PROBATE COURTS AND DECEDENTS' ESTATES
Every person of the age of eighteen years and married persons under that age, of sane mind, may devise and dispose of their property, real and personal, and of any right or interest they may have in any property, by their last will in writing.
Source. RS 156:1. CS 158:11; 165:1. GS 164:12; 174:1. GL 183:11; 193:1. PS 186:1. 1923, 10:1. PL 297:1. RL 350:1. 1943, 93:1, eff. March 30, 1943.
I. To be valid, a will or codicil to a will shall:
(a) Be made by a testator qualifying under RSA 551:1; and
(b) Be in writing; and
(c) Be signed by the testator, or by some person at his or her express direction in his or her presence; and
(d) Be signed by 2 or more credible witnesses, who shall, at the request of the testator and in the testator's presence, attest to the testator's signature.
II. No seal shall be required. These requirements shall apply to all wills executed on or after January 1, 1993.
III. (a) For the purposes of this chapter, a person attesting a will or codicil as a witness shall be deemed in the presence of the testator if the witness, the testator, the other witness or witnesses, as the case may be, and a notarial officer who is (1) the attorney, licensed to practice law in New Hampshire and in good standing, who drafted the will or codicil; (2) another attorney, licensed to practice law in New Hampshire and in good standing, under the drafting attorney's supervision; or (3) a paralegal under the supervision of either such attorney, can communicate simultaneously by sight and sound through an electronic device or process at the time all of them sign the will or codicil, which may be signed in multiple counterparts. A witness need not be physically present within the state of New Hampshire at the time the witness attests to the testator's signature.
(b) Nothing in this paragraph shall be deemed to allow an electronic will or codicil. This paragraph shall apply only to wills executed on or after March 23, 2020.
Source. RS 156:6. 1848, 726:1. CS 165:6. GS 174:6. GL 193:6. 1887, 64:1, 2. PS 186:2. PL 297:2. RL 350:2. 1943, 93:2. RSA 551:2. 1983, 255:1. 1985, 200:1. 1992, 284:60, eff. Jan. 1, 1993. 2020, 17:12, eff. July 17, 2020. 2021, 206:2, Pt. II, Sec. 11, eff. Aug. 10, 2021.
551:2-a Self-Proved Wills.
I. To qualify as self-proved, the signatures of the testator and witnesses shall be followed by a sworn acknowledgment made before a notary public or justice of the peace or other official authorized to administer oaths in the place of execution, as follows:
The foregoing instrument was acknowledged before me this __________ (day) by ___, the testator; ___ and ___, the witnesses, who under oath do swear as follows:
1. The testator signed the instrument as the testator's will or expressly directed another to sign for the testator.
2. This was the testator's free and voluntary act for the purposes expressed in the will.
3. Each witness signed at the request of the testator, in the testator's presence, and in the presence of the other witness.
4. To the best of my knowledge, at the time of the signing the testator was at least 18 years of age, or if under 18 years was a married person, and was of sane mind and under no constraint or undue influence.
II. Any will meeting the requirements of RSA 551-A shall also qualify as self-proved and shall be allowed as such by the probate court.
Source. 1983, 255:2. 1985, 200:2. 1999, 100:3, eff. Jan. 1, 2000.
551:3 Interested Witness.
Any beneficial device or legacy made or given in a will to a subscribing witness thereto or to the wife or husband of such a witness shall be void unless there be 2 other subscribing witnesses, and such subscribing witness shall be a competent witness thereto; but a provision therein for the payment of a debt shall not be void nor disqualify the creditor as a witness thereto.
Source. RS 156:8. CS 165:8. GS 174:8. GL 193:8. PS 186:3. 1911, 3:1. PL 297:3. RL 350:3. RSA 551:3. 1983, 255:3, eff. Aug. 17, 1983.
551:4 Corporate Beneficiary.
No will nor any part thereof shall be holden invalid, nor any witness thereto incompetent, by reason of any or all of the witnesses being, at the time of the execution or of the probate thereof, members of a corporation to which a devise or legacy is therein given.
Source. 1865, 4089:1. GS 174:9. GL 193:9. PS 186:4. PL 297:4. RL 350:4.
551:5 Will Made Outside the State.
I. A will made out of this state, and valid according to the laws of the state or country where it was executed, may be proved and allowed in this state, and shall thereupon be as effective as it would have been if executed according to the laws of this state.
II. A will made out of this state, and self-proved according to the laws of the state or country where it was executed, is self-proved in this state and shall be allowed as such by the probate court.
Source. 1883, 106:1. PS 186:5. PL 297:5. RL 350:5. 1999, 100:4, eff. Jan. 1, 2000.
