New Hampshire has long been known as In fact, it is 's discreet the "Live Free or Die" state. First used style and lack of self-promotion that during the French Revolution, this phrase account for its relatively low profile is among the most widely known state among the states considered to be mottos. New Hampshire's most premier venues in which to site trusts.1 In celebrated Revolutionary War soldier, one sense it's ironic because discretion and a low profile are exactly what trust clients seek.

The Citizens' Legislature Given its libertarian-leaning foundation, it is not surprising that New Hampshire has always been regarded as a pro-business, low-tax state. It has earned that reputation well. Its legislature is referred General John Stark, made the slogan to as the "Citizens' Legislature" because famous when he used it in a toast given there are no professional politicians, but in 1809. Perhaps he knew of Patrick rather people from a wide variety of Henry's similar sentiment expressed in occupations who are paid $200 per term, 1775 by exclaiming "Give me liberty or with no retirement benefits. give me death!" It is also not surprising that over time, this Regardless of its origin, the phrase "Live legislature has produced and protected a Free or Die" continues to capture the culture of low taxes. There is no income essence of a philosophy held dear in New tax, no sales tax, no capital gains tax, no Hampshire, a philosophy that values gift tax, and no estate tax. individualism and small government over bureaucracy, thrift over excess, and Its government also has a reputation for modesty over flash. efficiency and low corruption, and the

*Managing Director and General Counsel, Hemenway Trust Company LLC, Salem, New Hampshire; and partner at Hemenway & Barnes LLP, Boston, MA. The author wishes to thank Charles R. Platt, Esq. for his help with case law research and providing feedback.

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percentage of New Hampshire residents These statistics clearly demonstrate a who work for state and local government legislature that works well regardless of as compared to the private sector is political shifts and a bi-partisan among the lowest in the nation.2 commitment to maintaining the state's well-earned status as a premier trust New Hampshire's legislature is also one jurisdiction. of the most open and accessible in the country, earning a grade of "A” from the A Dedicated Trust Court Open States Legislative Data Report Card based on how reliable, complete and Many of the states that are considered accessible its data is to the general premier trust jurisdictions have public.3 legislatures that are cooperative, meaning they have By contrast, of the Given its libertarian-leaning proven their support of other premier trust foundation, it is not surprising that the state's trust industry jurisdictions, New Hampshire has always been by enacting multiple and regarded as a pro-business, low- favorable statutes. each tax state . . . Its legislature [has] no received a grade of professional politicians, but rather The judiciary, however, "C"; while , people from a wide variety of is where the rubber will and occupations who are paid $200 per meet the road because each term, with no retirement benefits. that is where a judge received a "B." must enforce the statutes, often in a case What may be more noteworthy is the with a set of "bad facts" that pressure the legislature's dedication to creating a judge for a judicial modification of the premier trust jurisdiction regardless of the statute. And most of the modern trust politics of the moment. Since New features4 now available in the premier Hampshire adopted the Uniform Trust states are untested in the courts, Code in 2004, it has passed ten separate including Delaware.5 laws improving its statutory framework for trusts. Thus it is important to take a close look at a state's judiciary to gain a level of Only two of those statutes were enacted comfort that it will decide cases in a by a Republican-controlled government. consistent, predictable manner Six of the ten were enacted when control regardless of politics or public opinion. was split between Democrats and After all, if a court upholds a statute in Republicans, and two were passed when the face of “bad facts” which set public Democrats controlled both the legislative opinion strongly against applying the and executive branches. Significantly, the statute, it surely will uphold that statute in two statutes passed when Democrats disputes that are less charged with moral controlled all included very substantial implications. updates to decanting, self-settled spendthrift trusts, and expansion of Before turning to the long line of cases virtual representation. that demonstrate New Hampshire courts’ consistency and predictability, it is important to note that New Hampshire is

