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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

7th Circuit Court-Dover Probate Division

No. 2018-0309

IN RE TRUST OF MARY BAKER EDDY

Argued: February 14, 2019

Opinion Issued: June 14, 2019

Pierce Atwood LLP, of Portsmouth (Michele E. Kenney on the brief), DLA 

Piper LLP, of Wilmington, Delaware (Stuart Brown on the brief and orally), and 

Foehl & Eyre, PC, of Glenside, Pennsylvania (Robert B. Eyre on the brief), for 

the Second Church of Christ, Scientist, Melbourne (Australia).

Upton & Hatfield, LLP, of Concord (Russell F. Hilliard, James F. 

Raymond, and Michael P. Courtney on the brief, and Mr. Hilliard orally), for the

Trustees of the Clause VI Trust and Clause VIII Trust.

Gordon J. MacDonald, attorney general (Thomas J. Donovan, director of 

charitable trusts, and Charles D. Shockley, assistant director of charitable 

trusts, on the brief, and Mr. Donovan orally), for the Attorney General, Director 

of Charitable Trusts.

DONOVAN, J. The Second Church of Christ, Scientist, Melbourne

(Australia) appeals an order of the Circuit Court (King, J.), denying it standing 
2

to request affirmative relief and enforce certain charitable trusts created by the 

will of Mary Baker Eddy. We affirm.

I. Factual and Procedural Background

The relevant facts follow. Mary Baker Eddy founded the Church of 

Christian Science and, upon her death in 1910, her will established two 

testamentary trusts, known as the Clause VI Trust and Clause VIII Trust. The 

Clause VI Trust bequeathed to the “Christian Science Board of Directors of The 

Mother Church” $100,000 in trust “for the purpose of providing free instruction 

for indigent, well educated, worthy Christian Scientists.” Clause VIII of Mrs. 

Eddy’s will devised “all the rest, residue and remainder of [her] estate . . . to 

The Mother Church ― The First Church of Christ, Scientist, in Boston,

Massachusetts, in trust,” for certain “general purposes.” She directed, inter

alia, that “such portion of the income of [her] residuary estate as may be 

necessary shall be used for the purpose of keeping in repair the church 

building” and her former home in Boston and that “the balance of said income, 

and such portion of the principal as may be deemed wise,” shall be used “for 

the purpose of more effectually promoting and extending the religion of 

Christian Science as taught by [Mrs. Eddy].”

In previous litigation concerning these trusts, we upheld the validity of 

the trusts and established that the bequest in Clause VIII was to be held in 

trust for two purposes, church building repair and “promoting and extending 

the religion of Christian Science as taught by [Mrs. Eddy].” Glover v. Baker, 76 

N.H. 393, 400-01 (1912); see also Fernald v. Church, 77 N.H. 108, 109 (1913). 

The Massachusetts Supreme Judicial Court reached a similar conclusion in 

Chase v. Dickey, 99 N.E. 410 (Mass. 1912), wherein the court held that the

construction of the Clause VIII Trust manifests a purpose to make the 

promotion and extension of the religion of Christian Science the “dominating 

and real residuary purpose” of Mrs. Eddy. Chase, 99 N.E. at 415. As a result 

of this litigation, court oversight of the trusts commenced, and annual 

accounts for both trusts, and requests for appointments of trustees, have been 

filed in the Concord Probate Court (now, Circuit Court) for over one hundred 

years.

The trustees of the Clause VIII Trust were comprised of the Board of 

Directors of the Mother Church and Josiah Fernald, the administrator of Mrs. 

Eddy’s estate, until Mr. Fernald’s death in 1949. At that time, Judge Lord of 

the probate court, in a letter to the trustees, concluded that it was “not 

necessary to fill the vacancy [of Mr. Fernald]” and that the “five members of the 

Christian Science Board of Directors who are the surviving trustees . . . shall 

constitute the sole trustees” of the Clause VIII Trust. Since the 1949 letter, the 

trustees of the Clause VIII Trust have all been members of the Mother Church 

Board of Directors.
3

In 1993, following an investigation by the New Hampshire Director of 

Charitable Trusts (DCT) into a five million dollar loan from the Clause VIII 

Trust to the Mother Church to be used to fund a failed television venture, the 

Probate Court (Cushing, J.) approved a stipulation between the DCT and the 

trustees of the Clause VIII Trust. The stipulation provided, inter alia, that: (1) 

the Mother Church agreed to repay the loan to the Clause VIII Trust; (2) the 

Clause VIII Trust income was to be used to repair the church, with any

available, remaining income to be applied to the promotion and extension of 

Christian Science, at the discretion of the trustees; (3) further loans from the 

trust were prohibited; and (4) the principal of the Clause VIII Trust could only 

be invaded with court approval.

The current litigation commenced in 2015, when Second Church, an 

alleged qualified beneficiary of the Clause VIII Trust, sought to review, and 

potentially object to, the annual accounting filed by the trustees. Although the 

DCT assented to Second Church’s motion, the trustees objected on the basis 

that Second Church, as a “branch church,” lacked standing to sue. Second 

Church responded by arguing that it had standing under the special interest 

doctrine. The court scheduled a hearing to address the issue of standing. 

