Background
Nathaniel Moffat, Nathaniel Moffat, and Sarah Srebro are siblings whose parents died in 2020 and 2021. Their mother’s will, probated in Maryland, left the residue of her estate to the Pamela Dawson Moffat Revocable Trust, which required the trustee to distribute Trust property equally among the three children. Nathaniel served as both executor of the mother’s will and trustee of the Trust.
The Trust held two neighboring Hancock, New Hampshire properties: 34 Kings Highway — a colonial home on 20 acres with an adjacent barn parcel that had been in the family for generations — and 33 Kings Highway, a separate home that Nathaniel had purchased in 2020 using the mother’s funds, intending it as a joint residence. After the mother’s death, Nathaniel continued to live at 33 Kings Highway rent-free and used Trust funds to renovate it for his personal benefit. In June 2023, Nathaniel, in his capacity as trustee, petitioned the New Hampshire probate court to partition the two properties, requesting that 33 Kings Highway be awarded to him and the other property sold.
Sarah responded by moving to dismiss and filing three counterclaims alleging that Nathaniel breached his fiduciary duties as trustee — by occupying Trust property without paying rent, funding personal renovations with Trust money, providing deficient accountings, and manipulating the partition proceeding to serve his own interests. Sarah requested that 34 Kings Highway, the multigenerational family home, be awarded to her. After a four-day trial, the probate court awarded 34 Kings Highway to Sarah and 33 Kings Highway to Nathaniel, and ordered Nathaniel to personally reimburse the Trust for all attorney’s fees and expenses incurred in the litigation.
The Court’s Holding
The New Hampshire Supreme Court affirmed on all issues. On the partition ruling, the court held that the probate court did not abuse its broad equitable discretion in awarding 34 Kings Highway to Sarah. The record supported the probate court’s findings that neither sibling had requested the property, the property had been in the family for over a century, Sarah had the most genuine connection to it, and the Trust held sufficient assets to offset the apportionment. The court further noted that even a forced sale would not have prevented Sarah from purchasing property near Nathaniel, undercutting the appellants’ contention that proximity would guarantee future conflict.
On jurisdiction, the court — raising the issue sua sponte — held that the probate court properly exercised subject matter jurisdiction over Sarah’s counterclaims under RSA 547:3, I(d), which grants the probate court exclusive jurisdiction over the administration of express trusts governed by RSA chapter 564-B. The Trust qualified as an express trust, and Sarah’s counterclaims directly challenged how Nathaniel administered, distributed, and accounted for Trust assets, satisfying the dual test of relating to a trust and seeking primarily equitable relief. The Trust’s District of Columbia choice-of-law provision did not divest the New Hampshire probate court of jurisdiction.
On the merits of the counterclaims, the court declined to reach Nathaniel’s challenge to the scope of the fee-reimbursement order, holding it unpreserved. Because the reimbursement order arose from the court’s post-trial ruling, Nathaniel was required to raise his segregation-of-fees argument in a motion for reconsideration — which he failed to file. The court also deemed Matthew’s challenge to the fiduciary-duty findings waived for inadequate briefing.
Key Takeaways
- A trustee who occupies trust property rent-free and funds personal renovations with trust assets, while resisting distribution to a beneficiary without legitimate justification, can be found to have breached fiduciary duties of loyalty, impartiality, and good faith.
- As a remedy for breach of fiduciary duty, a probate court may order the trustee to personally reimburse the trust for all litigation fees and expenses — not merely those tied to claims on which the beneficiary prevailed — and a trustee who fails to challenge the scope of that remedy in a motion for reconsideration forfeits the argument on appeal.
- New Hampshire probate courts have exclusive subject matter jurisdiction over the administration of express trusts under RSA 547:3, I(d), including breach-of-fiduciary-duty counterclaims that directly concern how a trustee administered, distributed, and accounted for trust assets, regardless of the trust’s contractual choice-of-law provision.
- In partition proceedings under RSA chapter 547-C, courts have broad equitable discretion to award property in kind rather than order a sale, and may properly consider a beneficiary’s familial connection to property, the absence of competing claims from other parties, and the availability of other trust assets to equalize distributions.
Why It Matters
This decision reinforces that trustees who self-deal — residing in trust property, funding personal renovations with trust funds, or stonewalling distributions to advance personal interests — face not only removal but personal liability for the full cost of trust litigation. The ruling signals that courts will not parse fee awards claim-by-claim when a trustee’s pervasive misconduct necessitated the entire proceeding, and that trustees must promptly seek reconsideration of any post-trial remedy they find overbroad or risk waiving the argument entirely.
The jurisdictional analysis also provides a clear framework for New Hampshire practitioners: breach-of-fiduciary-duty claims against a trustee belong in probate court when they go to the heart of trust administration, even if the trust is governed by another state’s law. Attorneys advising trustees or beneficiaries in multi-state trust disputes should account for New Hampshire’s broad probate jurisdiction when choosing the forum for such claims.