On July 17, 2017, the Chakalos sisters petitioned a New Hampshire probate court to declare their nephew, Nathan Carman, their father’s murderer.1 Just days before Christmas in the winter of 2013, 87 year-old John Chakalos was found dead from multiple gunshot wounds in his Connecticut home.2 His grandson, Carman, was the last person to see him alive.3 Contending their father’s sudden death “froze his estate plan at a time when it was structured to provide millions of dollars for [Carman’s] benefit,”4 the Chakalos sisters claim that Carman murdered his grandfather to prevent changes to the estate plan and to accelerate his inheritance.5 Pursuing a “slayer” action against the person they believe killed their father, the sisters requested that the court declare Carman “committed this heinous act out of malice and greed” and impose a constructive trust over the portion of the estate that would otherwise flow to his benefit.6 Rarely seen in New Hampshire probate courts, such a claim stands not only to captivate an audience hungry for scandal but also to shape New Hampshire jurisprudence. The law underlying their action is simple. A “slayer rule” requires “[a]n individual who feloniously and intentionally kills the decedent” to “forfeit all benefits . . . with respect to the decedent’s estate[.]”7 A reflection of the common law maxim that a wrongdoer should not profit from his wrongful act,8 the American slayer rule aims to preserve the testator’s unspoken intent – that no victim would want their killer to benefit by virtue of their death.9
Unlike most jurisdictions in the United States, the state of New Hampshire never enacted a statute to prohibit the distribution of property from the decedent to the slayer.10 Perhaps because parties are hesitant to try a case absent the legal certainty of a statute, New Hampshire courts have only twice decided claims brought under the state’s common law slayer rule.11 With only underdeveloped case law on which to refer, the state’s approach to the slayer rule remains somewhat ambiguous.12 If the Chakalos sisters proceed in their lawsuit, they will present the New Hampshire judicial system the opportunity to not only prevent the unjust enrichment of a murder victim’s slayer but also to forge new legal ground within the jurisdiction.13
I. The Crime
“[H]e is a complicated mess,” Linda Carman wrote of her son in a 2011 post in a mental health support forum.14 Seventeen-year-old Carman had stopped taking his medications.15 Suffering from “paranoid delusions” and “religious idiocy,” he had recently called his high school vice principal “Satan” and a secretary “an agent of the devil.”16 Linda searched for a mental health facility that would provide her son “top notch, effective care.”17
Diagnosed with Asperger’s syndrome, a high-functioning form of autism, Carman struggled to interact with his peers.18 Carman was, however, close with his grandfather.19 A wealthy New Hampshire real estate developer, John Chakalos visited Carman for hours at a time when he was admitted to a facility for psychiatric treatment.20 After his discharge, Chakalos gave Carman money to move into his own apartment.21 Carman later described his grandfather as “the most important person in the world” to him.22
In December 2013, Carman visited his grandfather for dinner at his home.23 The next morning, Chakalos was found in his bed, dead from multiple gunshot wounds.24 He “left behind a $44 million estate.”25
Law enforcement soon identified Carman as a “person of interest” in the shooting death of his 87 year-old grandfather.26 The then-teenager first triggered police suspicions when they learned that he had planned to meet his mother after that fateful dinner, but never showed.27 Investigators later discovered that Carman recently purchased a gun of the same caliber used to kill Chakalos – a weapon which he failed to disclose to investigators and upon police inquiry claimed to have misplaced.28 The investigation further revealed that Nathan discarded both the hard drive of his computer and the GPS system he used on the night of the murder.29 When police pressed Carman to take a polygraph test, he declined.30 Dubious as Carman’s behavior was, police never made an arrest.31 Chakalos’s murder remains unsolved.32
In the years following her father’s murder, Linda Carman maintained a close relationship with her son.33 In September 2016, Carman and his mother set sail on his boat for an overnight trip off the coast of Rhode Island.34 In a later deposition, Carman told lawyers that he and his mother spent the next morning fishing.35 That afternoon, Carman suddenly realized the boat was taking on water.36 As Carman prepared to abandon ship, he never radioed for help or activated the boat’s emergency beacon.37 Carman claims he never saw his mother as the boat quickly sank.38
Eight days later, a passing freighter found Carman floating in an emergency raft off the coast of Martha’s Vineyard.39 Linda was never found.40 His grandfather dead and his mother lost at sea, Carman now stood to inherit millions from the Chakalos estate.41
II. The New Hampshire Approach to the Slayer Rule