However, the court did not rule on Second Church’s motion or the standing 

issue because the parties agreed at the hearing that Second Church would 

withdraw its motion and the DCT, Second Church, and the trustees would 

cooperate to resolve concerns raised by Second Church and the DCT.

Notably, prior to the court’s scheduling order, the DCT had not 

responded to the concerns voiced by Second Church. Thereafter, the DCT filed 

a memorandum in April 2016 asserting that Second Church did not have 

special interest standing, especially in light of the DCT’s “plan to review the 

Clause VIII Trust’s decision making concerning its distributions.” In his 

memorandum, the DCT recognized that prior litigation had arisen from the

“tension” between the two beneficial purposes of the Clause VIII Trust, namely: 

(1) repair of the Mother Church building(s); and (2) “promoting and extending 

the religion of Christian Science.” The DCT also acknowledged the tension 

between the 1912 decision in Chase, 99 N.E. at 415, that devoted the Clause 

VIII Trust distributions primarily to promoting and extending the religion of 

Christian Science, and the court’s approval of the 1993 stipulation prioritizing

distributions for church repairs. The DCT further opined that “[b]ecause the 

trustees of the Clause VIII Trust are also the Board of Directors of the Mother 

Church, they have embedded conflicting fiduciary obligations.” In light of these 

concerns, the DCT outlined a review plan that he intended to undertake with 

the trustees, which included a “review [of] the distributions made from the 

Clause VIII [Trust].” The DCT concluded that because his office had, and 

continued to take, an active role in monitoring the Clause VIII Trust, “special 

interest standing is not warranted.”
4

Thereafter, following the DCT’s objection to the trustees’ accounts filed in 

2016, the DCT and trustees reached an agreement and the trustees filed a 

motion, assented-to by the DCT, to, among other things, approve an amended 

account. Second Church moved for authorization to file an amicus curiae brief

voicing its continuing concerns. The trial court issued an order requiring the 

trustees to file accounts audited by an independent auditor. The court also 

denied Second Church’s motion, but indicated that Second Church should 

share information with the DCT who, by statute, represents their interests in 

this matter. See RSA 564-B:4-405(c) (2007).

Subsequently, the trustees submitted an assented-to motion to, inter

alia, amend the 1993 order. Second Church, again, sought to submit a brief as 

amicus curiae. The trustees objected. Second Church filed a responsive 

pleading as well as a status report and a request for time to conduct discovery, 

despite the fact that its standing to participate in this matter had not yet been 

determined. The court scheduled a hearing for November 2017. Prior to the 

hearing, the trustees filed a memorandum concerning the issue of standing. 

Second Church responded by moving for the appointment of an independent 

trustee and filing a memorandum on standing.

In March 2018, the trial court issued an order finding that Second 

Church failed to satisfy its burden to demonstrate that it had standing. We 

note that in making this determination, the trial court did not identify the 

standard by which it decided the standing issue ― i.e., whether the trial court 

considered the challenge to Second Church’s standing as a motion to dismiss.

In its order, the trial court acknowledged the general rule that when a 

trust is determined to be charitable, it becomes the duty of the attorney general 

to ensure that the rights of the public in the trust are protected and that the 

trust is properly executed. See Petition of Burnham, 74 N.H. 492, 494 (1908). 

The court further noted that New Hampshire law is unclear as to whether a 

possible beneficiary of a charitable trust, like Second Church here, has 

standing. Looking to other jurisdictions for guidance, the trial court 

determined that most jurisdictions have ruled that a possible beneficiary is 

generally not entitled to sue for enforcement of the trust. See Alco Gravure, 

Inc., v. Knapp Foundation, 479 N.E.2d 752, 755 (N.Y. 1985); see also State ex 

rel. Nixon v. Hutcherson, 96 S.W.3d 81, 83-84 (Mo. 2003). However, the trial

court also found that courts have recognized an exception to this rule “where 

an individual seeking enforcement of the trust has a ‘special interest’ in 

continued performance of the trust distinguishable from that of the public at 

large.” Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990).

After considering how other courts have applied the doctrine of special 

interest standing, the trial court applied a five-factor test, often referred to as 

the Blasko test. See Mary Grace Blasko, Curt S. Crossley, David Lloyd, 

Standing to Sue in the Charitable Sector, 28 U.S.F. L. Rev. 37, 61 (1993) 
5

(hereinafter, “Blasko”). The test is based upon a comprehensive survey of case 

law and it sets forth five factors to determine whether a plaintiff’s interest is 

distinct enough from the public at large to justify conferring standing upon the 

plaintiff in order to enforce a charitable trust. See generally id. The factors 

are: (1) the extraordinary nature of the acts complained of and the remedies 

sought; (2) the presence of bad faith; (3) the attorney general’s availability and 

effectiveness; (4) the nature of the benefitted class and its relationship to the 

charity; and (5) the social desirability of conferring standing. Id. at 61.

