Probate, Procedure, and Property

On May 23, SCOV issued two opinions: one land use opinion and one probate opinion. We’ll jump into the land use opinion first because, well, because. 

Developer did a land swap with South Burlington and, surprise, surprise, wanted to put in a 32-unit housing development. The obtained land was formerly part of Wheeler Nature Park. The permit was initially approved in 2021 and went unchallenged. But developer then filed to amend the permit. Neighbors didn’t agree with that plan and, after the amendment got approved, challenged the permit in the environmental division. Getting no love from the environmental division, neighbors ask SCOV to step in. 

SCOV declines. SCOV concludes neighbors didn’t properly preserved their permit-amendment argument for appeal, and that the Environmental Division’s findings—that the project met Act 250’s criteria—are supported by the evidence. Is there more to it? Of course. But I’m lazy. Here’s a link. In re Wheeler Parcel, 2025 VT 28. 

Ah, probate. Well, sort of. Our May 23 installment is about trusts and estates. Anna was a well-known children’s author. After Anna died, Anna’s daughters (plaintiffs) claimed that Anna’s partner unduly influenced Anna to amend her trust, increasing partner’s share of royalties at their expense. They also alleged an oral agreement in which partner promised to leave his estate to them in exchange for this increased trust share. The plaintiffs sued in the civil division for intentional interference with inheritance, breach of contract, promissory estoppel, unjust enrichment, and constructive fraud. The trial court granted summary judgment to partner. Daughters appeal. 

SCOV affirms. But the majority first holds that intentional interference with inheritance is a valid tort in Vermont. However, such claims have to start out in probate court when they relate to trust administration. And that puts plaintiffs in a bind. So, the majority agrees with the trial court that it didn’t have jurisdiction over the intentional interference with expected inheritance claims.    

No traction on the breach of contract or promissory estoppel claims. The unjust enrichment and constructive fraud claims get the probate-division-exclusive-jurisdiction bar. And thus, the majority affirms.  

Justice Waples dissents. She notes that there’s a difference between claims involving inter vivos trusts, like this one, and claims involving wills, which could be probate barred. Because this isn’t a probate-exclusive claim, in Justice Waples’s belief, summary judgment wasn’t appropriate. Dewdney v. Duncan, 2025 VT 26.

One opinion on May 30. We’re back to land use, this time dealing with ducks, cannabis, and RAPs. The RAPs are not the kind of raps one typically associates with cannabis use, though. These are “Required Agricultural Practices” for farming (not necessarily weed). There was a winding path to SCOV, starting with zoning enforcement and ultimately going to the environmental division. In the environmental division, landowner argued that that his duck-raising operation and his weed-growing operation were exempt from all municipal regulation. The environmental division agreed, and granted summary judgment in his favor.  

Neighbors appeal. SCOV reverses. SCOV reasons that the statutory exemptions from municipal regulation are only from local rules that would duplicate or conflict with specific state-imposed water-quality and land-management standards. In other words, Essex can still enforce  general zoning prohibitions on farming and cannabis cultivation in residential districts, so long as it doesn’t try to regulate the same practices that are already governed by state rules. Back to the environmental division for further development. Farmin’ ain’t easy. In re 8 Taft Street, 2025 VT 27. 

Yesterday’s (June 6) sole opinion brings us back to probate court and trusts. In this case, the kids sought to remove dad as trustee of two family trusts, terminate the trusts, and make dad repay millions to the trusts for what they claimed were poor investments—most notably, the construction of the Inn at Newport Ranch in California. The kiddos alleged dad prioritized a personal legacy project over beneficiaries’ financial interests and created a complex investment structure that would leave them with illiquid, minority interests. Dad, who managed the trusts for decades and oversaw significant asset growth, defended his decisions as prudent, long-term investments made transparently and with the beneficiaries’ knowledge. The probate court originally agreed with kiddos, but the appeal to the civil division ultimately played like a reverse UNO card, not only keeping dad in charge of the trusts but also awarding him attorney’s fees to the tune of $200K+. Kids appeal.  

On appeal, SCOV reasons that the trial court didn’t abuse its discretion and that all the evidence showed that dad—though in his nineties by the time of trial—was generally a good steward of the family trusts’ funds and that the kids hadn’t actually shown that the inn was that bad an investment. On the attorney’s fees front, it’s not an abuse of discretion and dad gets paid. Ever watched Succession on HBO or Max or HBO Max or whatever it calls itself these days? This case could probably be an episode. Jackson v. Jackson, 2025 VT 29.