Although today recognized as a matter of state probate law, the American slayer rule in fact originated in an insurance fraud decision.42 In Mut. Life Ins. Co. v. Armstrong, the United States Supreme Court determined that a man convicted of the murder of his business partner could not receive the proceeds of the life insurance policies he had taken out in his victim’s name, finding “[i]t would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of the party whose life he had feloniously taken.”43 Just three years after the Armstrong decision, the state of New York, in Riggs v. Palmer, encountered the issue of whether a slayer could inherit property devised to him in his victim’s will.44 In Riggs, a grandson poisoned his grandfather when he learned his grandfather planned to reduce his inheritance.45 Although no statute under probate or criminal law prevented the murderous grandson from inheriting under the directive of his grandfather’s original will, the New York court invoked the Armstrong determination that no wrongdoer should be “permitted to profit by his own fraud, or to take advantage of his own wrong” and found that he could not receive any portion of his grandfather’s estate.46 Soon after the Riggs decision, nearly half of all state jurisdictions codified a slayer statute.47 Today, the vast majority of states have adopted the slayer rule in either statutory or common law form.48
Where many slayer statutes prevent the killer from taking under the victim’s estate by finding legal title never vested in the killer,49 the New Hampshire common law approach instead employs an equitable device known as the constructive trust.50 A constructive trust compels an individual who obtains a property interest by “unjust, unconscionable, or unlawful means” to convey that interest to whom it “justly belongs.”51 In the event of an “intentional and unlawful killing,” the New Hampshire court may charge the slayer as a constructive trustee to prevent his unjust enrichment from criminal acts of murder or voluntary manslaughter.52 The constructive trust approach, however, does not require the so-called slayer be convicted of the crime to lose claim to the estate.53 To impose a constructive trust, the New Hampshire court need only find by a “preponderance” of the evidence that the slayer “wrongfully caus[ed] the event that accelerated the inheritance.”54
In Hopwood v. Picket, Mary Hopwood petitioned the New Hampshire probate court to impose a constructive trust on the inheritance of her brother, Robert Pickett, from the estate of their slain brother, David.55 Robert, Hopwood alleged, killed David after the two disputed over the tax bill of their shared property.56 Police never charged Robert for the murder, and the thrust of Hopwood’s allegations against her brother rested on an envelope Robert addressed to “The Estate of David Pickett” prior to his notification of David’s death.57 Although originally dismissed for Hopwood’s failure to provide “clear and convincing” evidence of Robert’s role in David’s death, the New Hampshire Supreme Court determined on appeal that Hopwood needed only show her brother’s wrongdoing by a “preponderance” of the evidence to warrant the imposition of a constructive trust.58
As an exercise of equitable relief, the imposition of the constructive trust in New Hampshire slayer actions hinges not, however, on the mere fact of murder but on the killer’s unjust enrichment.59 In Kelley v. State, the state contested George Tucker’s claim as his wife’s “sole surviving and heir” after he pleaded guilty to her murder.60 Heavily in debt and seeking security, Cora Tucker married her husband with the understanding that he would pay her bills.61 Tucker subsequently paid off a significant amount of debt Cora incurred prior to their marriage.62 The pair were married a mere ten months when Tucker shot and killed Cora during an argument.63 Cora’s estate, however, amounted to “considerably less” than the money he expended during their marriage.64 Therefore, his actions, although murderous, did not cause “the unjust enrichment the constructive trust is designed to prevent.”65 Because George Tucker would not technically “profit” from his crime upon inheritance, the court determined Tucker was entitled to benefit from his late wife’s estate.66
The Kelley decision clarified that New Hampshire courts do not impose constructive trusts to punish killers for their bad actions but instead to prevent the killer’s profit from their crime.67 Under that rationale, Kelley further determined that a killer who has a vested interest in the property at stake is not chargeable as a constructive trustee.68 A vested interest is greater than a “mere expectation” but is “a title, legal or equitable, to the present or future enforcement of a demand.”69 While the murderer’s position cannot improve as a result of the murder, a “murderer should not be compelled to surrender property to which he is entitled apart from [the crime].”70
The Kelley court also acknowledged that a killer who prevails on an insanity defense is not chargeable as a constructive trustee.71 Although New Hampshire courts have not yet fleshed out this exclusion in the context of a slayer action, courts generally follow the insanity test of their jurisdiction when a defendant raises this defense.72 In a question of fact for the jury, the New Hampshire test for insanity requires the defendant show by a high probability that: (1) he was suffering from mental disease or defect when he committed the alleged acts; and (2) those acts where the product of his mental disease or defect.73 Evidence of insanity includes the nature of defendant’s act, the defendant’s claims of hallucinations or delusions, the defendant’s knowledge of the difference between right and wrong, and the defendant’s demonstrated impulsivity or efforts to avoid detection in the execution of the crime.74