Applying the Blasko test, the trial court found that none of the factors 

weighed in favor of granting Second Church standing. Second Church filed a 

motion for reconsideration, which the trial court denied. This appeal followed.

II. Analysis of Second Church’s Claims

On appeal, Second Church argues that, even though the trial court

properly adopted the Blasko test, it misapplied the factors. Second Church 

asserts that, under the Blasko test, as one of a limited number of potential 

beneficiaries under the trusts, it has a “special interest” in the Clause VIII

Trust sufficient to justify standing. Moreover, Second Church contends that 

the trial court improperly reached its decision without the development of a 

factual record, while also faulting Second Church for not developing sufficient 

facts to demonstrate standing. Although the DCT agrees with Second Church 

that we should “recognize the standing of certain persons or entities that have 

a special interest in a particular charitable trust to enforce that trust,” both the 

DCT and the trustees maintain that the trial court properly determined that 

Second Church lacks special interest standing. We agree with the DCT and the 

trustees.

A. Standing Issue

We generally will not disturb the circuit court’s decree unless it is 

unsupported by the evidence or plainly erroneous as a matter of law. In re 

Estate of Locke, 148 N.H. 754, 755 (2002); see also RSA 567-A:4 (2007). In 

this case, the parties dispute the applicable standard of review. Second 

Church argues that we should review the trial court’s application of the special 

interest standing factors de novo. The DCT argues that the question of 

whether to adopt special interest standing is a question of law which we review 

de novo. However, the trustees and the DCT further argue that we should not 

disturb the trial court’s standing determination unless it is plainly erroneous 

as a matter of law.

Because the trial court did not clarify how it reviewed the pleadings in 

determining that Second Church lacked standing, and there was no discovery 

or evidentiary hearing, we assume without deciding that the trial court viewed 
6

the challenge to Second Church’s standing as a motion to dismiss.1 When a

motion to dismiss “challenges the plaintiff’s standing to sue, the trial court 

must look beyond the plaintiff’s unsubstantiated allegations and determine, 

based on the facts, whether the plaintiff has sufficiently demonstrated his right 

to claim relief.” Ossipee Auto Parts v. Ossipee Planning Board, 134 N.H. 401, 

403-04 (1991). Nonetheless, in this case, the material facts are not disputed; 

only their legal effect stands in dispute. See Appeal of N.H. Right to Life, 166 

N.H. 308, 311 (2014). The issue of standing is, therefore, a question of law, 

which we review de novo. Id.

The general rule is that potential trust beneficiaries, in suits involving 

charitable trusts, may not bring an action to enforce the terms of such a trust. 

See Restatement (Third) of Trusts § 94 cmt. g at 8-9 (2011). Instead, the 

attorney general (or the DCT, as his representative) has the statutory power 

and duty to represent the public in the enforcement and supervision of 

charitable trusts. See RSA 564-B:4-405(c); RSA 7:20 (2013); Attorney Gen. v. 

Rochester Trust Co., 115 N.H. 74, 76 (1975) (the attorney general has the duty 

to protect the rights of the public in charitable trusts); Concord Nat. Bank v. 

Haverhill, 101 N.H. 416, 419 (1958); Restatement (Third) of Trusts, supra at 4. 

As another court has framed the issue:

Principally, the rationale for vesting exclusive power in a public 

officer stems from the inherent impossibility of establishing a 

distinct justiciable interest on the part of a member of a large and 

constantly shifting benefited class, and the recurring burdens on 

the trust res and trustee of vexatious litigation that would result 

from recognition of a cause of action by any and all of a large 

number of individuals who might benefit incidentally from the 

trust.

Hooker, 579 A.2d at 612. Nonetheless, the Restatement as well as other 

jurisdictions have recognized an exception to this rule when a clearly identified

class “has a justiciable interest in enforcement of the trust.” Id.; see Alco 

 

1 We note that the plainly erroneous language derives from case law and RSA 567-A:4. RSA 567-

A:4 states, in relevant part: “The findings of fact of the judge of probate are final unless they are so 

plainly erroneous that such findings could not be reasonably made.” Our case law has somewhat 

altered this standard and provides that “[w]e will not disturb the probate court’s decree unless it is 

unsupported by the evidence or plainly erroneous as a matter of law.” In re Estate of Locke, 148 

N.H. at 755.

In this case, because there was no evidentiary hearing, the trial court did not necessarily 

find any facts and it would be inappropriate to defer to its factual findings or rulings of law. 

Nonetheless, the trustees and the DCT, at oral argument, advocated for a plainly erroneous 

standard because the trial court judge had presided over this case for several years and had the 

benefit of having the entire probate record before him when deciding the issue of standing. 

Although this is true, we have the majority of the record before us, and, because the material facts 

are not in dispute, de novo review is more appropriate.
7

Gravure, 479 N.E.2d at 755-56 (concluding that plaintiffs had standing where 

they were a well-defined class of potential beneficiaries challenging the 

dissolution of the charitable corporation); Restatement (Third) of Trusts, supra

§ 94 cmt. g at 8-9.

