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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Brentwood Probate Division

Case No. 2023-0389

Citation: In re Estate of Colanton, 2024 N.H. 43 

IN RE ESTATE OF BARBARA E. COLANTON

GAIL ANDERSEN

v.

BRENDA GRANT

Argued: April 23, 2024 

Opinion Issued: August 14, 2024

Devine, Millimet & Branch, PA, of Manchester (David P. Eby, Marrielle 

Van Rossum, and Richard P. Driscoll on the brief, and Richard P. Driscoll

orally), for the petitioner.

McLane Middleton Professional Association, of Woburn, Massachusetts

(Adam M. Hamel on the brief and orally), for the respondent.

COUNTWAY, J. 

[¶1] The petitioner, Gail Andersen, appeals a decision of the Circuit Court 

(Weaver, J.) rejecting her challenges to a will and trust executed by her mother,
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Barbara Colanton. The respondent, Brenda Grant, is also a daughter of

Colanton and is the executrix of Colanton’s will. We affirm.

[¶2] The trial court found the following facts. Andersen and Grant are 

the only children of Colanton and her husband, Frank Colanton. The 

Colantons owned and operated two golf courses, one of which they eventually 

sold, at which both Andersen and Grant worked during the 1990s. Following 

their father’s death in 2000, Andersen and Grant had a falling out. 

[¶3] Colanton first established an estate plan with her husband in the 

1990s and created the Barbara E. Colanton Trust (Trust) in 1994. In 1999, 

she created the Colanton Real Estate Trust (Real Estate Trust), which held the 

property on which the golf course was located. After her husband’s death, 

Colanton revised her estate plan, including executing a new will and a 

restatement to the Trust in 2001. In general, those documents provided for 

Andersen and Grant equally and also made provision for Colanton’s 

grandchildren — Andersen’s three children and Grant’s only child — in equal 

shares. Another amendment to the trust in 2002 altered the disposition as 

between Colanton’s children and grandchildren, but still generally treated the 

members of each class equally.

[¶4] In 2015, Colanton, then 83 years old, revised her estate plan again. 

At issue here are the following changes recited by the trial court:

[Colanton] signed a new will on September 11, 2015. The Will 

devises her entire estate to the Trust, and if the Trust no longer 

exists, then to Brenda Grant. It specifically omits Gail Andersen. 

At the same time, she signed an amendment to the Trust providing 

that Brenda would receive 90% of the assets in the Trust, and Gail 

would receive only 10%. The grandchildren were not provided for 

in the new estate plan. The Real Estate Trust was not modified.

[¶5] Colanton passed away in 2021 at the age of 88. Grant filed the will 

and petition for estate administration with the court. Andersen filed a motion 

in the probate case to re-examine the probate of the will. She also filed a 

petition in equity challenging the 2015 Trust amendment and seeking an 

accounting for the Trust. In both pleadings, Andersen alleged that at the time 

the 2015 will and Trust amendment were executed, Colanton was suffering 

from significant cognitive impairments and Grant exercised undue influence 

over her. The cases were consolidated and tried together.

[¶6] Following a six-day hearing, the trial court issued a final order. It 

found that “Colanton had the legal capacity to execute the Will and the 

remainder of her estate planning documents.” It further found that Grant was 

in a fiduciary or confidential relationship with Colanton and, “as a result,

. . . ha[d] the burden to show a lack of undue influence on her.” In determining 
3

the quantum of proof necessary to meet Grant’s burden, the court noted that 

New Hampshire law was “not clear.” It ultimately concluded that the 

preponderance of the evidence standard, rather than the clear and convincing 

evidence standard, should be applied. The court observed that the burden of 

proof as to testamentary capacity, once the presumption of capacity is 

rebutted, is preponderance of the evidence. It then reasoned that “[a]lthough 

the law regarding the determination of capacity is slightly different from that of 

undue influence, . . . the two are similar enough to support the use of the 

preponderance of the evidence standard” in this case.1 Applying that

standard, the court found that Grant met her burden to show that she did not 

exercise undue influence on Colanton in order to obtain her increased share of 

Colanton’s estate. Nevertheless, recognizing that the case might be appealed 

and seeking to avoid “a second trial . . . should the Supreme Court determine 

that [the court] should have applied the clear and convincing [evidence] 

standard,” it further found that Grant “did not meet her burden of proof by 

clear and convincing evidence.”

[¶7] The sole question before us is whether the trial court erred in 

applying the preponderance of the evidence standard, instead of the clear and 

convincing evidence standard, in determining that Grant did not exercise 

undue influence over Colanton. Accordingly, our review is de novo. See, e.g., 

American Pepper Supply Co. v. Fed. Ins. Co., 93 P.3d 507, 509, 511 (Ariz. 

