SCOVT reverses trial court denial without reasons of beneficiary’s request to amend complaint to seek removal of trustee, but affirms denial of request for information, holding beneficiary has no right to information about a revocable trust even though the settlor is incapacitated.

 

1.    Procedure. Amending Pleadings. Trusts.   

     In re Trust of Marsha Milot, 2026 VT 7 [3/6/2026] 

    REIBER, C.J. Petitioner Jennifer Milot appeals the denial of her petition to open a trust action to obtain information about the administration and assets of a revocable trust whose settlor, Marsha Milot, is still alive. Petitioner claims the probate division erred by: failing to apply the correct legal standard when deciding to dismiss petitioner's action; failing to consider whether petitioner's information requests were "unreasonable under the circumstances" as required by statute; and concluding that under 14A V.S.A. § 603, co-trustees Valerie Wiederhorn and Curtis Hennigar owed no duty to provide information regarding the trust and co-trustees' administration to petitioner. We conclude that while the trust remains revocable, petitioner is not entitled to the information she seeks under § 813 of the Vermont Trust Code. However, we hold that the probate division erred by failing to consider petitioner's request to amend her complaint to seek removal of co-trustee Wiederhorn, and therefore reverse and remand for it to do so.

V   Vermont Rule of Probate Procedure 15(a) provides that leave to amend a petition "shall be freely given when justice so requires."  Petitioner asked for permission to amend her complaint to seek removal of co-trustee Wiederhorn under 14A V.S.A.§ 706. 14A V.S.A. § 706. Section 706 provides that "[t]he settlor, a cotrustee, or a beneficiary" may seek to have a trustee removed or replaced for "a serious breach of trust," a "lack of cooperation among cotrustees," or other enumerated reasons. The Official Comment to § 706  indicates that if a settlor is incapacitated, a beneficiary has the right to petition for trustee removal under § 706. The probate division dismissed the petition without addressing petitioner's request, effectively denying it. 

      Both Rule 15 and Vermont's common-law tradition "encourage liberality in allowing amendments to pleadings" when doing so will not prejudice the other party. Bevins v. King, 143 Vt. 252, 254, 465 A.2d 282, 283 (1983). While the trial court may deny an amendment if it would prejudice another party or is frivolous or made in bad faith, the court did not consider those factors here. Instead, it simply did not address the request, which was an abuse of discretion. See PeakCM, LLC v. Mountainview Metal Sys., LLC, 2025 VT 50, ¶ 18 (explaining that failure to exercise discretion is abuse of discretion). 

In sum, we hold that petitioner was not entitled to receive trust information under § 813 because the trust remains revocable while settlor is alive. However, we reverse and remand the dismissal order for the probate division to consider petitioner's request to amend her petition. In so holding, we take no position on whether settlor is in fact incapacitated, whether petitioner is a qualified beneficiary, or any other factual questions raised by this appeal. Those matters are for the probate division to resolve in the context of any further proceedings that occur on remand.

Reversed and remanded for the probate division to address petitioner's request to amend her petition to seek removal of co-trustee(s).

SCOVT Note re: "failure to exercise discretion is abuse of discretion" See Foman v. Davis, 371 U.S. 178 (1962) (Marshall, J, ):

Rule 15 (a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded . . .  Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

371 U.S. at 182. 

As a matter of first impression SCOVT recognizes tort of intentional interference with expectation of inheritance, but a Divided Court holds the claims in this case of IIEI, constructive fraud and unjust enrichment involve trust administration within the exclusive jurisdiction of probate.

 Dewdney v. Duncan, 2025 VT 26 [5/23/2025]

COHEN, J.   Plaintiffs Berol and Cordelia Dewdney appeal the civil division’s decision granting summary judgment to defendant Ralph Duncan, IV on plaintiffs’ claims for intentional interference with expectation of inheritance (IIEI), breach of contract, promissory estoppel, unjust enrichment, and constructive fraud.  We affirm.

In October 2011, Anna created a revocable inter vivos trust to receive the royalty income from her books.  Anna designated plaintiffs and defendant as beneficiaries of the trust with 40% of the income assigned to each plaintiff and 20% assigned to defendant.  At the same time, defendant executed his last will and testament in which he designated plaintiffs as his sole heirs if Anna predeceased defendant. Thereafter, Anna amended the trust and changed the distribution of the trust income to 25% for each plaintiff and 50% to defendant.  Plaintiff’s complaint in the civil division sought the creation of a constructive trust entitling them to all distributions exceeding defendant’s original 20% share and restitution of any amounts previously distributed to defendant that exceeded 20%.