Although we have yet to determine whether a potential beneficiary of a 

charitable trust has standing, our law supports the concept of conferring

standing upon a third party if it establishes that it has a special interest. For 

instance, we have previously noted that “[w]hile the Attorney General . . .

represents the public in the enforcement and supervision of charitable trusts, 

this [representation] does not preclude other interested parties from presenting 

their views particularly where they are acting for the benefit of the charitable 

trust as a whole.” Concord Nat. Bank, 101 N.H. at 419. RSA 564-B:4-405(c) 

also implicitly allows special interest standing by providing that “[t]he settlor of 

a charitable trust or the director of charitable trusts, among others, may 

maintain a proceeding to enforce the trust.” RSA 564-B:4-405(c) (emphasis 

added). Moreover, the comments to the Uniform Trust Code, upon which the 

New Hampshire Trust Code is based, see RSA ch. 564-B (2007 & Supp. 2018), 

contemplate that certain others may have standing based upon their special 

interest in the charity. See Unif. Trust Code § 405, Comment (2006) (“The 

grant of standing to the settlor does not negate the right of the state attorney 

general or persons with special interests to enforce either the trust or their 

interests.” (emphasis added)); see also Unif. Trust Code, supra § 413, Comment

(“[A] petition requesting a court to enforce a charitable trust or to apply cy pres 

may be maintained by . . . the state attorney general, or by a person having a

special interest in the charitable disposition.”).

Accordingly, we recognize the doctrine of special interest standing in 

matters involving charitable trusts. We must next determine how to apply this 

doctrine. Second Church argues that the trial court correctly adopted the 

Blasko five-factor test. Second Church further argues that the presence of any 

one factor by itself is sufficient to conclude that it has a special interest. See

Blasko, supra at 61.

The trustees advocate for a more stringent test, which follows the test 

approved by the American Law Institute (ALI), that proposes five factors similar

to the Blasko factors but requires a private party to satisfy all of the factors to 

demonstrate special interest standing. See Restatement of the Law Charitable 

Nonprofit Organizations § 6.05 (Tent. Draft No. 2, 2017) (approved May 22, 

2017). The trial court considered this test but applied the Blasko test upon

determining that the flexibility of the Blasko test better suits the pursuit of a 

just outcome. The DCT argues that the trial court properly adopted and 

applied the Blasko test.

We look to other jurisdictions for guidance on the application of the 

special interest standing doctrine. See N.H. Right to Life v. Dir., N.H. 
8

Charitable Trusts Unit, 169 N.H. 95, 103 (2016) (looking to the decisions of 

other jurisdictions interpreting similar acts for guidance). The Arizona Court of 

Appeals adopted a modified version of the five-factor balancing test described 

by Blasko, giving special emphasis to the nature of the benefitted class and its 

relationship to the trust, the nature of the remedy requested, and the 

effectiveness of attorney general enforcement of the trust. Schalkenbach 

Foundation v. Lincoln, 91 P.3d 1019, 1026 (Ariz. Ct. App. 2004). In Alco 

Gravure, the New York Court of Appeals considered similar, albeit fewer,

factors to determine whether the plaintiffs had a “special interest” in charitable 

funds and could maintain a suit. Alco Gravure, 479 N.E.2d at 755-56. There, 

the court focused on the well-defined class of beneficiaries and the fact that 

they were challenging the dissolution of the charitable corporation, as opposed 

to the ongoing administration of the corporation, to conclude that the plaintiffs 

had standing. Id.

Similarly, in Hooker, the District of Columbia Court of Appeals

considered the nature of the class and the nature of the challenge to the 

trustees’ acts in deciding whether to apply the special interest exception. 

Hooker, 579 A.2d at 614, 616-17 (concluding that the class of elderly, indigent 

women, who are eligible potential residents of a Trust-operated home, had 

standing to challenge the trustees’ decision to put into effect a “major change 

from the manner in which the trust had been administered in the past”). The 

Supreme Court of Missouri likewise recognized that “[a] person . . . may have 

standing if he or she is entitled to a preference under the terms of the trust or 

if the person is a member of a small class of identifiable beneficiaries.” State ex 

rel. Nixon, 96 S.W.3d at 84. The court also acknowledged that a person may 

establish standing if he or she “is entitled to receive a benefit under the trust 

that is not merely the benefit to which members of the public in general are 

entitled.” Id. at 84-85 (quotation omitted) (concluding that the plaintiffs could 

not establish standing when they failed to meet the burden of “showing a clear, 

identifiable, and present claim to any benefits” from the trust).

After review of the factors that other jurisdictions consider relevant to a 

special interest standing determination, we agree with the trial court that the 

Blasko test is preferable because it provides a court with the flexibility to 

consider a variety of factors. Although Blasko suggests that “[t]he presence of 

any one . . . factor[] by itself can lead a court to decide that the plaintiff has a 

special interest in a charity,” the article notes that, “[i]f a combination of 

elements is present, then a court can balance them against one another and 

reach a decision.” Blasko, supra at 61. Depending upon the circumstances, 

some factors may carry more weight than others and, in New Hampshire, when

evaluating whether a party has standing to sue, we generally focus upon 

whether the party suffered a legal injury against which the law or policy was 

designed to protect. See Petition of Lath, 169 N.H. 616, 620 (2017). 