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one of the only states to create a specific In contrast to these states, New focus area on within its court Hampshire’s trust docket focuses system. The New Hampshire “trust exclusively on complex trust litigation and docket” is dedicated entirely to disputes its presiding judge has over 25 years of involving trusts. As such, a person who experience on the bench. This makes it establishes a trust in New Hampshire can more likely that the court will reach the take comfort that any future dispute will right result, which not only lowers be settled by a judge uniquely qualified expenses but creates sensible common to hear the case. law. In most states, the probate court handles A Respectful Judiciary trust matters but the overwhelming majority of cases for probate courts Turning now to proof that New involve family law, including divorce and Hampshire’s courts will handle trust adoption. Therefore probate court judges disputes in a consistent and predictable are not necessarily well equipped to manner, its judiciary has a long tradition handle complex cases involving cutting- of restraint and discretion, favoring a edge trusts. And even if a state has a "plain read" of a statute or contract and high caliber supreme court that is likely to carefully avoiding “legislating from the correct any mistakes bench.” In the trust made by lower court The New Hampshire “trust docket” is context, this translates judges, the costs and dedicated entirely to disputes to deference to the delay of appealing all involving trusts. Its presiding judge settlor's intent as the way to the has over 25 years of experience on expressed in the trust supreme court can be the bench. instrument. It also exorbitant. reflects a deep-seated belief in the division Interestingly, of the other states between the legislature as the maker of considered premier trust jurisdictions, laws, and the judiciary as the interpreter three do not even have separate probate of laws. courts (never mind a court devoted exclusively to trusts). South Dakota has its As evidence of this long history, consider Circuit Court; Nevada its District Court; the following: and Alaska has its Superior Court. All of In 1942, the New Hampshire Supreme them combine trust disputes in with not Court stated: "It is no part of the judicial only divorce but also nearly every other function to add to a statute by type of civil dispute, and in the case of interpretation, provisions not expressed Alaska, even some criminal cases. therein."7 In Delaware, the Court of Chancery, In 1957, the court stated "we will not which handles trust disputes, is known redraft the [New Hampshire] constitution primarily for its work on corporate law but in an attempt to make it conform to an it actually has an extraordinarily heavy intention not fairly expressed in it," as work load involving subject matter areas well as "[it is the] duty of the judiciary to as diverse as real estate, commercial and interpret the law, not make it."8 contractual matters, title issues, divorce, adoption and finally, trusts and estates.6

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In 1992, it said "we regard it as a well The New Hampshire Supreme Court settled and unquestioned rule of looked at the plain language of the construction that the language used by spendthrift statute, which provided only the legislature, in statutes enacted by two exceptions to the rule that them ... is to be always understood and spendthrift provisions are valid and explained in that sense in which it was protect trust assets from creditors. The used at the time when ... the laws were first exception was self-settled trusts and adopted."9 the second was fraudulent transfers. This case involved neither. And in 2005, the court declined to read into the state's constitution a judicial right Despite what must have been intense to look into whether the state's pressure and unanimous public opinion legislature violated its procedural rules.10 to rule against a despicable pedophile Here there was an allegation that certain and in favor of the victim, the court informal deliberations among legislators declined to question the wisdom of a held in private violated the public's right statute on the basis of public policy, of access and right to know. noting that it is the legislature's role to determine whether there should be an Demonstrating its respect for separation exception for tort creditors.13 In short, of powers, the court stated "[j]ust as the the court refused to change the statute legislature may not invade our province due to its deep seated belief that the of procedural rulemaking for the court legislature, not the courts, make the laws. system, we may not invade the legislature's province of internal Appointed Versus Elected Judges procedural rulemaking ..."11 The Scheffel decision highlights an Steadfast in the Worst of Cases important facet of the New Hampshire judiciary: judges are appointed, not Perhaps no case better demonstrates the elected, and serve until retirement (no New Hampshire courts' determination to later than age 70). uphold the settlor's intent and to respect the separation of powers than the 2001 Recent studies show that appointed case Scheffel v. Krueger.12 judges, who do not face the pressure of public opinion or spend time This case involved the ultimate set of campaigning and otherwise wooing the “bad facts.” It was brought by a parent of public, outperform judges who are a minor who had been assaulted by a elected. A study published in 2013 pedophile who recorded the crime and concluded that: "justices that are posted it on the internet. The plaintiff shielded from voters' influence ... on sought to recover assets from a average (i) have better information, (ii) are “spendthrift” trust set up by the more likely to change their preconceived defendant's grandparent. A spendthrift opinions about a case, and (iii) are more trust is generally protected from the effective (make less mistakes) than their creditors of its beneficiaries, which elected counterparts . . . "14 includes plaintiffs who successfully sue a beneficiary. The facts of Scheffel are such that any elected judge who had ruled in favor of