2004) (stating “[t]he appropriate burden of proof is a question of law, which this 

court reviews de novo” and concluding that trial court erred by instructing jury 

that defendant had to prove its defense by clear and convincing evidence rather 

than by a preponderance of the evidence); cf. Attorney General, Dir. of 

Charitable Trusts v. Loreto Publ’ns, 169 N.H. 68, 76 (2016) (“We review the 

allocation of the burden of proof, a question of law, de novo.” (quotation 

omitted)).

[¶8] Andersen argues that “the trial court erred in failing to require 

[Grant] to rebut the presumption of undue influence by clear and convincing 

evidence.” Grant counters that, under New Hampshire law, “the existence of a 

fiduciary or confidential relationship merely gives rise to an inference and not a 

presumption, of undue influence.” Grant correctly states our law: “Inferences 

of fact may be drawn against a confidential agent” who procures the 

preparation of a will under which he substantially benefits, “but there is no 

presumption of law against the agent.” Patten v. Cilley, 67 N.H. 520, 521 

(preface to opinion), 528-29 (1893). 

1 Although Andersen argues that the trial court erred in finding the doctrines of undue influence 

and testamentary capacity sufficiently similar to apply the same quantum of proof to both, neither 

she nor Grant challenges the court’s reliance on our law of wills to determine the quantum of 

proof applicable to the Trust as well as the will. Indeed, as both parties rely on our law of wills 

with regard to both instruments, we do the same. 
4

[¶9] Initially, “the law presumes the absence of undue influence upon 

proof of the voluntary, formal execution of the will by a competent testator.” 

Albee v. Osgood, 79 N.H. 89, 91 (1918). We explained the operation of the 

factual presumptions in favor of a will’s proponent, and the applicable burdens 

of production and persuasion, in Gaffney v. Coffey, 81 N.H. 300 (1924):

The proponent of the will had the burden of proving its due 

execution, voluntarily, by a competent testator. Upon proof of the 

voluntary formal execution of the will by a competent testator, in 

the absence of circumstances arousing suspicion, the proponent of 

a will is not required to offer express affirmative proof of the 

absence of undue influence. The presumption of fact, which 

excuses such offer of proof, however, neither extinguishes the 

original issue nor shifts the burden of proof to the contestant. It 

simply suspends the requirement of further proof of the voluntary 

character of the testator’s act until it is called in question, if at all, 

by the submission of substantial evidence of undue influence by 

the contestant. When, as in this case, the appellant has supported 

her contention by the submission of such substantial evidence as 

will support a finding of undue influence, the presumption of fact 

created by the formal proof of the will has performed its office and 

is no longer of controlling force or of probative value. Under these 

circumstances, if the jury should find upon a consideration of the 

conflicting testimony upon this issue that a condition of even 

balance of the evidence has been reached, the proponent of the will 

has failed to maintain the ultimate burden of proof which is his 

from the beginning to the end of the trial. In other words, he has 

failed to establish that the will is the free and voluntary act of the 

testatrix. 

Gaffney, 81 N.H. at 306-07 (citation omitted); see also Ross v. Carlino, 119 

N.H. 126, 130 (1979) (noting that a will’s proponent “has the ultimate burden 

of proof as to every fact which is necessary to the validity of a will” and “retains 

the burden of persuasion throughout the probate proceeding”; nevertheless,

once the proponent establishes his prima facie case, the contestant “suffers a 

shift in the burden of moving forward with evidence showing a failure of due 

execution”). 

[¶10] As the foregoing demonstrates, submission of “substantial 

evidence” of undue influence by the will’s contestant merely puts the will’s 

proponent to her burden of proving the “voluntary character of the testator’s 

act,” which burden had previously been suspended by the “presumption of fact 

created by the formal proof of the will.” Gaffney, 81 N.H. at 306-07. Thus, 

submission of “substantial evidence” of undue influence has the same effect —

that is, putting the will’s proponent to her burden of proof — as submission of 

sufficient evidence that the testator lacked testamentary capacity. See In re 
5

Estate of Washburn, 141 N.H. 658, 662–63 (1997) (noting “the burden of 

proving testamentary capacity in will contests remains on the proponent of the 

will throughout the proceeding,” but because of the “presumption of capacity,” 

the “proponent need not introduce any evidence upon the issue of the 

testatrix’s capacity until a will contestant first rebuts the presumption by 

offering evidence of incapacity”). Accordingly, the trial court was correct to 

equate the proponent’s burden of proof as to testamentary capacity after a 

contestant has rebutted the presumption of capacity with the proponent’s 

burden of proof as to the absence of undue influence after a contestant has 

rebutted the presumption of voluntary execution. See Gaffney, 81 N.H. at 306 

(noting that a will’s proponent has the burden of proving the will was duly

executed both “voluntarily” and “by a competent testator”). 