551:6 Devise of Real Estate.
Every devise of real estate shall be holden to pass all the estate of the devisor therein, unless it shall appear that it was his intention to pass a less estate.
Source. RS 156:4. CS 165:4. GS 174:4. GL 193:4. PS 186:6. PL 297:6. RL 350:6.
551:7 After-Acquired Property.
Any estate, right or interest in real property acquired by the testator after making his will, shall pass thereby, if such shall appear to have been his intention.
Source. RS 156:2. CS 165:2. GS 174:2. GL 193:1, 2. PS 186:7. PL 297:7. RL 350:7.
551:8 Limited Estate.
No express devise of an estate for life or other limited estate shall be enlarged or construed to pass any greater estate, by reason of any devise to the heirs or issue of such person.
Source. RS 156:5. CS 165:5. GS 174:5. GL 193:5. PS 186:8. PL 297:8. RL 350:8.
No devise or bequest of any property shall be defeated by a disseizin or wrongful dispossession thereof by any other person.
Source. RS 156:3. CS 165:3. GS 174:3. GL 193:3. PS 186:9. PL 297:9. RL 350:9.
551:10 Child Not Named, Etc.
Every child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.
Source. RS 156:9. CS 165:9. GS 174:10. GL 193:10. PS 186:10. PL 297:10. RL 350:10.
551:11 Share of Unnamed Child.
If the property not devised nor bequeathed shall be insufficient to satisfy the just share of such child, after allowing advancements received by him, the same shall be made up in just proportion from the property devised or bequeathed to others.
Source. RS 156:10. CS 165:10. GS 174:11. GL 193:11. PS 186:11. PL 297:11. RL 350:11.
551:12 Heirs of Legatee.
The heirs in the descending line of a legatee or devisee, deceased before the testator, shall take the estate bequeathed or devised, in the same manner the legatee or devisee would have taken it if he had survived.
Source. RS 156:11. CS 165:11. GS 174:12. GL 193:12. PS 186:12. PL 297:12. RL 350:12.
I. Except as provided in paragraph II, no will or clause thereof shall be revoked unless by some other valid will or codicil, or by some writing executed in the same manner, or by canceling, tearing, obliterating or otherwise destroying the same by the testator, or by some person by the testator's consent and in the testator's presence.
II. If after executing a will the testator is divorced or the marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse and all heirs in the descending line of such former spouse who are not also heirs at law of the decedent failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse and all heirs in the descending line of such former spouse who are not also heirs at law of the decedent failed to survive the decedent. Any bequest or devise to any such heirs in the descending line of such former spouse that is contingent upon such spouse predeceasing the testator is revoked by this section, unless the will expressly provides otherwise. If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for the purposes of this section. No change of circumstances other than as described in this section revokes a will.
III. If after executing a trust instrument in which a sole grantor reserves a power to alter, amend, revoke or terminate the provisions of the trust, the grantor is divorced or the marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the trust to the former spouse, any provision conferring a general or special power of appointment to the former spouse, and any nomination of the former spouse as trustee, unless the trust expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse and all heirs in the descending line of such former spouse who are not also heirs at law of the decedent failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse and all heirs in the descending line of such former spouse who are not also heirs at law of the decedent failed to survive the decedent. Any devise or distribution to any such heirs in the descending line of such former spouse that is contingent upon such spouse predeceasing the grantor is revoked by this section, unless the trust expressly provides otherwise. If provisions are revoked solely by this paragraph, they are revived by the grantor's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for the purposes of this paragraph. No change of circumstances other than as described in this paragraph revokes a trust.
Source. RS 156:13. CS 165:13. GS 174:14. GL 193:14. PS 186:14. PL 297:13. RL 350:13. RSA 551:13. 1998, 127:1. 1999, 148:1. 2003, 31:1, eff. Jan. 1, 2004.
The preceding section shall not control or affect any revocation of a will, implied by law, from any change in the circumstances of the testator, or his family, devisees, legatees or estate, occurring between the time of making the will and the death of the testator.
Source. RS 156:14. CS 165:14. GS 174:15. GL 193:15. PS 186:15. PL 297:14. RL 350:14.
551:15 Nuncupative Will.
A soldier in actual military service, or a mariner or seaman when at sea, may dispose of his movables and personal estate as he might heretofore have done.
Source. RS 156:7. 1848, 726:1. CS 165:7, 16. GS 174:7. GL 193:7. PS 186:16. PL 297:15. RL 350:15.
No nuncupative will shall be valid where the personal estate bequeathed exceeds in value one hundred dollars, unless declared in the presence of three witnesses who were requested by the testator to bear witness thereto, in his last sickness and in his usual dwelling, except when he was taken sick from home and died before his return; nor unless a memorandum thereof was reduced to writing within six days, and presented for probate within six months from the making thereof.