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the defendant surely would have lost the The central issue was whether New next election. There would have been Hampshire's spousal elective share, which tremendous public pressure on the on its face applies to one's "estate," judge, undoubtedly stoked by saturated would apply to the trust assets. media coverage and viral social media posts, to find a way to allow the victim to The surviving spouse argued that the reach the assets of the spendthrift trust. transfer to the trust was illusory and pointed to New York caselaw where the Such a holding, as just as it may seem, court created the “illusory transfer” would have flown in the face of the clear, doctrine. That doctrine states that a unambiguous terms transfer is illusory of New Hampshire's Justices that are shielded from voters’ unless the transferor spendthrift statute influence…on average (i) have better spouse relinquishes and created information, (ii) are more likely to ownership and uncertainty for people change their preconceived opinions control of the establishing trusts about a case, and (iii) are more property in good with assets they wish effective (make less mistakes) than faith. Because a to protect for their their elected counterparts. settlor can amend or descendants against revoke a revocable divorce and attacks from other creditors. trust at any time, he or she has not The Scheffel case is now included in law relinquished control over its assets. treatises and law school curriculum as a textbook case of upholding a settlor's In declining to adopt the illusory transfer intent to protect trust assets from the doctrine (and thus refusing to create new beneficiary's creditors.15 law), the Supreme Court of New Hampshire stated that: Presently there are 38 states that elect judges to at least one of their courts.16 "We believe that our test, which focuses Alaska, South Dakota, and Tennessee are on objective manifestation of the among those states. New Hampshire is transferor's intent, properly balances [the not. This may well be an important policies of protecting a surviving spouse indicator of a state court's consistency versus allowing a spouse to freely transfer and reliability over time. property]. If the legislature considers [this test] to be an improper balancing of Decades of Consistency these policies, it can adopt the [illusory transfer doctrine] or any other provision New Hampshire's tradition of judicial which it believes correctly balances these restraint long precedes Scheffel v. policies."17 Krueger. In the 1983 case of Hanke v. Hanke, the Supreme Court of New In 2001, the New Hampshire Supreme Hampshire expressly declined to create Court in Robbins v. Johnson18 refused to the "illusory transfer doctrine," which expand the state's "pretermitted heir" courts of other states such as New York statute to include lifetime trusts. A had created under similar circumstances. pretermitted heir is someone who is unintentionally omitted from the will. In In Hanke, the decedent had transferred such a situation, a pretermitted heir 98% of her assets to a revocable trust. statute, which require that a testator

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expressly disinherit a descendant, would provided for discretionary distributions, award the forgotten heir a share of the and the relevant statute, which states that inheritance. a discretionary beneficiary has no vested right or property interest, but rather a The plaintiff in Robbins argued that the "mere expectancy." New Hampshire pretermitted heir statute should apply to the decedent's lifetime A True Focus on Settlor's Intent trust as a matter of public policy because such trusts are commonly used as will The New Hampshire judiciary has also substitutes, a practice that was not in cemented its reputation for making the place when the legislature enacted the settlor's intent, as evidenced by a plain law. read of the trust instrument, a critical lens through which to interpret a trust. The court looked to the plain language of the statute, which says it applies to wills For example, the 2006 case Appeal of 21 but makes no mention of trusts, and David Lowy dealt with a trust set up by therefore held that the statute only parents of a developmentally-disabled applies to wills, and not trusts. In its adult son. The court ascertained that the holding, the court wrote, "[w]e decline purpose of the trust was to qualify as a the plaintiff's invitation to construe the special needs trust for purposes of statute contrary to its plain meaning."19 Medicaid benefits. The court made this determination by reading the trust, which More recently, in 2011 the Supreme stated such purpose expressly. Court of New Hampshire in the Tamposi case upheld the terms of a trust by again The trust contained an extraneous phrase employing a plain read of a trust that theoretically could have resulted in instrument and refusing to look to the beneficiary being disqualified from extraneous factors.20 Medicaid, but the court held that when viewed through the lens of the settlor's Here the issue was whether a beneficiary intent as plainly stated in the trust who had consistently received instrument, the phrase could not be distributions from a trust for 15 years construed in such a way and therefore should have to include future trust the trust did qualify as a special needs distributions as income in a divorce trust. proceeding when determining how to 22 divide the marital estate. Under the trust, In the 1986 case of Bartlett v. Dumaine, the beneficiary was eligible to receive the New Hampshire Supreme Court distributions for her "education and focused on the settlor's intent in maintenance in health and reasonable upholding a non-traditional trust comfort" but the trustee was not required arrangement with unconventional to make distributions to her. investments and business practices. Despite the well-established pattern of ln refuting claims for breach of fiduciary distributions, the court held that no part duties brought by the beneficiaries, the of the trust would be subject to the court made particular note of the fact that divorce proceeding. The court looked no the settlor established this arrangement further than the trust instrument, which