III. The Case against Carman
Returning to the Carman case, the deceased John Chakalos created the Chakalos Family Dynasty Trust before his death.75 Under the terms of Chakalos’s estate plan, his residuary estate would be divided into equal shares and deposited into subtrusts to benefit each of his daughters.76 Upon Linda’s death, the property of her subtrust would pass to a trust for her only living descendant – Carman.77
In addition to the assets in the Dynasty Trust, John Chakalos established a bank account prior to his death containing approximately $400,000 and named Linda, Carman, and himself as owners with rights of survivorship.78 Upon Chakalos’s death, Linda and Carman became sole owners of the joint account.79 Before her disappearance, Linda transferred her interest to her son and left Carman the sole owner of the account.80
As the Chakalos sisters prepare to close their father’s estate, several million dollars stand to flow to the Dynasty Trust.81 With Linda presumed dead, the distribution rules of the trust dictate that the assets due to her substrust now flow to Carman.82 Absent action from the court, Carman will not only retain his rights of survivorship on the joint account but he will also inherit the portion of Chakalos’s estate originally intended for Linda.83
To prevent Carman’s benefit from their father’s estate, the surviving Chakalos sisters must prove by a preponderance of the evidence that Carman “intentional[ly] and unlawful[ly]” murdered their father.84 In an uncanny parallel to the origin story of the American slayer rule, the Chakalos sisters’ allegations against their nephew echo the accusations found in Riggs, portraying Carman as the greedy grandson who murders the family patriarch to ensure his hearty inheritance. In Riggs, however, the grandson poisoned his grandfather upon realization that his grandfather intended to reduce his inheritance. The allegations against Carman point to no such motive. The sisters do not allege Chakalos had any plays to change his estate plan; rather, they claim, his untimely death merely robbed him of the opportunity to do so had he so decided. Without the panicked and urgent motive to kill that was present in Riggs, the success of the Chakalos sisters’ slayer action relies primarily on the circumstantial evidence against Carman uncovered during their father’s murder investigation, evidence that law enforcement determined could not establish probable cause to make an arrest.
Carman’s mental health presents an additional wrinkle in the slayer action. Although the Chakalos sisters may point to Carman’s behavior on the night of the murder and during the investigation as evidence against him in his grandfather’s murder, Carman may argue such inculpatory conduct was a manifestation of his Asperger’s. However, because police could not establish probable cause by a “fair probability” to arrest Carman for his grandfather’s murder, the court here is unlikely to find that the evidence against Carman “more likely than not”85 establishes his culpability.86
Even if the Chakalos sisters can show by a preponderance of the evidence that Carman killed their father, Carman may use the “substance” of his circumstances to preserve his right to receive from the Chakalos estate. Although Carman only had an expectancy interest in future distributions from the Dynasty Estate, he may argue he had a vested interest in the $400,000 joint bank account he shared with his mother and grandfather.87 If Carman’s access to the account was not subject to John Chakalos’s discretion, Carman may argue his joint ownership constituted more than “mere expectation” but legal “title” to a shared property interest that he enjoyed prior to his grandfather’s murder. Because a “murderer should not be compelled to surrender property to which he is entitled apart from the [crime],” the court may recognize Carman’s right of survivorship to the bank account as a vested interest and refuse to impose a constructive trust on those assets.88
Carman could potentially preserve his interest in both the joint bank account and the Dynasty Trust if he prevails on an insanity defense. Although Carman’s disposal of the suspected murder weapon and removal of his computer hard drive and GPS system imply efforts to conceal his crime and may read as his knowledge of wrongful conduct, New Hampshire’s product-defect approach to insanity does not hinge solely on the defendant’s capacity to understand the wrongfulness of his actions.89 To succeed on an insanity defense, Carman would need to show that he was suffering from a mental disease or defect when he murdered his grandfather and that his violent actions were the product of this condition. Consistent with findings of “hallucinations” and “delusions” that the state identifies as possible markers of insanity, Linda reported her son suffered from “paranoid delusions” and “religious idiocy” and committed him to a facility for psychiatric treatment. Further, Linda’s description of Carman’s high school outburst suggests an impulsivity and lack of control identified with insanity.
