Estate of Mickelson, 900407

• Decision Date: 15 November 1991
• Docket Number: No. 900407,900407
• Citation: Estate of Mickelson, 477 N.W.2d 247 (N.D. 1991)
• Parties: In the Matter of the ESTATE OF Roy Edward MICKELSON, Deceased. Paula Jean ROGERS, Petitioner and Appellant, v. James Roy MICKELSON, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 247

477 N.W.2d 247

In the Matter of the ESTATE OF Roy Edward MICKELSONDeceasedPaula Jean ROGERS, Petitioner and Appellant, v.James Roy MICKELSON, Respondent and Appellee.

Civ. No. 900407

Supreme Court of North Dakota.

Nov. 15, 1991.

Lyle G. Witham(argued), Towner, Leo F.J. Wilking(argued), Nilles, Hansen & Davies, Ltd., Fargo, for petitioner and appellant.

Mary K. O'Donnell(argued), Rolla, for respondent and appellee.

GIERKE, Justice.

This is an appeal from an order of the County Court of Rolette County, which admitted to probate the will of Roy Mickelson dated December 9, 1989.The county court determined that the will was validly executed, not the product of undue influence and that the testator had testamentary capacity.We affirm.

The appellant, Paula Rogers(hereinafter Paula), is the daughter of Roy Mickelson(hereinafter Roy) and the sister of James Mickelson(hereinafter Jim).Roy had one other son and four other daughters.Roy was known to have a loving relationship with all of his children.However, Jim was the only child who lived in the Rolla area where Roy resided.Jim had farmed with his father for the last 15 years.Under Roy's will Jim received all of Roy's estate.

The facts are that on the morning of December 9, 1989, Roy Mickelson was not feeling well and asked his son, Jim, to come to his home.There was evidence that Roy may have fallen out of bed and that he had some pain in his hand throughout the morning.When Jim arrived, he noticed nothing wrong with his father.When he asked his father what was wrong, his father replied, that "it was just stress".According to the testimony of Jim, he and his father talked for awhile and then Roy began to write out a will which left Jim five quarters of land.Jim suggested that Roy contact an attorney and, ultimately, Roy directed Jim to call Bruce Gibbens in Cando.Jim initially spoke with Mr. Gibbens and then Roy spoke with Mr. Gibbens discussing the disposition of his property.Mr. Gibbens then drafted the will and drove with his wife and son to Roy Mickelson's home, some 40 miles away.

After Mr. Gibbens arrived, Roy showed him around the house.Roy noticed that Mrs. Gibbens was in the car and asked if she could come and witness the will.Roy telephoned Alphonse Guilbert, a neighbor and father-in-law of Jim, to be a second witness for the will.Mr. Guilbert had known Roy for more than 10 years.Guilbert testified that he didn't notice anything unusual about Roy when the will was signed.Although Mr. and Mrs. Gibbens were not acquainted with Roy, they also testified that they noticed nothing to indicate that he was suffering from a stroke.The testimony indicated that Roy reviewed the will and indicated his approval by his signature.

The will executed by Roy Mickelson on December 9, 1989 stated:

"II

"I give, devise and bequeath all of the rest of my property, real personal and mixed, wheresoever located, to my son, James Roy Mickelson, to have and to hold as his property absolutely excepting from this grant, however, those bequests of my tangible property as I shall make pursuant to Section 30.1-08-13 of the North Dakota Century Code.

"III

"I specifically acknowledge that I have other children, but have omitted them from this will intentionally, and I specifically acknowledge that they shall receive nothing under the terms of this will."

Approximately 15 to 20 minutes after the will had been signed, Roy's face began to droop and he showed some major physical symptoms of a stroke.An ambulance was summoned and he was taken to the Rolla hospital.He was subsequently air-lifted to St. Lukes hospital in Fargo, where he passed away on January 29, 1990.

Roy was a farmer, who was actively farming until he took ill on December 9, 1989.Roy was divorced and had seven adult children, all of whom he had a normal relationship with prior to his death.Roy had property which consisted of 5 quarters of land and custom combining machinery.However, Roy had experienced some financial difficulties and was in substantial debt at the time of his death.