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as a highly­customized vehicle from example, the assets of a revocable trust which to run his business similar to what are fully exposed to the settlor's he had employed during his life. In its creditors. Many view DAPTs as analysis, the court set forth some of the problematic because they allow a person underpinnings for separating trustee to access trust assets for their own functions among different individuals or purposes but deny access to that entities, which decades later would person's legitimate creditors. These develop into a central tenet of many of critics argue that such vehicles may today's modern trust statutes. benefit those of low moral turpitude and encourage them to engage in Consistency Across Disciplines objectionable behavior.

New Hampshire courts have not just Take the case of Battley v. Mortensen,24 been consistent in areas involving trust for example, where after an expensive disputes; they have proven their reliability divorce Mr. Mortensen transferred about in numerous areas of the law. Although a $60,000 of real estate and $100,000 of detailed discussion here is outside the cash to an Alaska DAPT, naming his scope of this paper, many such cases mother a trustee and himself and his involve contract disputes, while others descendants as beneficiaries. He then involve real estate, tax and constitutional proceeded to run up $250,000 of 23 issues. personal credit card debt and declared A Happy Lack of DAPT Caselaw bankruptcy four years later, just after the Alaska statute of limitations had expired Many in the legal community appear to for the funding of the trust. His plan be anxiously awaiting a case approving apparently was to wipe out the $250,000 so-called "domestic of debt via asset protection trusts" Certain states, including Nevada, bankruptcy and still (DAPTs), also referred South Dakota, and Alaska, have very have access to the to as self-settled aggressive DAPT statutes. Their DAPT assets. spendthrift trusts. statutes could allow a person to These somewhat establish a DAPT to "protect" against In the bankruptcy controversial vehicles child support orders and alimony. proceeding, Mr. allow a person to set Mortensen argued up an irrevocable trust, fund it, name that the trust assets himself or herself as a beneficiary, and were sheltered in the DAPT and thus shield the trust assets from his or her beyond the reach of his creditors. He also creditors. argued that the Alaska four year limitations period had to apply, not the For decades, these types of trusts have ten year federal bankruptcy statute of been set up as offshore trusts in a foreign limitations. jurisdiction. More recently certain U.S. states, including New Hampshire, began The U.S. Bankruptcy Court held that Mr. authorizing them. Mortensen's transfer to the trust was evidence of an intent to fraud. It also held Most states allow a creditor to reach trust that the ten year federal bankruptcy assets of a DAPT to the same extent that period of limitations applied. As such, the the settlor can enjoy them. Thus, for

