Probate Jurisdiction Over Express-Trust Fiduciary-Duty Counterclaims Despite Foreign Choice-of-Law (and Preservation of Fee-Remedy Challenges)

1. Introduction

Moffat v. Srebro, 2026 N.H. 25 (N.H. July 7, 2026), arises from a family dispute among three siblings—Nathaniel Moffat (trustee), Sarah Srebro, and Matthew Moffat—over the administration and division of real property held in the Pamela Dawson Moffat Revocable Trust (the “Trust”). The Trust was the residuary beneficiary of their mother’s Maryland-probated estate and required equal distribution among the three children. Two parcels in Hancock, New Hampshire—34 Kings Highway (a long-held family summer property) and 33 Kings Highway (purchased in 2020 with the mother’s funds and later renovated)—became the focal point.

Nathaniel, as trustee, petitioned in the New Hampshire probate division for partition under RSA chapter 547-C, asserting the siblings could not agree and the property could not be divided without prejudice. Sarah counterclaimed for breach of fiduciary duties based on Nathaniel’s alleged self-dealing and misadministration of Trust assets (including living rent-free in Trust property and using Trust funds for renovations benefiting him).

The Supreme Court addressed three core topics: (1) the probate court’s broad equitable discretion in partition; (2) the probate court’s subject matter jurisdiction over fiduciary-duty counterclaims involving an express trust even where the Trust contains a foreign (District of Columbia) choice-of-law clause; and (3) appellate limits where issues are waived or not preserved—especially challenges to fee remedies that arise from the court’s order and therefore require a motion to reconsider.

2. Summary of the Opinion

  • Partition affirmed: The probate court’s award of 34 Kings Highway to Sarah (and 33 Kings Highway to Nathaniel) was upheld as a sustainable exercise of equitable discretion under RSA 547-C:29 and RSA 547-C:30.
  • Jurisdiction confirmed: The probate court had exclusive subject matter jurisdiction under RSA 547:3, I(d) over Sarah’s counterclaims (as pursued) because they directly challenged the trustee’s administration, distribution, and accounting of an express trust within RSA chapter 564-B.
  • No merits review of fee-remedy challenges: Matthew’s challenge was waived for inadequate development; Nathaniel’s challenge to the scope of fee reimbursement was not preserved because he did not file a motion to reconsider after the fee order entered.
  • Result: The Supreme Court affirmed both the property assignment and the order that Nathaniel personally repay the Trust’s litigation costs to the extent Trust funds were used.

3. Analysis

A. Precedents Cited

1) Partition as an equitable remedy; appellate deference

The Court relied heavily on Hayes, Tr. v. Connolly, Tr., 172 N.H. 102 (2019), for the proposition that partition “calls upon the court to exercise its equity powers” and that the trial court possesses “broad and flexible equitable powers” to craft relief. The standard of review—whether there is “an objective basis sufficient to sustain the discretionary judgment”—comes directly from Hayes, Tr. v. Connolly, Tr. and framed the Court’s rejection of the appellants’ demand that the Court effectively redo the balancing of equities.

The Court also cited Tarnawa v. Goode, 172 N.H. 321 (2019), to underscore that appellate review is not an invitation to “reweigh the equities.” This was pivotal to the appellants’ argument that sibling animosity and proximity would “guarantee” future conflict; the Supreme Court treated that as an equity-weighing request the trial court had already considered and rejected.

The decision also invoked DeLucca v. DeLucca, 152 N.H. 100 (2005), alongside RSA 547-C:22 and RSA 547-C:25, for the proposition that the statutory scheme reflects a preference for division/assignment over sale where feasible—supporting the probate court’s decision to award parcels rather than force liquidation.

2) Probate court jurisdiction is statutory and narrowly construed

For jurisdiction, the Court anchored its analysis in Rogers v. Rogers, 171 N.H. 738 (2019), emphasizing that the probate court is not of general jurisdiction and may act only within powers “conferred upon it by statute.” The Court used Rogers v. Rogers to frame the need for a careful, claim-specific inquiry: even when a matter involves a trust, jurisdiction turns on whether the claims directly concern trust administration (as opposed to being merely tangential).

The Court applied the jurisdictional “nature of claim” test from DiGaetano v. DiGaetano, 163 N.H. 588 (2012), which asks (1) whether the action relates to a trust (or estate/will), and (2) whether the relief sought is equitable or legal. The counterclaims here—focused on the trustee’s rent-free occupancy, use of Trust funds for renovations, allegedly deficient accountings, and self-interested use of the partition process—were deemed direct challenges to administration, with primarily equitable remedies (e.g., reimbursement, removal), aligning with DiGaetano v. DiGaetano.