 

The trial court ruled that IIEI was a cognizable cause of action in Vermont but that plaintiffs were required to first seek a remedy in the probate division.  The court determined that plaintiffs failed to establish their remaining claims

 

 Intentional Interference with Expectation of Inheritance

 

The Third Restatement, states that a defendant is liable for IIEI when: (a) the plaintiff had a reasonable expectation of receiving an inheritance or gift;  (b) the defendant committed an intentional and independent legal wrong;  (c) the defendant’s purpose was to interfere with the plaintiff’s expectancy;  (d) the defendant’s conduct caused the expectancy to fail; and (e) the plaintiff suffered economic loss as a result. Restatement (Third) of Torts: Liab. for Econ. Harm § 19(1) (2020).  The Third Restatement, however, also provides that an IIEI claim “is not available to a plaintiff who had the right to seek a remedy for the same claim in a probate court,”  Id. § 19(2) (the probate exhaustion rule.)

 

While we have not previously recognized the tort of IIEI, we conclude that the Third Restatement definition of IIEI, with its probate exhaustion requirement, is the appropriate definition to adopt.

 

Plaintiffs argue that the Third Restatement and cases from other jurisdictions distinguish between wills and inter vivos trusts for purposes of the probate-exhaustion rule.

 

Under Vermont law, the probate division is vested with exclusive jurisdiction over claims brought by a trustee or beneficiary concerning trust administration.  14A V.S.A. § 203(a)(“ The Probate Division of the Superior Court has exclusive jurisdiction of proceedings in this State brought by a trustee or beneficiary concerning the administration of a trust”); 4 V.S.A. § 35 (“The Probate Division shall have jurisdiction of . . .(3) the administration of trusts pursuant to Title 14A”)

 

Other jurisdictions do not have statutory mandates vesting the probate division with exclusive jurisdiction over the administration of trusts as we do in Vermont. Accordingly, we hold that an IIEI claim is not available to a plaintiff who had the right to seek a remedy for the same claim in probate court.

 

Plaintiffs argue that they did not have the right to make their claim in the probate division because their claim does not concern the administration of the trust, but instead seeks a remedy for defendant’s undue influence, duress, and fraud in inducing Anna to amend the trust. In Collins v. Collins. 2017 VT 70, we held that the was the probate division was the proper forum for challenging the settlor’s capacity to make a trust Challenging the settlor’s ability to change the beneficiary necessarily implicates the administration of the trust because the trustee must know to whom to administer the trust property.  Collins, 2017 VT 70, ¶ 15. Similarly, plaintiffs challenge whether Anna was unduly or fraudulently influenced to change the trust distributions between beneficiaries involves the administration of the trust and therefore falls within the exclusive jurisdiction of the probate division.

 

Plaintiffs were barred from bringing their IIEI claim in the civil division because they did not first pursue it in the probate division.  We therefore affirm the court’s decision to grant summary judgment for defendant on this claim.

 

 Unjust Enrichment

 

We conclude that plaintiffs were required to bring their unjust enrichment claim in the probate division. 

 

To succeed on a claim for unjust enrichment, a plaintiff must prove three things: "(1) a benefit was conferred on defendant; (2) defendant accepted the benefit; and (3) defendant retained the benefit under such circumstances that it would be inequitable for defendant not to compensate plaintiff for its value." Beldock v. VWSD, LLC, 2023 VT 35, ¶ 68. A recipient of a donative transfer may be liable to a claimant for unjust enrichment if the recipient diverted the donative transfer by fraud, duress, or undue influence; this includes a transfer through an inter vivos trust. See Restatement (Third) of Restitution and Unjust Enrichment § 46 (2011)

Plaintiffs asserted their claim for unjust enrichment under the theory that defendant induced Anna to amend the trust and increase his share of trust distributions through fraud and undue influence, thus reducing their expected shares and making it inequitable for defendant not to compensate them.

 

Like plaintiffs’ IIEI claim, this claim challenges the administration of the trust because plaintiffs, the trust’s beneficiaries, seek to challenge the amended distribution of the trust property, and the distribution of the trust is a main function of trust administration.  Therefore, plaintiffs were required to bring their claim in the probate division.  14A V.S.A. § 203(a); Collins, 2017 VT 70, ¶ 15.  Our holding should not be interpreted to mean that claims of unjust enrichment relating to trusts will always be under probate jurisdiction.  Here, however, plaintiffs’ underlying allegations of fraud and undue influence over the amendment to the trust distributions fall within the probate’s exclusive jurisdiction over administration of trusts

 

 Constructive Fraud

 

Similarly. Plaintiffs’ constructive fraud claim implicates the administration of the trust, which the Legislature has placed in the exclusive jurisdiction of the probate division.  Our holding should not be interpreted to mean that claims of unjust enrichment relating to trusts will always be under probate jurisdiction.  Here, the underlying allegations of fraud and undue influence over the amendment to the trust distributions fall within the probate’s exclusive jurisdiction over administration of trusts.   