Source. RS 156:15. CS 165:15. GS 174:16. GL 193:16. PS 186:17. PL 297:16. RL 350:16.
551:17 Donatio Causa Mortis.
No gift in expectation of death, often called donatio causa mortis, shall be valid, unless the actual delivery of the property to the donee shall be proved by two indifferent witnesses, upon petition of the donee to the judge to establish such gift, filed within sixty days after the decease of the donor.
Source. GS 174:17. GL 193:17. PS 186:18. PL 297:17. RL 350:17.
Deposit of Wills with the Register
Section 551:18 to 551:21
551:18 to 551:21 Repealed by 1977, 274:1, eff. Aug. 21, 1977.
551:22 Enforcement of No-Contest Provision.
I. For the purposes of this section, a "no-contest provision" means a provision of a will that, if given effect, would reduce or eliminate the interest of any beneficiary of such will who, directly or indirectly, initiates or otherwise pursues:
(a) Any action to contest the admission or validity of such will;
(b) Any action to set aside or vary the terms of such will;
(c) Any action to challenge the acts of the executor of such will or other fiduciary of such will in the performance of such executor's or other fiduciary's duties as described in such will; or
(d) Any other act or proceedings to frustrate or defeat the testator's intent as expressed in the terms of such will.
II. A no-contest provision shall be enforceable according to the express terms of the no-contest provision without regard to the presence or absence of probable cause for, or the beneficiary's good or bad faith in, taking the action that would justify the complete or partial forfeiture of the beneficiary's interest in the will under the terms of the no-contest provision. A no-contest provision shall be unenforceable to the extent that the will is invalid because of fraud, duress, undue influence, lack of testamentary capacity, or any other reason. In the case of an action solely to challenge the acts of the executor or other fiduciary of the will, a no-contest provision shall be unenforceable to the extent that the executor or other fiduciary has committed a breach of fiduciary duties or breach of trust.
III. Paragraph II of this section shall not apply to the extent that a person initiates, maintains, or cooperates in any of the following actions or proceedings:
(a) Any action brought by the executor or other fiduciary of a will that incorporates a no-contest provision, unless the executor or other fiduciary is a beneficiary against whom the no-contest provision is otherwise enforceable;
(b) Any agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to such will;
(c) Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision;
(d) Any action brought by a beneficiary under a will or on behalf of any such beneficiary for a construction or interpretation of the will;
(e) Any action brought by the attorney general for a construction or interpretation of a will containing a charitable trust or charitable bequests or if a provision exists in a will or trust purporting to penalize a charity or charitable interest for contesting the will or trust or instituting other proceedings relating to the estate or trust if probable cause exists for instituting proceedings; or
(f) A proceeding described in paragraph VIII.
IV. It is the intent of this section to enforce the testator's intentions as reflected in a no-contest provision described in paragraph II of this section to the greatest extent possible. The provisions of this section shall be construed and applied in a manner consistent with such intent.
V. This section shall apply to all judicial proceedings concerning the enforcement or interpretation of a no-contest provision commenced on or after its effective date.
VI. In the executor's discretion, an executor may suspend distributions to a beneficiary to the extent that, under a no-contest provision, the beneficiary's action potentially would have caused the reduction or elimination of the beneficiary's interest in the will. In the executor's discretion, the executor may resume those distributions at any time or may continue to suspend those distributions until a court determines whether the beneficiary's interest in the will has been reduced or eliminated.
VII. In the executor's discretion, an executor may decline to distribute property in accordance with a person's purported exercise of a power of appointment or a power of withdrawal to the extent that, under a no-contest provision, the person's action potentially would have caused the reduction or elimination of the power of appointment or the power of withdrawal. In the executor's discretion, the executor may make those distributions at any time or may continue to decline to make those distributions until a court determines whether the person's power of appointment or power of withdrawal has been reduced or eliminated.
VIII. To the extent that the executor acts in good faith, the executor is not liable to any person for exercising the discretion under paragraph VI or VII or not exercising that discretion. An executor shall be presumed to have exercised the discretion in good faith if, in any judicial proceeding, an interested person other than the executor has requested a determination of whether, under the no-contest provision, a beneficiary's interest in the will, a person's power of appointment, or a person's power of withdrawal was reduced or eliminated. An executor or any other interested person may commence a judicial proceeding for purposes of determining whether the executor's exercise of discretion under paragraph VI or VII was made in good faith.
Source. 2011, 243:2, eff. Sept. 11, 2011. 2014, 195:2, 3, eff. July 1, 2014.