Accordingly, because of the various interests that must be considered to 

determine special interest standing in the context of charitable trust matters, 
9

we conclude that a balancing test of all five Blasko factors best comports with 

New Hampshire law. We thus address each factor in turn.

i. The Extraordinary Nature of the Acts Complained of and 

the Remedy Sought

As to the first factor, the trial court found that Second Church’s request 

for an independent trustee, among other remedies, seeks to undo prior court 

orders and suggests remedies despite Second Church’s “informative and 

thorough amicus submissions that the Court assumes the DCT has reviewed.” 

The trial court therefore determined that Second Church merely disagreed with 

the DCT’s judgment, and this disagreement is not sufficient to justify standing. 

Second Church argues that the trial court erred by: (1) focusing on the 

requested relief, rather than the extraordinary nature of the acts alleged by 

Second Church; and (2) failing to recognize that the bad acts committed by the 

trustees are extraordinary while the requested remedy is not.

Blasko recognized that “courts seem to be influenced from the outset by 

the nature and extent of the remedy requested.” Blasko, supra at 62. When a 

requested remedy could be “highly intrusive in the administration of the trust,” 

it is likely to weigh against a finding of standing. See Schalkenbach 

Foundation, 91 P.3d at 1027-28. When trustees seek to fundamentally change 

the charitable bequest by dissolving the nonprofit corporation or closing the

facility created by the trust, and the plaintiffs seek to stop this action, then the 

plaintiffs are more likely to establish standing. See Hooker, 579 A.2d at 616-

17; Alco Gravure, 479 N.E.2d at 755.

To begin, we need not decide whether the trial court should have 

considered the extraordinary nature of the bad acts, because, upon our de

novo review, we consider them now, and we conclude that Second Church has 

not demonstrated that the trial court’s failure to consider the extraordinary 

acts is sufficient, by itself, to constitute reversible error. See Gallo v. Traina, 

166 N.H. 737, 740 (2014). Accordingly, we examine the requested remedy in 

relation to the nature of the alleged bad acts.

Second Church alleges that the trustees engaged in self-dealing and have 

an embedded conflict due to their dual role as trustees and members of the 

board of directors of the Mother Church. Furthermore, Second Church alleges, 

among other things, that the trustees have improperly favored the Mother 

Church when distributing the Clause VIII trust assets. Second Church, 

therefore, seeks the “relief of having an independent trustee appointed to the 

Clause [VIII] [T]rust.”

We find Schalkenbach Foundation to be instructive under these 

circumstances. Schalkenbach Foundation, 91 P.3d at 1027. In Schalkenbach 

Foundation, the appellants alleged that the Foundation had been 
10

systematically diverting funds from their approved purpose to improper uses, 

which the court found implied a request to remedy the situation by the 

appellants’ participation in and influence of the daily operations of the 

Foundation. Id. at 1027-28. The appellants specifically requested, among 

other things, to “replace the Foundation’s officers and directors with persons 

interested in carrying out the terms of the charitable trust.” Id. at 1021. The 

court concluded that the remedies that the appellants wished to impose were 

“highly intrusive in the administration of the trust, which could open the 

Foundation to further litigation by other potential or disappointed 

beneficiaries.” Id. at 1028.

Similarly, here, because Second Church seeks the appointment of an 

independent trustee to oversee the administration of the trust, including the

distribution of funds, this request would influence the daily operations of the 

trust and the ongoing administration of the trust. Consequently, this remedy

could expose the charity to vexatious litigation by Second Church or other 

disappointed beneficiaries that would still be concerned with the distribution of 

funds even after the appointment of an independent trustee.

Moreover, Second Church’s requested remedy is unnecessary under the 

circumstances because the trial court has already taken steps to address the 

alleged bad acts. Notably, in its March 2018 order, the trial court 

acknowledged the embedded conflict and imposed certain conditions that 

addressed this conflict, including, inter alia, requiring the trustees to furnish to 

the DCT a schedule of recipients of the Clause VIII distributions. The March 

2018 order also partially amended the 1993 order “to the extent it gave priority 

to church repair.” Therefore, in relation to the nature of the trustees’ alleged

bad acts, the appointment of an independent trustee would be unnecessary 

under these circumstances. Accordingly, this factor weighs against standing.

ii. Presence of Bad Faith

As to the second factor, Second Church argues that the evidence that the 

trustees acted in bad faith is substantial. Blasko notes that the presence of 

fraud or other deliberate misconduct is not a factor which courts necessarily 

discuss when evaluating a plaintiff’s special interest, but it is nevertheless an 

element which influences their decisions. Blasko, supra at 64. “When alleging 

fraud . . . the plaintiff must specify the essential details of the fraud, and 

specifically allege the facts of the defendant’s fraudulent actions. It is not 

sufficient for the plaintiff merely to allege fraud in general terms.” Lamprey v. 

Britton Constr., 163 N.H. 252, 262-63 (2012) (quotation omitted) (standard for 

withstanding a motion to dismiss when alleging fraud).