 

 Plaintiffs’ argument that they should be allowed to amend their complaint to plead actual fraud based on these same facts is moot because plaintiffs were required to seek a remedy in the probate division in the first instance for this type of challenge.   

 

Promissory Estoppel

 

  A plaintiff must show the following for a promissory estoppel claim: “(1) defendant made a promise to [the promisee] that defendant should have reasonably expected to induce action or forbearance; (2) [the promisee] relied on the promise to [the promisee’s] detriment; and (3) injustice can be avoided only by enforcement of the promise.”  Pettersen v. MonaghanSafar Ducham PLLC, 2021 VT 16, ¶ 11. Implicit to a promissory estoppel claim is a showing that the defendant breached a promise.  See Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 9 (2002).

 

Here, a reasonable jury could conclude from the evidence that defendant made a promise to Anna to make plaintiffs his sole heirs. However, defendant did not break this promise because defendant has not positively and unequivocally revoked his promise, nor has he removed plaintiffs from his will.  Accordingly, plaintiffs cannot show detrimental reliance, because Anna was not harmed by any breach of the promise.  We therefore affirm the court’s decision to grant defendant summary judgment on this claim.

 

 

WAPLES, J., dissenting.   I agree with the majority that Vermont should recognize claims for intentional interference with an expectation of inheritance (IIEI) and adopt the definition of such claims from the Restatement (Third) of Torts: Liability for Economic Harm § 19 (2020).  I disagree, however, that defendant was entitled to summary judgment on this claim.  The undisputed facts do not establish that plaintiffs “had the right to seek a remedy for the same claim in a probate court.”  Id. § 19(2).  I would reverse the trial court’s decision on the IIEI claim and remand for additional proceedings.  I therefore respectfully dissent. 

 

 I do not find Collins persuasive on the question of whether plaintiffs’ claim here “implicates the administration of the trust.” The Restatement’s explicitly recognizes that a probate court “is unable to provide a remedy for wrongful conduct in relation to a nonprobate transfer, such as a transfer by inter vivos trust.”  Id. § 19 cmt. c.    In a similar vein, the UTC’s reference to the probate division’s “exclusive jurisdiction of proceedings . . . brought by a trustee or beneficiary concerning the administration of a trust” in 14A V.S.A. § 203(a) should not be read to conflict with the UTC’s express direction that “[a]n action against a beneficiary or other person for intentional interference with an inheritance or gift” is not a trust contest.  Id. § 604, official cmt. 

 

It is not clear from the undisputed facts that plaintiffs’ “challenge to the trust amendment implicates the administration of the trust,”  as opposed to falling into the category of “other proceedings involving a trust” for which the probate court “has concurrent jurisdiction with other courts of this State,” 14A V.S.A. § 203(b).  As plaintiffs explain, they are not seeking to hold a trustee liable for misconduct or mishandling of trust assets in their capacity as a trustee.

 

I believe we should draw a distinction between trusts and wills for purposes of determining the viability of an IIEI claim.  I would reverse the trial court’s summary judgment decision in defendant’s favor and I therefore respectfully dissent.  

How cited

SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

SCOVT Reverses summary judgment in will contest because of conflicting evidence as to whether testator intended the will to be a conditional or absolute will

In re Holbrook, 2017 VT 15 

REIBER, C.J. The question presented in this will contest is whether the trial court correctly determined on summary judgment that the testator intended a last will and testament which she executed on the eve of surgery to be absolute rather than contingent on her surviving the surgery. We conclude that summary judgment was premature in this case because material factual issues remained in dispute concerning the testator’s intent, and therefore reverse.

The court found that neither of the competing inferences from the evidence was "more compelling than the other." and concluded that "the presumption against intestacy" must control, thus precluding a construction of the will as conditional.

It is correct that there is a general reluctance in estate law to find intestacy, hence the general preference for a clear expression of contingency. But when the evidence is in conflict on a genuine, material issue of fact—in this case whether testator intended the will to expire or to remain in effect after she survived her surgery—the usual and proper course is not to ignore that evidence as "ambiguous" but to deny the motion for summary judgment and permit the case to proceed to trial, where the trier of fact may weigh all of the evidence, assess the credibility of the witnesses, and ultimately resolve the factual dispute. The court could not rely on "presumptions."