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creditors could reach the assets of the claims or alimony. It stands to reason that DAPT. people setting up DAPTs in New Hampshire are using them for more As seen in Mortensen, courts are hostile legitimate reasons, such as a physician toward DAPTs. Of course that may be at protecting a portion of his or her assets least in part due to the bad fact patterns to augment insurance coverage, or a and deceptive acts of the defendants person contemplating marriage using a often found in DAPT cases. DAPT in lieu of a prenuptial agreement. Certain states, including Nevada, South A Comparison to Delaware Dakota, and Alaska, have very aggressive DAPT statutes. Their statutes could allow Although Delaware is often credited with a person to establish a DAPT to "protect" having a long history of caselaw himself against child support orders and supportive of trusts, it is clear that the alimony. aura of Delaware's corporate caselaw has extended its glow to include trusts. It may not be surprising that court cases involving DAPTs in states with such For many decades, Delaware has been aggressive statutes involve defendants the state in which most businesses have who are not exactly model citizens. It calls incorporated. As of this writing, there are to mind the old adage "be careful of over a million corporations set up in what you wish for." These characters Delaware.25 In 2011 the state collected come before the court with their schemes roughly $860 million in taxes and fees laid bare and the judge (who is likely from its absentee corporate residents.26 elected) bends over backwards to pierce That money accounted for a quarter of the trust. the state's total budget.27 Clearly, corporations are critical to Delaware's That, in turn, may lead to "bad" caselaw economy. That reality is reflected in its in that state, meaning that other people judiciary. who may be looking to establish DAPTs for more acceptable reasons are hesitant Disputes involving trusts are heard at the to take advantage of something the Court of Chancery. According to a 2012 legislature specifically authorized. report issued by the Delaware State Bar Association's Committee on judicial Not surprisingly, allowing for Compensation, the Court of Chancery "protection" from child support orders is has "the responsibility to issue more held out as a positive factor by opinions than the state and federal proponents of states that have enacted appellate courts."28 The report also states these hyper-aggressive DAPT statutes. that the Court of Chancery "over the last Ironically, the caselaw developing in two centuries has been the forum for the connection with those statutes may major corporate decisions affecting the create a disincentive to set up DAPTs in economic health of business entities."29 those states. The report makes no mention of trusts. Happily, New Hampshire has no such By way of background, Delaware Court of caselaw, perhaps because its DAPT Chancery judges (called "Chancellors") statute does not allow a person to are appointed by the governor and receive protection from child support

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confirmed by the state senate. They serve Delaware “exclusive jurisdiction” over 12 year terms, at which point they must trusts that qualify as Delaware trusts. be re-appointed. Article IV, Section 3 of the Delaware constitution states that no In a 51-page opinion the court held that more than a "bare majority" of judges on the "exclusive jurisdiction" language in a given court may be of the same the statute meant that the Court of political party. Thus, if there are three Chancery has jurisdiction over other Republicans and a Democrat retires, the Delaware courts, not over other states' Delaware constitution mandates that a courts. Thus if a case were filed in a Democrat replace the retiring Chancellor, different Delaware court, it would have to regardless of which candidate has the be moved to the Court of Chancery, but best qualifications. the statute does not prevent another state's court from hearing a dispute A review of the biographies of the current about the Delaware trust. Chancellors reveals that most come from 33 backgrounds involving exclusively Another recent Delaware case is Peierls. corporate law and none list any Delaware proponents have held out this experience in trust case as a major law.30 This fact, along A review of the biographies of the victory for trusts and with their very current Chancellors reveals that most proof of the Delaware challenging come from backgrounds involving Supreme Court's workloads involving a exclusively corporate law and none list preeminence. Less wide range of subject any experience in trust law. publicized is the fact matters, may be that the state's reasons behind a few Supreme Court had recent holdings that are not consistent to overturn the Court of Chancery in with the state's marketed reputation as delivering this result. 31 the place where trusts reign supreme. The case involved a trust with language For example, in the Kloiber case, the stating the trust was to be governed by Delaware Court of Chancery held that New York law. A Delaware trustee was to Kentucky had jurisdiction over a Delaware be appointed and the petitioners argued dynasty trust in connection with a divorce that Delaware law must therefore govern case.32 This was likely a big surprise to matters of trust administration, but those who market Delaware trusts and otherwise New York law would continue tell clients that only Delaware courts can to govern the trust. settle matters involving a Delaware trust. At the trial level, the Court of Chancery The case involved a husband who was held that New York law must govern all trying to remove the trust from his aspects of the trust, including trust divorce proceeding in Kentucky. He administration. On appeal, the Delaware petitioned the Delaware court and Supreme Court reversed that holding, claimed that only a Delaware court could finding that unless the choice of law decide the fate of a Delaware trust. His language provides that the trust must reasoning was that the Delaware always be governed by a particular state's Qualified Dispositions Act grants law, trust administration matters will be governed by the law of the state in which