[¶11] Andersen nevertheless argues that “[t]he policies underlying the 

doctrine of undue influence are not sufficiently similar to the rationale 

underlying the need for legal capacity.” (Italics omitted.) We are not 

persuaded. We have defined undue influence in the context of a challenge to a 

will as the “use of such appliances and influences as take away the free will of 

the testator, and substitute another’s will for his, so that in fact the instrument 

is not the expression of the wishes of the testator in the disposition of the 

property, but of the wishes of another.” Albee, 79 N.H. at 92 (quotation 

omitted). Similarly, one of the principles underlying the requirement of 

testamentary capacity is “that a will should be given effect only if it represents 

the testator’s true desires.” Jesse Dukeminier & Stanley M. Johanson, Wills, 

Trusts and Estates 147 (5th ed. 1995). Indeed, the standard for testamentary 

capacity under New Hampshire law reflects that this requirement is aimed at 

ensuring that the will represents the testator’s true wishes: 

In order to have sufficient mental capacity to make the will, the 

testatrix, at the time of making it, must have been able to 

understand the nature of the act she was doing, to recollect the 

property she wished to dispose of and understand its general 

nature, to bear in mind those who were then her nearest relatives 

as such, and to make an election upon whom and how she would 

bestow the property by her will; that she must have had the ability, 

the mental power or capacity to do this; that if she had, the law 

regarded her as of sufficient mental capacity to make the will . . . .

In re Estate of Washburn, 141 N.H. at 661 (quotation and brackets omitted). 

Accordingly, while the policies underlying the doctrine of undue influence and 

the requirement of testamentary capacity are not coextensive, we conclude the 

trial court did not err in finding them “similar enough” that the same quantum 

of proof should apply.

[¶12] With respect to testamentary capacity, we have held that “once the 

presumption [of capacity] is rebutted, the proponent merely retains the initial 
6

burden of proving due execution. The proponent must persuade the trial 

court, by a preponderance of all the evidence presented, that the testatrix 

possessed the requisite capacity to make the will.” Id. at 663. Similarly, once 

the initial presumption of voluntary execution is rebutted by substantial 

evidence of undue influence, the will’s proponent, retaining the initial burden 

of due execution, must persuade the trial court, by a preponderance of the 

evidence, that the will was executed voluntarily. See id.; Gaffney, 81 N.H. at 

306.

[¶13] No different procedure applies when the “substantial evidence” of 

undue influence comprises an inference drawn from evidence that the 

beneficiary was in a confidential or fiduciary relationship with the testator. 

The fact that an inference unfavorable to the validity of a will, 

which may be drawn when it appears that a person who was 

dependent upon or subject to the control of another makes a will 

in that other’s favor, may be rebutted by showing that the 

transaction was fair and honest, does not change the question of 

whether or not it has been rebutted from one of fact to one of law.

Edgerly v. Edgerly, 73 N.H. 407, 408 (1905) (citations omitted); see also Archer 

v. Dow, 126 N.H. 24, 28 (1985) (holding that the beneficiary of a transfer by 

deed who holds a position of trust and confidence with the transferor has the 

burden of proving an absence of undue influence). Accordingly, to the extent 

Andersen contends that the procedure described in Gaffney does not apply 

when the will’s proponent is a beneficiary who had a confidential or fiduciary 

relationship with the testator, we reject that argument.

[¶14] Andersen further argues that “[i]n light of the concerns underlying 

th[e] presumption [of undue influence arising when a beneficiary is in a 

confidential relationship with the testator], it is reasonable to require strong 

evidence to destroy it.” She contends that “[t]his court can best advance the 

common-law goal of protecting vulnerable donors and testators by requiring 

those with whom they had a confidential relationship to prove by clear and 

convincing evidence that their wills and trusts were made without undue 

influence.” 

[¶15] We are not persuaded. Although protecting vulnerable donors and 

testators from those who would exercise undue influence over them is a 

legitimate goal, imposing a high burden of proof on the proponent of a will or 

trust creates a significant risk that a decedent’s true intention will be defeated. 

We agree with Grant that the preponderance of the evidence standard strikes 

the best balance between respecting the decedent’s wishes as stated in the 

instrument while protecting against potential overreaching by those closest to 

the decedent. Adequate protection for vulnerable testators is embedded in the 

mechanism described above in which the initial presumption of voluntary 
7

execution ceases to function and the will’s proponent is put to her proof; a 

heightened quantum of proof is not required for that purpose and risks 

defeating the testator’s true intent. 

[¶16] Finally, Andersen cites case law from other jurisdictions, observing 

that there is a split among states regarding the quantum of proof needed to 

rebut the presumption of undue influence. To the extent she suggests we 

should follow those jurisdictions that require proof by clear and convincing 

evidence, we decline. For the reasons stated herein, we conclude that the trial 

court did not err in applying the preponderance of the evidence standard. 

Given the policy considerations at issue, however, we note that if the legislature 

disagrees with our decision, it can establish a different burden of proof by 

legislative enactment. See State v. Carter, 167 N.H. 161, 170 (2014) (noting 

that “the legislature possesses the power to enact laws that override this 

court’s common law and statutory construction precedents”).

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred; 

HANTZ MARCONI, J., sat for oral argument but did not participate in the final 

vote.