdiction over:

(b) The granting of administration and all matters and things of
probate jurisdiction relating to the composition, administration,
sale, settlement, and final distribution of estates of deceased
persons, including the establishment of death of a person
presumed dead and assignment of homestead and claims against
the executor or administrator for those services related to the prior
care and maintenance of the decedent and the administration of
insolvent estates and appeals therefrom.

David’s claims would arguably most closely fit into the “composition” and “final
distribution” of Priscilla’s estate. The probate court had subject matter
jurisdiction over David’s claims, then, if they sufficiently “relat[e] to” the
“composition” or “final distribution” of Priscilla’s estate. Id.

¶12 The statutory term “relating to” drives the analysis, but the statute
does not define the term. See RSA 547:3. Ordinarily, we would construe
“relating to” according to its common usage, employing the dictionary for
guidance. See Appeal of Michele, 168 N.H. 98, 102 (2015). But our
jurisprudence emphasizes a narrow construction of the grant of jurisdiction in
RSA 547:3, I, as “plainly and unambiguously limiting the exclusive jurisdiction
of the probate court.” Rogers, 171 N.H. at 743. Our general policy “has been
to confine the contentious jurisdiction of the probate courts within narrow
limits.” Id. at 744. Guided by those precepts, we have devised a two-part test
to determine whether a party’s claims fall within the probate court’s
jurisdiction. See id. at 745; DiGaetano v. DiGaetano, 163 N.H. 588, 591
(2012); Tarnawa v. Goode, 172 N.H. 321, 326 (2019). First, we inquire
“whether the action relates to an estate, will, or trust.” Rogers, 171 N.H. at
745. Second, we inquire “whether the relief sought is equitable or legal.” Id.

¶13 Considering the first part of this test, we have emphasized that the
term “relating to” in the statute requires “a direct connection to the elements of
probate court jurisdiction, which, as defined by the statute and at issue here,
concern the ‘composition, administration, sale, settlement, and final
distribution’ of an estate.” Id. at 746 (quoting RSA 547:3, I(b)). For this
reason, “it is the manner by which an action relates to an estate that is the
critical inquiry, not whether a relationship simply exists.” Id. In other words,
the resolution of the subject matter jurisdiction challenge does not rest on
whether David’s claims relate in any way to the composition and final
distribution of Priscilla’s estate, but rather whether “a direct connection” exists
between David’s claims and the estate, and whether this connection relates to
the estate in a manner that mandates the probate court’s exclusive

5
jurisdiction. Id. Viewing David’s claims through this more focused lens
compels the conclusion that the necessary direct connection does not exist.

¶14 David asked the probate court to invalidate Priscilla’s inter vivos
transfer to Peter, or otherwise to impose a constructive trust over Peter’s
property interest, on undue influence and incapacity grounds. David’s claims
“do not require the interpretation of a will or trust, nor do they require an
assessment of the estate’s administration or seek a re-distribution of the
estate’s assets.” Id. David did not contest Priscilla’s will or challenge the
distribution of any assets held by her estate. To the contrary, David contended
that the deed contradicted Priscilla’s “fixed intention to transfer her property to
her four children in equal shares” as expressed in her will. And David did not
challenge the administrator’s decision not to pursue the claim. Instead, he
brought a separate action to challenge Priscilla’s inter vivos transfer to Peter
and to contest Peter’s ownership of the property, an action that did not depend
on an underlying probate proceeding.

¶15 By the time of Priscilla’s death, her estate no longer owned the one-
half interest in Temple Farm; Peter did, at least unless or until an adjudication
to the contrary. This is not a case, therefore, in which the estate owned the
real estate interest that David challenges. Cf. In re Estate of Porter, 159 N.H.
212, 214 (2009) (“[T]he probate court has jurisdiction to resolve issues
involving real estate of the decedent if the property is ‘in’ the estate of the
decedent.” (quotation omitted)); RSA 547:11-b (2019) (establishing, in relevant
part, jurisdiction over declaratory judgment actions regarding title to real
property in decedent’s estate); RSA 547:11-c (2019) (establishing, in relevant
part, jurisdiction over quiet title actions regarding real property in decedent’s
estate). Peter came to own this property interest in Temple Farm through a
conveyance that Priscilla executed during her life; he did not receive the
property interest as a result of Priscilla’s death or as a result of her estate
documents. This is also not a case, therefore, concerning property that passed
after the decedent’s death. Cf. In re Estate of Couture, 166 N.H. 101, 103
(2014) (affirming probate court’s imposition of constructive trust over life
insurance proceeds paid to respondent upon decedent’s death); In re Estate of
Cass, 143 N.H. 57, 58 (1998) (affirming probate court’s imposition of
constructive trust over property that decedent testator bequeathed to
respondent).