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trust administration actually takes place, Conclusion i.e., where the trustee is located. For anyone considering different This issue is important because “trust jurisdictions in which to site a trust, New administration” includes many tools that Hampshire offers the following: can change the substance of a trust, such as decanting and nonjudicial settlement • No tax of any kind imposed on agreements, which are only authorized in trusts; a small number of states. Thus, by • A full menu of state-of-the-art appointing a Delaware trustee, one could trust law features, including ostensibly decant the assets of a New decanting, perpetual trusts, non- York trust using the Delaware decanting judicial settlements, quiet trusts, rules, even if that results in changes to and directed trusts; the trust that would be prohibited under New York law.34 • A long history of a non-activist judiciary respectful of the While the Delaware Supreme Court's separation of powers and staffed reversal of the Court of Chancery's with judges who are not elected decision in Peierls is held out as good and therefore less inclined to news by Delaware proponents, it is also a bend to political or public reminder that trust cases there may face pressure than their counterparts in difficult and expensive challenges most other states; because they will always be heard in the first instance by the Court of Chancery, a • A “trust docket” court exclusively court with broad corporate law expertise devoted to trust litigation and but comparatively little trust experience. staffed by experienced, competent personnel; Contrast that with New Hampshire, where disputes involving trusts will be heard by • A legislature proven over time to a court dedicated solely to trust litigation be cooperative regardless of and led by a judge with 25 years of politics and party control; relevant experience. Also worth noting is that the rule established in Peierls is now • A reserved, deliberative culture Delaware common law, which can easily that is respectful of privacy; and be overturned by a subsequent case, • Across all levels of government whereas that same rule is a matter of and in the private sector, a clear statutory law in New Hampshire and singular focus on maintaining the can only be changed by legislative state's status as a premier trust action. jurisdiction.

Such an offering should give any advisor confidence in New Hampshire when advising clients where to site their trusts.

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Contact Us Hemenway Trust Company has deep roots in New England. We were founded by Hemenway & Barnes LLP, a law firm based in Boston, which has been serving wealthy individuals and families, closely-held businesses and nonprofit foundations and organizations for more than 150 years.

Hemenway Trust Company was established to serve our clients as a corporate trustee and offer the advantages of New Hampshire's favorable trust laws. As a private trust company, and in conjunction with Hemenway & Barnes LLP, we provide a full range of wealth advisory and management services to families and individuals of means. For more information on our services, please call us at (603) 913-0822.

Copyright © 2018 Hemenway Trust Company LLC

This advisory is provided solely for information purposes and should not be construed as professional advice with respect to any particular situation.

1 Other premier states are typically listed as Alaska, Delaware, Nevada, Tennessee, and South Dakota. 2 Chris Edwards, "State Bureaucracy Update," Tax & Budget Bulletin, No. 29, Cato Institute (January 2006). 3 Sunlight Foundation and Open States, Open Legislative Data Report Card (2013, updated 2015), available at https://openstates.org/reportcard/. 4 These features include, among others, perpetual (non-charitable) trusts, decanting, self-settled spendthrift trusts, division of trustee functions among different fiduciaries (e.g., trust protectors) with segregated liability protection, and dramatic expansion of acts available without court supervision. 5 Some may argue that self-settled spendthrift trusts have plenty of case law, but the cases to date have involved fraudulent behavior not protected by the statutes. People still await a case that does not involve such "bad facts." 6 See Delaware State Courts, The Official Web Site of the Delaware Judiciary, available at: https://courts.delaware.gov/chancery/index.aspx. 7 Bodeau v. Bodeau, 92 N.H. 183, 184 (1942). 8 Concrete Company v. Rheaume Builders, 101 N.H. 59, 61, 132 A.2d 133, 135 (1957). 9 In re Petition of State of N.H., 872 A.2d 295, 297 (N.H. 1992). 10 Hughes v. Speaker of the House of Representatives, 876 A.2d 736 (N. H. 2005). 11 Id. 12 Scheffel v. Krueger, 146 N.H. 669, 782 A.2d 410 (2001). 13 Id. 14 See, e.g., "To Elect or Appoint? Bias, Information and Responsiveness of Bureaucrats and Politicians," Journal of Public Economics, Volume 97 (January 2013): pp.230-244. 15 See, e.g., Charles E. Rounds, Jr. and Charles E. Rounds, III, Loring and Rounds, 2014: A Trustee's Handbook (2014): pp. 349-50. See also Dobris, Sterk and Leslie, Wills, Trusts and Estates 3d ed., p. 83 (2008). 16 See https://ballotpedia.org/Judicial_selection_in_the_states 17 Erwin Hanke, Sr. v. Erwin Hanke, Jr., et al., 123 N.H. 175, 459 A.2 246 (1983) (emphasis added).

