1565345.1 1

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

 

 : 

Jefferson P. VanderWolk, Executor of the 

Estate of Walter W. VanderWolk, Jr. 

:

:

 : 

 Plaintiff, : 

 : 

v. : Civil Action No. 1:08-cv-00450-SM 

 : 

Christopher Swenson, : 

 : 

 Defendant. : 

 : 

DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTION FOR 

SUMMARY JUDGMENT

Defendant Christopher Swenson, by his attorneys, Preti, Flaherty, Beliveau & Pachios, 

PLLP, respectfully submits the within Objection to Plaintiff's Motion for Summary Judgment, and 

in support thereof, represents as follows: 

1. The Plaintiff has moved for summary judgment on its claim and all of Defendant's 

Counterclaims. The Motion should be denied as the Plaintiff has not shown that the material 

facts are not in dispute and has not shown an entitlement to judgment as a matter of law. 

2. The tax obligation asserted by the Plaintiff arises because Walter VanderWolk 

elected to treat as non-taxable the bequest of a certain parcel of real estate, the so-called Bald 

Peak property, when serving as the Executor of the Estate of Sabra VanderWolk, his late wife 

and Defendant's late mother. One effect of this election was to increase the residue of Sabra's 

Estate passing to Walter's children. Walter VanderWolk disregarded Sabra's intent, he 

substituted his own plan, he acted in his interests and the interests of his children, to the 

detriment of Chris Swenson, and he otherwise breached his fiduciary duties. Another effect was 

to defer the tax to the time of Walter's death, at which time it was owed by Defendant. 

Case 1:08-cv-00450-SM Document 20 Filed 10/19/2009 Page 1 of 3
1565345.1 2

3. Sabra VanderWolk owned the Bald Peak property, and in her will she gave 

Walter a life estate with the remainder to Christopher at Walter's death. Walter's election was to 

defer the tax on the Bald Peak property until his death. Rather than pay the tax on the Bald Peak 

property out of the proceeds of Sabra's Estate, which would have diminished the Trust set up for 

the benefit of Walter and his children, Walter took action to require Chris to pay the tax. 

4. It was Sabra's intent that Chris not pay any tax on the devise of the Bald Peak 

property and that any taxes be paid out of the residue of her Estate. On at least two occasions, 

Walter told Chris there would be no tax liability on him, which was completely untrue. Walter 

fraudulently, or at least negligently, misrepresented the facts to Christopher and failed to correct 

his misstatement. Walter's actions constitute a breach of his fiduciary duties to Chris as a 

beneficiary. Walter's Estate was unjustly enriched by Walter's actions, as Walter utilized funds 

directly received from Christopher's grandmother that were earmarked to pay the Bald Peak 

taxes, and used those funds to fund a trust for the benefit of Walter and his children from a prior 

marriage. In the end the Estate should be estopped from seeking to recover the tax from Chris 

because of Walter's breaches. 

5. The material facts are disputed and Plaintiff has failed to show he is entitled to 

judgment as a matter of law. 

6. A Memorandum of Law in support of Defendant's Objection is attached hereto. 

WHEREFORE, for the reasons set forth above, Christopher Swenson respectfully 

requests this Honorable Court: 

A. Hold a hearing on Plaintiff's Motion for Summary Judgment; 

B. Deny Plaintiff's Motion for Summary Judgment; and 

C. Grant such other relief as may be just and proper. 

Case 1:08-cv-00450-SM Document 20 Filed 10/19/2009 Page 2 of 3
1565345.1 3

 Respectfully submitted, 

 CHRISTOPHER SWENSON 

 By his attorneys, 

PRETI, FLAHERTY, BELIVEAU & 

PACHIOS, PLLP 

Dated: October 19, 2009 By: /s/ Peter G. Callaghan

Peter G. Callaghan, NH Bar # 6811 

P.O. Box 1318 

Concord, NH 03302-1318 

(603) 410-1500 

pcallaghan@preti.com 

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of October 2009 I forwarded a copy of the foregoing 

Objection to Plaintiff's Motion for Summary Judgment to all counsel of record electronically via 

ECF. 

 /s/ Peter G. Callaghan

Peter G. Callaghan 

Case 1:08-cv-00450-SM Document 20 Filed 10/19/2009 Page 3 of 3