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Only Preponderance Of Evidence Required To Disinherit Killer

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David Pickett died in Portsmouth, New Hampshire, in February, 1993. The cause of his death, as the New Hampshire Supreme Court later described it, was “the infliction of an incision wound to his neck by one or more unknown persons.” No one has been prosecuted for his murder, but the police did have a suspect—his brother Robert.

During his life David Pickett never got around to signing a will. In the language of the law, he died “intestate.” Under New Hampshire law (as under the law of most states), that means his estate would pass first to his spouse, then to his children and grandchildren, then to his parents and their issue. David Pickett was not married and he had no children; his parents were both already dead. That meant that his estate would be distributed half to his sister Mary P. Hopwood and half to his brother Robert Pickett.

Mary Hopwood filed an action in the New Hampshire courts asking that Robert Pickett be precluded from receiving his share of the inheritance. She claimed that he had killed his brother, and she pointed to a long-standing provision of the law that prevents a killer from profiting from his wrongful act. He should be treated as having died before the brother he killed, she argued, and that would mean that she would receive the entire estate.

If Robert Pickett had been charged with murder, of course, the prosecutor would have to prove beyond a reasonable doubt that he had killed his brother. Mary Hopwood would not have that heavy of a burden of proof, but the lawyers in the case disagreed about what standard did apply to her claim. Would she only have to show that it was more likely than not that brother Robert killed David, or would she have to prove that assertion by the more rigorous standard of “clear and convincing evidence?”

The trial judge held her to the higher standard, and ruled that she had not met her burden of proof. She appealed to the Supreme Court, which determined that she should have only been required to show that Robert Pickett was more likely the killer than not; the case was remanded to give her another chance.

At the first trial, Ms. Hopwood tried to introduce evidence from the pending criminal investigation, including a recording of conversations between her daughter and Robert Pickett. The trial judge had precluded all evidence from the criminal investigation to protect ongoing police efforts. The appellate justices directed that the transcript be admitted. The key question addressed in those transcripts: did Robert Pickett mail a letter to “the Estate of David Pickett” on the morning before (or, as he insisted, immediately after) he was informed by police of his brother’s death? Hopwood v. Pickett, August 23, 2000.

Like New Hampshire, Arizona provides for the automatic disinheritance of a killer. Conviction in a murder trial is one way to accomplish that result, but even if the alleged killer is not convicted (or not even charged) other heirs can file a request for the disinheritance. Arizona’s statute makes it crystal clear that only the lower standard of proof–preponderance of the evidence–is required, just as the New Hampshire Supreme Court ultimately ruled.

An interesting sidelight to the Hopwood v. Pickett case: while the appeal was pending, the New Hampshire Supreme Court was rocked by (unrelated) allegations of misbehavior and malfeasance. After briefs had been submitted and oral argument concluded, one Justice resigned under a cloud, another decided to accept retirement and a third (the Chief Justice) removed himself from consideration of the Pickett case, apparently to focus his attention on an impeachment trial in the State Senate. Since that left only two Justices to decide the issue, the Court asked two newly appointed Justices to fill the gap, even though they had not heard the oral argument of lawyers. With the consent of lawyers from both sides, those four jurists unanimously decided the Pickett case. Apparently the New Hampshire judicial system works reasonably efficiently even in times of crisis.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.