Because the parties here offered conflicting evidence as to whether testator intended the will to be a conditional or absolute will, the case must be remanded for a trial to resolve that issue.

 Reversed and remanded

Beneficiaries who successfully defended settlor’s capacity to execute trust not entitled to attorney’s fees.

Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 (06-Dec-2013)

BURGESS, J. Plaintiffs appeal from a judgment based on a jury verdict finding that the testator Phyllis Agan possessed the capacity and free will to execute a trust, leaving sizable bequests to defendants, various nonprofit organizations in the Town of Ludlow, Vermont. Defendants cross-appeal, claiming that the trial court erred in denying their requests for attorney’s fees and prejudgment interest. We affirm.

The motion for attorney’s fees had two bases. First, defendants relied on 14A V.S.A. § 1004, which provides: “In a judicial proceeding involving the administration of a trust, the probate division of the superior court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” Second, defendants argued that the court should invoke its inherent equitable power to award attorney’s fees in the interests of justice. See In re Gadhue, 149 Vt. 322, 327, 544 A.2d 1151, 1154 (1987) (noting the “historic powers of equity courts to award attorney’s fees as the needs of justice dictate”). The trial court observed that this was a contest between beneficiaries and that defendants were defending their interests in receiving the gifts and no other purpose related to the trust itself. 

Even assuming that “administration” of the estate could be construed to include a contest between beneficiaries over the testator’s capacity or free will in establishing the trust, the issue would remain whether “justice and equity” require an award of attorney’s fees under the statute—a question which in this case is largely indistinguishable from whether the court abused its discretion under its common-law authority in ruling that attorney’s fees were not required for “reasons of justice.” On this issue, we discern no basis to conclude that the court abused its discretion in determining that this dispute between beneficiaries under the trust implicated no considerations of justice or equity that warranted an award of attorney’s fees. See Knappmiller v. Bove, 2012 VT 38, ¶ 4, 191 Vt. 629, 48 A.3d 607 (mem.) (observing that awards for attorney’s fees are generally reviewed for abuse of discretion)

Trusts and estates. The amended POA statute, enacted in 2002, invalidates gift transactions made after its effective date, even though they would otherwise have been valid under the statute at the time the POA was signed

In re Estate of Lovell, 2011 VT 61 (Reiber, C.J. )

Defendants Charles and Hubert Lovell appeal a grant of summary judgment to plaintiff, Duane Amsden, in which the trial court found that Charles Lovell could not, pursuant to his powers as his father’s attorney-in-fact, transfer title of his father’s farm to himself and his brother, Hubert Lovell, where the power of attorney failed to explicitly grant the power to make such a gift.  We affirm.

Here, unlike Kurrelmeyer, 2006 VT 19, ¶ 2 , the property transfer occurred after the effective date of the amended POA statute.  Under 14 V.S.A. § 3515(b): “[a]ny term of a power of attorney, executed after the effective date of [the POA statute] . . . which is otherwise inconsistent with, the provisions of this subchapter, shall be void and unenforceable.” The POA granting Charles Lovell authority to make transfers in his father’s stead was created prior to the effective date of the amended POA statute; however, he exercised the term providing him power of transfer after the effective date.  The term providing the power to transfer did not give him the explicit power to make gifts, as required by the amended POA statute, and thus an attempt to exercise authority pursuant to that term after the statute’s effective date was void and unenforceable.

Administrator’s sale set aside because of unspoken limitation that property be “ kept in the family”.

In re Estate of Doran (2007-483) (26-Feb-2010) 2010 VT 13 (Burgess, J.) (Reiber, C.J. and Dooley, J., dissenting.)
This case involves a dispute among family members regarding the disposition of the estate of Raymond Doran, who died intestate in February 2004. There are twenty-one interested heirs, including Raymond’s three surviving siblings and the children of four siblings who predeceased Raymond. At issue are 187 acres of real property near the town of Castleton.

The estate’s co-administrators obtained a license to sell the property, and they held a private auction limited to family members. Appellant James Doran, one of Raymond’s nephews, was the highest bidder.

The probate court confirmed the bids, and Raymond’s sister, Catherine Pellegrino, appealed this order to the superior court. Shortly thereafter, James assigned his interest in the property to a limited liability corporation, whose members included himself, his attorney in this case, Harry Ryan, and other nonfamily members.

The superior court struck the probate orders, finding that James had acted in bad faith, and it remanded the case to the probate court. James appeals from this decision, and we affirm because there was evidence the intestate wanted the property "kept in the family."