Second Church specifically contends that the trustees acted in bad faith 

when they distributed the Clause VIII funds solely to the Mother Church. 

However, as the DCT counters, Second Church fails to consider the 1993 order 
11

which required the trustees to make distributions of the Clause VIII Trust’s 

income primarily to repair the mother church. Second Church also asserts 

that after being ordered by the trial court to submit independent audits on the 

accounts, the trustees submitted non-independently prepared unaudited 

financial statements and, given the existence of the embedded conflict, this 

conduct represented a clear example of bad faith. The trial court found that 

the accounts were accepted for several years by the then-DCT and were 

implicitly approved by the court. The trial court acknowledged that, by doing 

so, the trustees committed misconduct. However, the court further found that 

Second Church’s allegations were insufficient to demonstrate outright fraud or 

bad faith. We agree.

Second Church’s allegations do not demonstrate that this conduct 

amounts to bad faith or fraud that directly injures Second Church. See

Blasko, supra at 64-65. The assertion that the conduct represented bad faith 

merely because of an embedded conflicting fiduciary obligation is insufficient. 

See Lamprey, 163 N.H. at 256 (explaining that the threshold inquiry on a 

motion to dismiss involves testing the facts alleged against the applicable law, 

and that we need not accept allegations that are mere conclusions of law).

Second Church further relies upon Matter of Green Charitable Trust, 431 

N.W.2d 492 (Mich. Ct. App. 1988), to argue that the trustees’ mismanagement 

is sufficient to confer standing. In Green Charitable Trust, named beneficiaries 

of a charitable trust and the state attorney general brought petitions against 

the trustees alleging that the trustees mismanaged the sale of property owned 

by the charitable trust. Green Charitable Trust, 431 N.W.2d at 494-95, 505-

06. The court upheld the trial court’s finding that the trustees violated their 

fiduciary duty to the beneficiaries by mismanaging the sale of the property and 

having a conflict of interest in representing both the buyer and seller of the 

property. Id. at 497, 504.

Green Charitable Trust is inapposite to the circumstances here. First,

standing was not at issue in Green Charitable Trust. Second, here Second 

Church is a potential beneficiary, whereas, in Green Charitable Trust, the 

named charitable trust beneficiaries together with the attorney general

challenged the actions of the trustees. Id. at 494-95. Thus, the reasoning in 

Green Charitable Trust does not provide support for Second Church’s assertion

that the trustees’ alleged mismanagement demonstrates bad faith sufficient to 

weigh in favor of standing. Moreover, Second Church’s allegations of 

mismanagement ― that Mother Church received all distributions, the trustees 

failed to restore the priorities of the Clause VIII Trust after the 1993 order, and 

the trustees failed to have independent audits of the accounts ― are 

insufficient to demonstrate bad faith that weighs in favor of granting it

standing.
12

In sum, while Second Church’s allegations may demonstrate misconduct, 

they fail to demonstrate fraud or bad faith. Thus, we agree with the trial court

that this factor is neutral and neither weighs against nor in favor of conferring 

standing.

iii. Attorney General’s Availability and Effectiveness

Second Church next argues that the DCT has not been effective in 

policing the trustees’ misconduct. The trustees disagree and argue that the 

DCT has been available and effective in enforcing the trusts. The trustees 

further contend that this finding is the most important Blasko factor to 

consider when deciding whether to grant special interest standing.

As we previously discussed, the DCT is empowered to represent the 

public and potential beneficiaries of New Hampshire charitable trusts. See

RSA 564-B:4-405(c). When assessing this factor under the Blasko test, “the 

nature and level of the attorney general’s involvement can profoundly influence 

a court’s decision to grant or deny standing.” Blasko, supra at 67. “[W]here 

the attorney general is heavily involved in charities regulation, courts generally 

will take a dim view of private parties attempting to step into the attorney 

general’s role to seek enforcement of charitable fiduciary duties.” Id. at 70. 

Under this factor, we consider whether the attorney general is able to enforce 

the trust or whether the lack of enforcement is due to a conflict of interest, 

ineffectiveness, or lack of resources. Schalkenbach Foundation, 91 P.3d at 

1028 (attorney general’s decision not to enforce the trust was not influenced by 

lack of resources and there was no evidence of neglect of the public interest;

thus, this factor weighed against a finding of special interest standing).

Second Church alleges that the DCT allowed the trust to “fall into the 

exclusive control of the conflicted . . . trustees,” participated in the crafting of 

the 1993 order that “turned the Trust priorities upside down,” and sat idly by 

as the trustees diverted “some $26 million in funds to their preferred Mother 

Church.” We disagree with Second Church’s characterization of the DCT’s 

oversight. As the trial court noted, during the long history of the trusts, the 

DCT’s performance of his duties has been mixed and arguably deficient. 