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18 Robbins v. Johnson, 147 N.H. 44, 780 A.2d 1282 (2001). 19 Id. 20 In the Matter of Theodore J. Goodlander and Elizabeth M. Tamposi, 161 N.H. 490, 20 A.3d 199 (2011). 21 Robbins v. Johnson, 147 N.H. 44, 780 A.2d 1282 (2001). 22 Bartlett v. Dumaine et al., 128 N.H. 497, 523 A.2d 1 (1986). 23 See Case No. 2011-0146, Members of The Meadow at Moody Point Homeowner's Association, Inc. v. Walter W. Cheney, (2012 slip opinion) ("Absent ambiguity ... the parties' intent will be determined from the plain meaning of the language used in the contract"); N.H. Municipal Trust Workers' Compensation Fund v. Flynn, 133 N.H. 17 (1990) ("we will not redraft the [state] constitution in an attempt to make it conform to an intention not fairly expressed in it"); Verizon New England, Inc. v. City of Rochester, 156 N.H. 624 (2007) (stating that "the city ignores the plain language of [the statute]" and holding that the city's imposition of property tax was a violation of the State Constitution's Equal Protection Clause); Carleton v. Edgewood Heights Condo. Owners' Assoc., 156 N.H. 407, 408 (2007) (employing plain read of condominium association bylaws); Sherman v. Graciano, 152 N.H. 119 (2005) ("(a]bsent fraud, duress, mutual mistake, or ambiguity, we must restrict our search for the parties' intent to the words of the contract"). See also Axenics, Inc. v. Turner Construction Company 164 N.H. 659 (2013) (holding that subcontractor could not recover under an unjust enrichment theory from either the general contractor or property owner because a valid contract governed the subject matter of the claim, and internal memoranda, work product, or other materials created for the purpose of settlement cannot be used at trial as evidence of liability or damages); Clapp v. Goffstown Sch. Dist., 159 N.H. 206 (2009) (contract); Beckstead v. Nadeau, 155 N.H. 615 (2007) (contract); Appeal of Town of Durham, 149 N.H. 486, 487 (2003) (contract). 24 Battley v. Mortensen, Adv. D. Alaska, No. A09-90036-DMD (2011). 25 See Delaware Division of Corporations website, available at: http://corp.delaware.gov/. 26 Leslie Wayne, "How Delaware Thrives as a Corporate Tax Haven," New York Times (June 30, 2012). 27 Id. 28 Delaware State Bar Association Committee on Judicial Compensation, Report to the Delaware Compensation Commission, December 11, 2012, available at: http://www.delawarepersonnel.com/class/docs/comp/2013_de_bar_assoc_report.pdf. 29 Id. 30 Id. 31 Some proponents of Delaware argue that TrustCo Bank v. Matthews, C.A. No. 8374-VCP, V.C. Parsons (2015), is a “successful” case that upholds Delaware DAPTs, however a closer read of the holding reveals that the court specifically declined to address whether Delaware’s DAPT statute applied because the claim was time-barred under the statute of limitations, thus the transfer of assets to the DAPT, even if assumed to be fraudulent, could not be challenged. 32 IMO Daniel Kloiber Dynasty Trust UIA/D December 20, 2002, Court of Chancery, State of Delaware C.A. Number 9685-VCL (2014). 33 In the Matter of the Peierls Family Inter Vivos Trusts, Case No. 13, 2013C (Del. 2013). 34 Id.

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