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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Cheshire County Probate Court
No. 99-422
PAMELA ROBBINS & a.
v.
BERTHA G. JOHNSON & a.
October 3, 2001
Chubrich & Harrigan, P.A., of Portsmouth (Michael E. Chubrich on the brief and orally), for the plaintiffs.
Braiterman Law Offices, of Concord (David J. Braiterman and Audrey L. Reagan on the brief, and Mr. Braiterman orally), for the defendants.
Dalianis, J. The plaintiffs, Pamela and Michael Robbins, are the daughter and adopted son of Elizabeth Robbins (Robbins). The defendants, Bertha G. Johnson and Susan Wright, are Robbins’ sister and niece. The plaintiffs appeal the orders of the Cheshire County Probate Court (Espiefs, J.) denying their petition for declaratory judgment and related motion for reconsideration. This is the second appeal involving these parties. In the first appeal, we held that the plaintiffs were entitled to take under Robbins’ will pursuant to the pretermitted heir statute, RSA 551:10 (1997). See In re Estate of Robbins, 145 N.H. 145 (2000). The current appeal involves "The Elizabeth C. Robbins Revocable Trust." The probate court found that the trust was valid and nontestamentary. We affirm.
On appeal, the plaintiffs argue that the trust is a testamentary trust. They contend that if the trust is testamentary, the pretermitted heir statute applies to it because it is the functional equivalent of a will. See RSA 551:10.
The plaintiffs’ focus upon whether the trust is testamentary or inter vivos is misplaced. Even if the trust is deemed inter vivos, it arguably still functions like a will because it provides for the distribution of property after Robbins’ death. As the Restatement (Third) of Trusts