Reiber, C.J. and Dooley, J., dissenting on grounds that the superior court erred in concluding that written formalities could be dispensed with in the name of equity. Underlying legal principle prevents trial courts from placng restrictions on the alienation of property by after-the-fact guesswork, as opposed to advanced planning by formal written instruments, such as wills, covenants, and limited licenses to sell. The other heirs could have sought a limitation on the license to sell that prevented resale, or defined the conditions under which it would be allowed. In the absence of such a limitation, there is no ground to interfere with a bona fide sale under the unrestricted terms of the license. The majority’s conclusion to the contrary reduces probate administration to a swearing contest.

Trusts and Estates. Disclaimers are irrevocable, but are voidable for duress, coercion, undue influence incompetence, or other equitable basis.

Burden of proof shifts in “suspicious circumstances” where attorney represents both sides. Carvahlo v. Estate of Carvahlo, 2009 VT 60 (Dooley, J.)

This case requires us to decide whether and in what circumstances a person who has disclaimed an interest in property under the Uniform Disclaimer of Property Interests Act, codified at 14 V.S.A. §§ 1951-1959, may revoke that disclaimer. Persons wishing to disclaim interests in property devolving to them by will or intestate succession may do so in writing within nine months of the owner’s death. Id. § 1952(a). The disclaimer “is binding upon the disclaimant,” id. § 1954(c), and the disclaimed property passes “as if the disclaimant had predeceased the decedent,” id. § 1954(a). We hold that, while statutory disclaimers are generally revocable only in limited circumstances, the superior court erred by granting summary judgment to Ms. Carvalho’s nephew who opposed revocation of the disclaimer. Accordingly, we remand the matter for the court to hold a hearing on whether the circumstances warranted allowing revocation of the disclaimer.

Agnes Carvalho appeals the superior court’s summary judgment order precluding her from revoking a disclaimer of her interest in her son’s estate. Ms. Carvalho was a ninety-two-year-old widow when her son Donald, who was her only child and had been living with her, unexpectedly died. The trial court found that she “was deeply upset and distraught after Donald’s death.” Three weeks later, nephew took Ms. Carvalho to the office of the attorney representing him in his capacity as executor of Donald’s estate. Ms. Carvalho would on that day sign her own will, and do an advanced directive and a financial power of attorney and a disclaimer, the latter of which had not been prepared or reviewed by her in advance of the meeting. The superior court found that “there are facts in dispute about how much Ms. Carvalho understood,” and that “she does not appear to have understood that the effect” of the disclaimer was to deprive her of the assets of her son’s estate during her lifetime. The court nevertheless concluded nephew was entitled to judgment as a matter of law, because Ms. Carvalho was not coerced or unduly influenced.

On appeal, Ms. Carvalho claims that the superior court erred in: (1) ruling that disclaimers are irrevocable absent incompetence, duress, coercion, or undue influence; (2) finding that there were no genuine issues of material fact as to whether she was incompetent or under duress or coercion when she executed the disclaimer.

On the weight of the case law, by virtue of our statutory text, and out of concern for the stability of property rights, we hold that disclaimers irrevocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument. Disclaimers are not revocable simply because the revocation is filed within the statutory time period for filing disclaimers, even if there is no prejudice.

A disclaimer can be revoked in situations involving incompetence, fraud, undue influence, or other accepted bases for cancellation of instruments. Accordingly, if the fact finder on remand in this case were to find undue influence, coercion, or incompetence, revocation of the disclaimer would be warranted, particularly given that it was executed within the statutory time frame for disclaimers and before any property interests were affected.

The attorney testified at his deposition that he considered Ms. Carvalho to be his client, but he billed the estate for his services in having her execute the disclaimer. Thus, not only was the execution of the disclaimer facilitated by the contingent beneficiary of the estate, but the attorney who presented the disclaimer to Ms. Carvalho appeared to be representing the interests of parties with potentially conflicting interests. These facts amount to suspicious circumstances as a matter of law, which places the burden on nephew to establish affirmatively that the disclaimer was not procured by undue influence or coercion.

We conclude that the facts of this case preclude summary judgment in favor of nephew. As noted, the facts establish “suspicious circumstances” that impose upon nephew the burden of showing the absence of undue influence or coercion with respect to Ms. Carvalho’s signing of the disclaimer. On remand, the fact finder must determine, following an evidentiary hearing, whether nephew has met his burden of demonstrating a lack of undue influence, duress, or coercion with respect to Ms. Carvalho’s signing of the disclaimer. In assessing whether nephew has met this burden, the court should consider the effect of the attorney obtaining the disclaimer from Ms. Carvalho, his client, while acting as attorney for the estate and its executor. The issue cannot be decided on summary judgment.