The advancement of such a defense, however, would not only require Carman to admit he committed the Chakalos murder but would also potentially open the door to criminal charges. Further complicating Carman’s use of such a defense, courts generally require a finding of the defendant’s insanity in a criminal trial before they refuse application of the slayer rule.90 Although New Hampshire courts have never decided a slayer action where the defendant raised an insanity defense and Carman’s predicted success on such an argument is unclear, he would likely not want to employ such a defense unless he is already facing criminal charges.
In court, Carman continues to deny his role in either the murder of his grandfather or the presumed death of his mother.91 Questions surrounding their tragic fates, however, linger. At the heart of the Carman action is a family struggling to cope with mysterious loss – searching for answers to suspicions, accusations, and uncertainties. In perhaps a common thread of probate law, parties to slayer actions seek resolution to testamentary disputes with the vengeance of a vigilante. Mourning under a cloud of murder accusations and money grabs, slayer suits stand not only as a tragic avenue to prevent unjust enrichment but also as a bitter outlet for unresolved grief.
* Candidate for Juris Doctor, 2019, Northeastern University School of Law.
1 Petition for Declaratory Judgment, Replevin, Restitution & Other Equitable Relief, & to Impose a Constructive Trust, Santilli v. Carman, No. 313-2017-EQ-00396 (N.H. 6th Cir. Prob. Div. July 17, 2017) [hereinafter Carman Petition].
2 Shelley Murphy & Evan Allen, The Lonely Boy She Feared For, Bos. Globe, Oct. 9, 2016, at A1.
4 Carman Petition, supra note 1, ¶ 45.
5 Id. ¶ 53.
6 Id. ¶ 1.
7 See Unif. Probate Code § 2-803(b) (amended 2010), 8 pt. 1 U.L.A. 323 (2013).
8 See Karen J. Sneddon, Should Cain’s Children Inherit Abel’s Property?: Wading into the Extended Slayer Rule Quagmire, 76 UMKC L. Rev. 101, 109 (2007).
9 See id. at 103.
10 Kelley v. State, 196 A.2d 68, 69 (N.H. 1963).
11 Id.; see also Hopwood v. Picket, 761 A.2d 436 (N.H. 2000).
12 See Ethan DeWitt, Slayer Rule Lawsuit by Chesterfield Man’s Family Could Forge New Legal Territory, The Keene Sentinel, Aug. 1, 2017 (speculating that legal uncertainties surrounding the New Hampshire slayer rule has promoted parties litigating slayer claims to settle out of court).
14 Murphy & Allen, supra note 2.
22 Shelley Murphy, Aunts’ Lawsuit Asserts Man Killed for Money, Bos. Globe, July 18, 2017.
23 Carman Petition, supra note 1, ¶ 15.
24 Id. ¶ 9.
25 Murphy & Allen, supra note 2.
26 See Murphy, supra note 22; see also Carman Petition, supra note 1, ¶ 10.
27 Murphy & Allen, supra note 2.
28 Carman Petition, supra note 1, ¶ 13.
29 Id. ¶ 18.
30 Id. ¶ 19.
31 Id. ¶ 10.
33 Murphy & Allen, supra note 2.
34 Carman Petition, supra note 1, ¶ 21.
35 See Dave Altimari, Records: Insurance Company Employees In Nathan Carman Case Concerned About Safety, Hartford Courant (Aug. 7, 2017); See Complaint for Declaratory Judgment at ¶ 14, Complaint, Nat’l Liab. & Fire Ins. Co. v. Carman, No. 17-cv-00038-S-AS (D. R.I. Jan. 27, 2017).
36 Complaint for Declaratory Judgment, supra note 35, ¶ 15.
37 Id. ¶ 16.
38 Id. ¶¶ 15–16.
39 Carman Petition, supra note 1, ¶ 31.
40 Id. ¶ 33.
41 Id. ¶ 33–45.
42 See Riggs v. Palmer, 22 N.E. 188, 190 (N.Y. 1889) (“No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”), citing Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591 (1886).
43 Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 600 (1886).
44 See Riggs, 22 N.E. at 189.
46 Id. at 190, citing Armstrong, 117 U.S. at 599.
47 See John W. Wade, Acquisition of Property by Willfully Killing Another – A Statutory Solution, 49 Harv. L. Rev. 715, 720—721 (1936) (noting that 23 states and the District of Columbia had “passed acts which cover the [slayer] subject with varying degrees of completeness” by the 1930s).