However, the record also demonstrates that during the pendency of the present 

dispute, the DCT has been an active participant, has acknowledged the 

embedded conflict with the trustees, and suggested measures to mitigate the 

effect of that conflict. For instance, during a motions hearing, the trustees 

acknowledged that the DCT had certain objections to the accounts filed in 

2016 and that the two parties then proceeded to work together to resolve those 

concerns. In addition, in the DCT’s memorandum concerning the standing of 

Second Church, he recognized the “embedded conflicting fiduciary obligations,” 

while also asserting a plan to, inter alia, review the trustees’ process for making 

distributions and review the trustees’ resolution regarding the conflicting 

fiduciary obligations.
13

Nonetheless, Second Church maintains that the DCT is ineffective in 

addressing the embedded conflict with the trustees and, therefore, allowing 

Second Church to intervene as a party familiar with the trusts “is the best, and 

perhaps only, way to protect the Trust assets.” Second Church relies upon the 

reasoning in Holt v. College of Osteopathic Physicians and Surgeons, 394 P.2d 

932 (Cal. 1964), in which the court noted that “[t]he administration of 

charitable trusts stands only to benefit if in addition to the Attorney General 

other suitable means of enforcement are available.” Holt, 394 P.2d at 936. In 

Holt, minority trustees brought suit against the charitable corporation and the 

majority trustees alleging that the defendant trustees acted contrary to the 

charitable purposes of the college. Id. at 934. The attorney general filed an 

answer concluding that the suggested changes to the operation of the college 

would not be detrimental to the public interest and did not warrant legal action 

by its office to prevent such changes. Id. The attorney general also claimed 

not to have information that the trust assets were being diverted from their 

charitable purpose, which, as the court noted, illustrated the concern that the 

attorney general “may not be in a position to become aware of wrongful 

conduct or to be sufficiently familiar with the situation to appreciate its 

impact.” Id. at 935-36. The court held that the attorney general applied the 

wrong test in deciding not to take legal action because the assets of the college 

could only be used for the purposes for which they were received in trust, not 

in any manner that was not detrimental to the public interest. Id. at 936.

Second Church’s reliance on Holt is misplaced. First, the plaintiffs in 

Holt were minority trustees, whereas here, the appellant is a potential

beneficiary. See id. at 934. Second, the attorney general in Holt applied the 

wrong test when determining whether to take legal action, while here, the 

record demonstrates that the attorney general is actively involved in overseeing 

the administration of the trust. Second Church fails to demonstrate that it is

better suited or more qualified than the attorney general to ensure the proper 

enforcement of the trust. Despite Second Church’s assertion that it is

“extensively familiar” with the relationships among the Mother Church, the 

Christian Science Publishing Society, and the Clause VIII Trust, Second 

Church does not allege or explain, not only how it is familiar with the trust, but 

also how any “familiar[ity]” with the trusts places it in a better position than 

the DCT. Moreover, Second Church does not allege that it has access to 

documents and information that the DCT does not have. In fact, Second 

Church’s pleadings to the trial court indicate that it relied upon documents it 

received from the DCT as factual support for its allegations regarding the 

trustees’ actions and the trustees’ relationship with the DCT.

Second Church also alleges that “[g]iven the number of questionable acts 

taken by the . . . Trustees, it may be that there are simply too many aspects of 

the administration of the Clause [VIII] Trust for the DCT to effectively police.” 

To support this contention, Second Church asserts that it wrote a letter in 

January 2017 alerting the DCT of potential mismanagement of trust assets, 
14

and Second Church believes that the DCT has not acted on that information. 

However, as mentioned above, the DCT has been actively involved in this 

matter and has taken steps to address the embedded conflict. The trial court’s 

March 2018 order also ensures the continued involvement of the DCT by 

requiring the trustees to submit to the DCT “along with the annual audited 

accounts, a schedule of recipients of Clause VIII distributions and provide 

affidavit(s), under oath, that these distributees are in fact ‘third party 

recipients’ and not affiliated with the Mother Church.” The DCT’s reluctance to 

agree with Second Church to seek the appointment of an independent trustee 

is not sufficient to support Second Church’s allegation that the attorney 

general is not involved or is ineffective.

Thus, we agree with the trial court that this factor does not weigh in 

favor of granting standing to Second Church. In addition, we iterate the trial 

court’s encouragement of Second Church to continue to share information and 

its concerns with the DCT.

iv. Nature of the Benefitted Class and its Relationship to the 

Charity

Second Church argues that it is part of a defined class of entities that 

bears a special relationship to the charity. Courts have found special interest 

standing where the class of entities is “sharply defined and its members are 

limited in number.” Hooker, 579 A.2d at 614. “[A] plaintiff should have a 

direct and defined interest, distinct from that of the general public, in the 

enforcement of the charitable obligations at issue to claim a ‘special interest’ in 

the charity.” Blasko, supra at 70.

Second Church contends that it is a branch church, one of 1,400 

Christian Science churches, that is defined by its unique connection to the 

Mother Church. Second Church relies upon several cases to argue that other 

courts have “granted special interest standing to more attenuated persons.” 