When Jim was 15 years old, he quit school and began working with his father full time.At the time of his death, Roy had farmed with his son, Jim, for approximately 15 years.They had an oral partnership agreement.Roy contributed his land, machinery, and labor, while Jim contributed some machinery and labor.They shared expenses equally and Jim received one-third of the income while Roy received the remaining two-thirds.Roy also had a custom combining business which Jim helped him operate.

The Honorable Lester Ketterling heard this case at the Rolette County Courthouse, in June of 1990.The county court specifically found:

"1.* * *

"2.That the will executed by Roy Edward Mickelson on December 9, 1989, and witnessed by two persons was properly executed.

"3.That at the time of signing said will Roy Edward Mickelson had testamentary capacity to make said will.

"4.That James Mickelson did not have a confidential relationship with Roy Mickelson.

"5.That at the time of making said will Roy Edward Mickelson was not under any undue influence."

Paula asserts that the county court order should be reversed for three reasons: 1) That a close personal and business relationship existed between Jim and Roy Mickelson and that the court erred in failing to apply a presumption of undue influence as found in Section 59-01-16 of the N.D.C.C.; 2) that the court erred in not finding any undue influence; and 3) that there was insufficient evidence to support the court's finding of testamentary capacity.

Paula argues that because of the close business and personal relationship between Roy and Jim Mickelson, a confidential relationship existed.North Dakota Century Code Section 59-01-08 states:

"One assuming relation of personal confidence is trustee.Everyone who voluntarily assumes a relation of personal confidence with another is deemed a trustee within the meaning of this chapter not only as to the person who reposes such confidence, but as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control."

North Dakota Century Code Section 59-01-16 states:

"Presumption against trustee.All transactions between a trustee and his beneficiary during the existence of the trust or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration and under undue influence."

Paula's argument assumes that Section 59-01-16, N.D.C.C., applies to will contest cases.We have not previously so applied that section.We recognize that some other states do apply a presumption in will contests but we are not persuaded to do so.Our prior opinions regarding Section 59-01-16, N.D.C.C., have dealt with some estate cases.However, those cases can be distinguished from the case at hand.

Several of the cases failed to find that the beneficiary who was taking under the will was in a position of trustee, agent or attorney-in-fact.SeeMatter of Estate of Thomas, 290 N.W.2d 223(N.D.1980);Matter of Estate of Wagner, 265 N.W.2d 459(N.D.1978).

The case of Matter of Estate of Polda, 349 N.W.2d 11(N.D.1984), involved a son who had arranged for his mother to see an attorney about writing a will.The son, who had taken care of his mother, suggested that she make a formal will.He received the bulk of the estate under the will.The testator's other children argued that because of the fiduciary relationship between the testator and the son, a presumption of undue influence should be applied.This court rejected this argument quoting from Matter of Estate of Thomas, supra.

"We also noted that we had 'rejected the argument that whenever a confidential relationship exists between a party and the testator, coupled with the same party participating in the preparation of the will and receiving a benefit by its terms, a presumption of undue influence arises which shifts the burden of proof.' "

Matter of Estate of Polda, 349 N.W.2d at 15(quotingMatter of Estate of Thomas, 290 N.W.2d at 227).

Therefore, because we hold that the making of a will is not the type of transaction contemplated in Section 59-01-16, N.D.C.C., there is no presumption to be applied in will contest cases.¹

Furthermore, North Dakota has sufficient case law which establishes the criteria required for finding undue influence in a will contest.See, Matter of Estate of Stenerson, 348 N.W.2d 141, 143(N.D.1984);Okken v. Okken, 325 N.W.2d 264, 267-69(N.D.1982);In re Burris' Estate, 72 N.W.2d 884, 889(N.D.1955).

Appellant's second contention is, that even without the benefit of a presumption of undue influence, there was sufficient evidence to establish that Jim exerted undue influence on his father.Paula contends that Jim exerted undue influence when he was alone with Roy on the morning of December 9, 1989, resulting in Roy making a will which left all of his property to Jim and disinherited his other six children.

North Dakota law provides that contestants of a will have the burden of establishing lack of intent or capacity as well as undue influence....