3) Subject matter jurisdiction can be raised anytime; cannot be waived

The Court’s decision to request supplemental briefing and address jurisdiction sua sponte is grounded in In re Guardianship of K.B., 172 N.H. 646 (2019), which states subject matter jurisdiction may be raised at any time—including by the Court on appeal—and cannot be waived by party agreement.

4) Statutory interpretation methodology

The interpretive rules came from In the Matter of Kauble & Kauble, 176 N.H. 200 (2023), and harmonization principles from In re Guardianship of C.R., 174 N.H. 804 (2022). To define “express trust” (not defined in RSA 564-B), the Court followed In the Matter of Landgraf & Landgraf, 176 N.H. 724, 2024 N.H. 41, using common usage and dictionary guidance (here, Black’s Law Dictionary).

5) Concurrent multi-state trust/estate jurisdiction

To rebut any assumption that the Trust’s District of Columbia choice-of-law clause displaced New Hampshire jurisdiction, the Court referenced Bartlett v. Dumaine, 128 N.H. 497 (1986), and Wanda Feeley v. Clark Feeley, No. 2014-0311, 2014 WL 11485840 (N.H. Nov. 21, 2014) (non-precedential order), recognizing that more than one state’s courts may have concurrent jurisdiction over trust administration. It analogized to Estate of Mullin, 169 N.H. 632 (2017), where New Hampshire’s jurisdiction over an estate did not necessarily make it exclusive in the sense of precluding other states.

6) Waiver and preservation doctrine

Several cases framed appellate limits:

  • State v. Blackmer, 149 N.H. 47 (2003): inadequately briefed issues are deemed waived; issues noticed but not briefed are waived.
  • Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004): appellant bears burden to show issues were raised below; failure to comply with Sup. Ct. R. 16(3)(b) can be considered regardless of objection.
  • O'Malley-Joyce v. Travelers Home & Marine Ins. Co., 175 N.H. 245 (2022): preservation ensures the trial court has the first opportunity to correct errors and reach sound conclusions.
  • N.H. Dep't of Corrections v. Butland, 147 N.H. 676 (2002): preservation principles apply to issues arising after trial as a result of the court’s order.
  • State v. Mouser, 168 N.H. 19 (2015): issues arising post-order must be raised by a motion to reconsider to be preserved for appeal.
  • Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662 (2006): a party can waive an argument by conceding a position in the trial court (used here to treat Sarah’s tangible-personal-property-based trustee claims as waived once she disclaimed Trust ownership of such property).

B. Legal Reasoning

1) Partition: “special circumstances” and equitable assignment over sale

The appellants argued the probate court should have ordered a sale rather than award 34 Kings Highway to Sarah due to “deep-rooted animosity” and the parcels’ proximity. The Supreme Court rejected this, not because animosity is irrelevant, but because the probate court did consider it and still found no rational basis to deny Sarah the historic family property—especially where (i) neither sibling requested 34 Kings Highway, (ii) it had been in the family for over a century, (iii) Sarah had the “most genuine connection” to it, and (iv) the Trust had sufficient assets to equalize distributions.

The Court also credited the probate court’s practical reasoning: even a forced sale would not prevent Sarah from purchasing the property (or nearby property). Under the unsustainable-exercise-of-discretion standard, those findings supplied “an objective basis” supporting the equitable assignment.

2) Jurisdiction: express trust + administration-focused claims = RSA 547:3, I(d)

The jurisdictional analysis proceeded in two steps.

  1. Is this an “express trust” within RSA 564-B?

    Under RSA 547:3, I(d), probate has exclusive jurisdiction over “administration” of trusts described in RSA 564-B. RSA 564-B:1-102(a) applies to “express trusts.” Using Black’s Law Dictionary (via In the Matter of Landgraf & Landgraf), the Court found the mother’s written revocable trust—created with her express intent—qualifies as an express trust.

    The Trust’s District of Columbia choice-of-law clause did not negate subject matter jurisdiction because nothing in RSA 547:3 or RSA 564-B:1-102 makes jurisdiction contingent on New Hampshire substantive law governing the trust. Choice-of-law determines which substantive rules apply; it does not necessarily dictate the forum’s adjudicatory power.

  2. Do the counterclaims sufficiently connect to “administration”?

    Following Rogers v. Rogers and DiGaetano v. DiGaetano, the Court examined whether the claims were direct administration challenges and whether the remedies were equitable. Excluding allegations tied to tangible personal property (which Sarah effectively waived by asserting the Trust held none and that such items were part of the Maryland estate), the remaining counterclaims targeted quintessential trustee-administration conduct: loyalty, impartiality, good faith administration, reporting/accounting, and avoidance of self-benefit (with the Opinion citing related D.C. Code duties, including D.C. Code § 19-1308.01, § 19-1308.02-.03, and § 19-1308.13).

    Because those claims directly implicated how Nathaniel “administered, distributed, and accounted for Trust assets,” they fit within RSA 547:3, I(d).