For instance, Second Church relies upon Y.M.C.A. of City of Washington, 

where members of a local branch brought suit claiming that the YMCA 

breached a charitable trust by allowing the local branch building to deteriorate 

and by closing it. Y.M.C.A. of City of Washington v. Covington, 484 A.2d 589, 

591 (D.C. 1984). In holding that the plaintiffs had special interest standing, 

the District of Columbia Court of Appeals concluded that the members of the 

branch received a particular benefit from this local branch and the closing of 

the building injured them in particular. Id. at 592. Similarly, in Alco Gravure, 

the plaintiffs ― a corporate employer whose employees were intended 

beneficiaries of the Foundation, and two individual employees of the corporate 

plaintiff ― constituted a class of potential beneficiaries of the Foundation. Alco 

Gravure, 479 N.E.2d at 753-54 (“The Foundation’s primary purpose was . . . to 

assist employees of the founder’s corporations and their families.”). The 

plaintiffs were entitled to a preference in the distribution of the defendants’ 
15

funds and were therefore challenging the dissolution of the Foundation and the 

complete elimination of their status as preferred beneficiaries of the funds. Id. 

at 754-56. The court found that the plaintiffs had special interest standing 

because the class of beneficiaries was both well-defined and entitled to a 

preference in the distribution of the defendants’ funds. Id. at 755. The court 

also granted standing because it found that the policy reasons for limiting 

standing did not apply to the circumstances in that case. Id. at 756. 

Specifically, the court concluded that “the present action concerns not the 

ongoing administration of a charitable corporation, but the dissolution of that 

corporation and the complete elimination of the individual plaintiffs’ status as 

preferred beneficiaries of the funds.” Id.

The cases relied upon by Second Church concern plaintiffs that comprise 

a sharply defined set of potential beneficiaries with a greater interest in the 

charitable trust and corporation than the general public. Second Church fails 

to demonstrate that it is in such a class. The income from the Clause VIII 

Trust is to be utilized for the purpose of promoting and extending the religion of 

Christian Science. This broad language dispels any notion that the

distribution of the income is limited to a small, identifiable class. The trust 

was intended to benefit more than just the branch churches. Moreover, 

Second Church is not alleging a harm directly related to its church, but rather 

is challenging ongoing administration that could impact all of the potential 

beneficiaries. Thus, the class of potential beneficiaries is not sharply defined. 

Because Second Church is not in a small, well-defined class, we agree with the 

trial court that “the potential for vexatious litigation is heightened.” We are not 

persuaded by Second Church’s attempt to alleviate this concern by arguing

that the appointment of an independent trustee “will likely eliminate the need 

for the special interest standing it seeks.” Accordingly, this factor weighs 

against standing.

v. Subjective Factors and Social Desirability

Second Church next argues that it is socially desirable to grant it 

standing. Blasko describes this factor as somewhat of a catch-all factor, 

applying to “those cases where there seemed to have been an egregious wrong 

which would otherwise go uncorrected.” Blasko, supra at 75.

The trial court found that although it remained “concerned about the 

embedded conflict,” it did not find Second Church’s claim that it “is ‘well 

positioned to monitor and enforce the terms of the Trusts’ due to its status as a 

branch church and knowledge of the religion . . . [to] weigh[] heavily in its 

determination of standing.” We agree. The DCT has acknowledged the conflict 

and is actively involved in the oversight of the trust, and Second Church has 

been encouraged to share its perspective with the DCT. Importantly, under 

RSA 7:20, the DCT “shall have and exercise all the common law and statutory 

rights, duties, and powers of the attorney general in connection with the 
16

supervision, administration, and enforcement of charitable trusts.” See also

RSA 7:19-:32-a (2013 & Supp. 2018).

Consequently, after considering all of the factors together, we conclude 

that Second Church has failed to demonstrate that it has a special interest in 

the Clause VIII Trust sufficient to grant it standing to petition for the 

appointment of an independent trustee to the trust.

B. Procedural Issue

Finally, Second Church argues, in passing, that the trial court erred

when it denied it standing on a limited record. Specifically, Second Church 

asserts that the trial court erred by “effectively” requiring that it “prove each 

Blasko factor by a preponderance of the evidence” without the benefit of 

discovery and without holding an evidentiary hearing. However, the record 

does not show either that the trial court used a preponderance of the evidence 

standard when it applied the Blasko factors or that Second Church complained 

to the trial court about its inability to obtain discovery.2 See Halifax-American 

Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018). Similarly, there 

is no evidence in the record that Second Church requested an evidentiary 

hearing or argued to the trial court that it erred by not holding one. See id. 

Accordingly, we decline to address these arguments because Second Church 

did not provide the trial court with an opportunity to address them.

Because we conclude that Second Church lacks standing, we need not 

address its argument requesting the appointment of an independent trustee. 

We reiterate the trial court’s sentiment that Second Church is encouraged to 

share its perspective and concerns with the DCT, and, when appropriate, seek 

to file as amicus curiae with the trial court.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ., 

concurred.

 

2 We observe that the material facts are largely undisputed. In addition, the record indicates that 

Second Church sought additional time to obtain discovery from the DCT and the Mother Church. 

Second Church never sought the trial court’s permission or authorization to either engage in or 

compel discovery and, thus, did not raise this argument before the trial court.