¶16 David accordingly could have brought a substantially similar claim
against Peter, challenging the inter vivos conveyance, during Priscilla’s life. See
e.g., Archer v. Dow, 126 N.H. 24, 25 (1985) (plaintiff filed petition in superior
court to set aside conveyance of her property to the defendant based upon
defendant’s undue influence); Skaling v. Remick, 97 N.H. 106, 106 (1951)
(preface to opinion) (plaintiff brought bill in equity to set aside a deed of real
estate from the plaintiff to the defendants on the grounds of fraud, undue
influence and lack of consideration). If he had, the superior court would

6
clearly have had subject matter jurisdiction over the claims. See RSA 491:7
(Supp. 2025) (providing that superior court has jurisdiction over “civil actions
and pleas, real, personal, and mixed” and “suits in equity under RSA 498:1”);
RSA 498:1 (Supp. 2025) (establishing that superior court has powers of a court
of equity over cases of “fraud, accident and mistake”). Even if David did not
learn of Priscilla’s transfer until the filing of the probate inventory, the
fundamental nature of his claims remains the same; that fact would not
change his claims so as to relate them to Priscilla’s estate. Nor is it relevant
that David asserted undue influence and incapacity, doctrines often applied in
probate court. That a party brings an action to challenge an inter vivos
transfer after the grantor has died does not require that the party bring the
case in probate court, nor can a probate court exercise subject matter
jurisdiction simply because a party brought a claim after a grantor’s death.
See Filip v. Bogdan, 123 N.H. 98, 99 (1983) (executrix filed action to set aside
deed in superior court to bring property back into decedent’s estate).

¶17 David’s action, moreover, is separate from the administration of
Priscilla’s estate. David filed a new petition about a transaction that occurred
when Priscilla was alive. He brought the new action in a new docket entirely
separate from the docket concerning the administration of Priscilla’s estate. He
asked the court to set aside the tenants-in-common deed or to impose a
constructive trust over Temple Farm.

¶18 Stated simply, the resolution of David’s claims did not require a
court — in the same case docket — to handle matters relating to the
composition, administration, sale, settlement, or final distribution of Priscilla’s
estate. David obtained relief separate and apart from anything occurring in the
estate administration docket and his action proceeded entirely separately from
that docket. The independence of David’s claims from the estate
administration docket further exposes the absence of the direct relation that
probate court subject matter jurisdiction requires.

¶19 To be sure, the trial court’s invalidation of the tenants-in-common
deed would effectively return Peter’s one-half interest in Temple Farm to
Priscilla’s estate, and would affect in some fashion both the composition of
Priscilla’s estate and the distribution of it to her beneficiaries. But “relating to”
requires more than having an incidental effect upon an estate. See Rogers, 171
N.H. at 746. Our decisional law requires a much closer link. See id. David’s
claims have at most a “tangential,” and not direct, relationship to Priscilla’s
estate. Id. at 747. His claims, therefore, fail the first element of our two-part
test and we need not address the second element, i.e., whether the relief
sought is equitable or legal. See id. at 745. David’s claims fall outside of the
probate court’s statutory subject matter jurisdiction. See id. at 747.

¶20 We are mindful of the late stage in these proceedings and the effect
of our conclusion upon party and judicial resources, but a lack of subject

7
matter jurisdiction is dispositive, In re Guardianship of K.S., 177 N.H. 630, 635
(2025), 2025 N.H. 47, ¶12, and parties may raise it at any time in the
proceedings, including after trial. In light of the probate court’s lack of subject
matter jurisdiction, we decline to address the remaining issues Peter raised on
appeal, vacate the trial court order, and remand and instruct the probate court
to dismiss the petition without prejudice. See id.

Vacated and remanded.

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