3) Appellate disposition: affirmed without reaching merits of counterclaim challenges

The Supreme Court’s handling of the fee-reimbursement dispute is an important procedural lesson:

  • Matthew: His argument that the probate court erred in finding a breach (leading to fee reimbursement) was deemed waived for inadequate development under State v. Blackmer.
  • Nathaniel: He did not contest breach findings; he contested the scope of the remedy—arguing the probate court failed to segregate fees between successful and unsuccessful claims and impermissibly “penalized” him for filing partition. But because those issues arose from the court’s order, preservation required a motion to reconsider under State v. Mouser (and consistent with N.H. Dep't of Corrections v. Butland). The record did not show such a motion. Therefore, the Court declined merits review and also declined plain error review under Sup. Ct. R. 16-A.

C. Impact

1) A clarified jurisdictional roadmap for trust-related counterclaims in probate

The Opinion strengthens predictability around RSA 547:3, I(d) by confirming that probate jurisdiction extends to fiduciary-duty claims that are truly about trust administration—even when the trust instrument selects another jurisdiction’s law (here, District of Columbia). Practically, litigants should expect New Hampshire probate to adjudicate:

  • trustee self-dealing allegations (e.g., rent-free occupancy, misuse of trust funds);
  • accounting and reporting failures;
  • remedies such as surcharge-like reimbursement, removal, and equitable relief connected to trust governance.

This reduces incentives for forum objections grounded solely in a choice-of-law clause and shifts the focus to the statutory grant and the nature of the claim.

2) Partition outcomes: animosity is a factor, not a veto

The decision reinforces that interpersonal conflict—however intense—does not itself compel a forced sale where the trial court reasonably finds an equitable in-kind assignment is feasible and consistent with statutory factors. The Court’s acceptance of the “even if sold, Sarah could repurchase” rationale may appear pragmatic, but it also signals deference to trial-level equitable factfinding about what will actually reduce dispute and achieve fairness.

3) Litigation conduct and trustee exposure to fee reimbursement

Although the Supreme Court did not reach the merits of the fee-segregation argument, the affirmance leaves intact a significant remedy: the trustee was ordered to personally repay the Trust’s litigation costs to the extent Trust funds were used. Future trustees should treat this case as a cautionary example: where a trustee’s conduct is found disloyal or partial, fee shifting through reimbursement can be imposed as an equitable remedy, and appellate relief may be unavailable absent meticulous preservation.

4) Preservation: post-order challenges must be raised by reconsideration

The Opinion is also a procedural precedent in effect: if a party objects to the structure or scope of a remedy that becomes clear only upon issuance of the final order—such as the failure to segregate fees—the objection must be presented to the trial court via a motion to reconsider to preserve appellate review. This principle, applied here to defeat review, will influence strategy in probate (and other) appeals.

4. Complex Concepts Simplified

  • Partition: A court-supervised process for resolving co-ownership disputes. Instead of forcing a sale, a court can assign property to different parties and equalize value through offsets if that is “fair and equitable” (RSA 547-C:29).
  • Equitable discretion / “unsustainable exercise of discretion”: When a trial court decides a matter based on fairness considerations, the Supreme Court will not substitute its judgment unless the decision lacks an objective basis or is unreasonable.
  • Subject matter jurisdiction: The court’s power to hear the type of case. It cannot be created by agreement and can be raised at any time (In re Guardianship of K.B.).
  • Express trust: A trust intentionally created by the settlor, typically in writing. If it is an “express trust” under RSA 564-B, New Hampshire probate has exclusive jurisdiction over its administration under RSA 547:3, I(d).
  • Choice-of-law vs. jurisdiction: A clause selecting District of Columbia law tells the court which substantive rules to apply; it does not automatically determine which state’s court has power to hear the dispute.
  • Waiver vs. preservation: Waiver can occur by failing to develop an argument on appeal (State v. Blackmer) or by taking a contrary position below (Milliken v. Dartmouth-Hitchcock Clinic). Preservation requires raising issues in the trial court; if the issue arises after the order, it must be raised by reconsideration (State v. Mouser).

5. Conclusion

Moffat v. Srebro affirms two major themes in New Hampshire probate jurisprudence. First, partition under RSA chapter 547-C is a deeply equitable remedy, and appellate courts will not reweigh family dynamics where the probate court’s assignment has an objective basis. Second, and more broadly, the decision confirms that New Hampshire probate courts have exclusive jurisdiction under RSA 547:3, I(d) over fiduciary-duty counterclaims that directly challenge the administration of an express trust, even when the trust chooses another jurisdiction’s substantive law.

Procedurally, the case is equally instructive: challenges to remedies—especially fee-related orders—must be preserved through trial-court reconsideration when the alleged error appears only after the final order. In combination, these holdings shape both forum expectations for trust disputes and best practices for litigating (and appealing) trustee-misconduct and partition controversies.