48 See Robert F. Hennessy, Property – The Limits of Equity: Forfeiture, Double Jeopardy, and the Massachusetts “Slayer Statute,” 31 W. New Eng. L. Rev. 159, 170 (2009). Sneddon, supra note 8, at 109.
49 See Callie Kramer, Guilty by Association: Inadequacies in the Uniform Probate Code Slayer Statute, 19 N.Y.L. Sch. J. Hum. Rts. 697, 704–705 (2003).
50 See Kelley, 196 A.2d at 70.
51 Caryl A. Yzenbaard et al., Bogert’s the law of Trusts and Trustees § 471, Westlaw (database updated June 2017).
52 See Kelley, 196 A.2d at 70; see also Hopwood v. Pickett, 761 A.2d 436, 438 (N.H. 2000) (“The slayer is unjustly enriched in the sense that he or she hastens acquisition of estate property, thereby avoiding the risk of dying first or being disinherited.”).
53 See Hopwood, 761 A.2d at 438.
55 Id. at 437.
56 See Karen Dandurant, Unsolved Murder Divides a Family, Seacoastonline.com (Jan. 30, 2000, 2:00 AM), http://www.seacoastonline.com/article/20000130/news/301309995.
57 See Hopwood, 761 A.2d at 438–39.
58 Id. at 437–38.
59 Kelley, 196 A.2d at 70 (“[W]e rely on the constructive trust approach where the facts and circumstances warrant its application.”).
60 Id. at 69.
64 Id. at 71
66 Id. at 70–71.
67 Id. at 70.
69 In re Goldman, 868 A.2d 278, 282 (N.H. 2005).
70 Kelley, 196 A.2d at 70.
72 See Laurel Sevier, Kooky Collects: How the Conflict between Law and Psychiatry Grants Inheritance Rights to California's Mentally Ill Slayers, 47 Santa Clara L. Rev. 379, 395 (2007).
73 See New Hampshire Criminal Jury Instructions, RSA 628:2 (2010), https://www.nhbar.org/uploads/pdf/CJI-278.pdf; see also State v. Abbott, 503 A.2d 791, 794 (N.H. 1985) (“The New Hampshire rule on insanity has long been that the question of whether a defendant is mentally ill, and whether the crime is a product of that illness[.]”).
74 See New Hampshire Criminal Jury Instructions, supra note 73.
75 Carman Petition, supra note 1, ¶¶ 36–37.
76 Id. ¶¶ 36–37.
77 Id. ¶ 41.
78 Id. ¶ 44.
79 Id. ¶ 44.
80 Id. ¶¶ 33, 44.
81 Id. ¶ 42.
82 Id. at 1, ¶ 41.
83 Id. at 1, ¶ 44.
84 See Kelley, 196 A.2d at 70.
85 See Kivikovski v. Smart Prof’l Photocopying, No. CV 00–524–B, 2001 WL 274763, at 1 (D. N.H. Feb. 20, 2001).
86 See Illinois v. Gates, 462 U.S. 213, 246 (1983).
87 See N.H. Rev. Stat. Ann. § 564–B:8–814(b) (2017) (“[I]f a distribution to or for the benefit of a beneficiary is subject to the exercise of the trustee's discretion, whether or not the terms of a trust include a standard to guide the trustee in making distribution decisions, then the beneficiary's interest is neither a property interest nor an enforceable right, but a mere expectancy.”); see also In re Goodlander, 20 A.3d 199, 205 (N.H. 2011) (finding discretionary trust distributions were a “mere expectancy” and not property subject to equitable division during divorce).
88 See Kelley, 196 A.2d at 70 (citation omitted).
89 But cf. Turner v. Estate of Turner, 454 N.E.2d 1247, 1252 (Ind. Ct. App. 1983) (finding that the application of a doctrine that prevents profit from wrongdoing was not appropriate because the defendant lacked “substantial capacity to appreciate the wrongfulness of his conduct” and legally committed no wrong).
90 See Ford v. Ford, 512 A.2d 389, 399 (Md. 1986) (finding a daughter who was acquitted of her mother’s murder by reason of insanity could receive from her estate); see also Estate of Armstrong v. Armstrong, 170 So. 3d 510, 511 (Miss. 2015) (finding a man who murdered his elderly mother could receive from his mother’s estate if he was insane at the time of the murder and his conduct was thus not willful).
91 See Answer to Petition for Declaratory Judgment at 2–5, Santilli v. Carman, No. 313-2017-EQ-00396 (N.H. 6th Cir. Prob. Div. 2017).