Estate of Ostby, Matter of, 910073

• Decision Date: 04 February 1992
• Docket Number: No. 910073,910073
• Citation: 479 N.W.2d 866
• Parties: In the Matter of the ESTATE OF Gilbert OSTBY, Deceased. Dean OSTBY, Personal Representative of the Estate of Gilbert Ostby, Deceased, Respondent and Appellant, v. Sena BISEK, Petitioner and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 866

479 N.W.2d 866

In the Matter of the ESTATE OF Gilbert OSTBY, Deceased.

Dean OSTBY, Personal Representative of the Estate of Gilbert

Ostby, Deceased, Respondent and Appellant, v. Sena BISEK, Petitioner and Appellee.

Civ. No. 910073.

Supreme Court of North Dakota.

Feb. 4, 1992.

Bruce H. Carlson (argued), and David J. Hauff of McNair, Larson & Carlson, Ltd., Fargo, for respondent and appellant.

Steven K. Aakre (argued), and Armond G. Erickson of Serkland, Lundberg Erickson, Marcil & McLean, Ltd., Fargo, for petitioner and appellee.

MESCHKE, Justice.

Dean Ostby appeals from denial of his post-trial motions and from a judgment declaring that the will filed for the decedent, Gilbert Ostby, was not his will. Dean argues that the trial court did not apply the correct law, that the evidence did not disprove testamentary intent, and that the trial court made erroneous findings of undue influence. We agree. We reverse and remand for a new trial.

Gilbert, a bachelor who lived alone, was hospitalized in Breckenridge on June 13, 1989, with arthritis, prostate discomfort, and coronary artery insufficiency. Early on June 16th, Gilbert again had visited with Glen Ostby about making his will. Glen, a will beneficiary, had declined once before to help Gilbert get a will prepared because of his own poor health. Later that day, Gilbert was transferred from the hospital to a nursing home in Wahpeton.

At the nursing home, Dean visited Gilbert in the late afternoon on Friday, June 16. According to Dean, Gilbert then asked Dean to help arrange an auction sale and to help get a power of attorney and a will prepared for him. Gilbert told Dean what he wanted in a will, and Dean wrote Gilbert's ideas on a piece of discarded cardboard:

Beulah and Betty and Glen will divide the checking acconts [sic] 1 in Hankinson Bank and 1 in Rosholt Bank after all expenses are paid

Dean will get the Homested [sic] and Glen will get the two 80's the Roof 80 and the East 80

Have auction sale as soon as possible on Personal Property

Dad and Sena will not share in the Estate.

Gilbert asked Dean to have attorney Richard Healy at Hankinson prepare the documents.

Dean was unable to reach Healy over the weekend, but on Monday, June 19, Dean took the notes to Healy. Healy had never met Dean before, but knew Gilbert from prior legal work for him. In a few hours, from the notes supplied by Dean, Healy prepared a proposed will and the power of attorney for Gilbert.

Later that same day, Dean obtained a copy of the prepared documents from Healy's office, went to the nursing home, and read the dispositive clauses of the will to Gilbert. After each clause was read, Dean asked Gilbert if that was alright. Gilbert indicated his approval to each clause read to him by responding "okay." Dean read the residuary clause, not covered by the notes but added by Healy, and explained why it was added. This clause divided the residue equally among the same four nieces and nephews that Gilbert designated for specific gifts in his will. Gilbert replied that this clause too was "okay."

Near the dinner hour on June 19, acting upon a telephoned request from Healy's office, Dr. Wasemiller, Gilbert's treating physician, saw Gilbert at the nursing home to assess his testamentary capacity. Following this visit, Dr. Wasemiller dictated a letter to Healy that was received by Healy after Gilbert's death. Dr. Wasemiller wrote that he found Gilbert "well oriented to time, place, and circumstances. He conversed coherently and rationally. It is my impression that the patient is mentally competent in a testamentary capacity."

After Dean read the dispositive clauses of the will to Gilbert who indicated his approval, Dean called Healy who was dining with his wife at a local restaurant in Wahpeton. Healy and his wife, Donna, went to the nursing home after dinner and met privately with Gilbert to help him complete the documents. Healy recognized Gilbert, although Donna had not met him before. Because Dean had essentially read the will to Gilbert, Healy testified that he did not review the will further with Gilbert before it was signed.

Healy asked Gilbert if he wished to sign the will. Gilbert nodded his head to confirm his desire to do so. Gilbert appeared "alert," "attentive," "focused," and "ready" to sign the will, according to Healy, although both Healy and Donna said that Gilbert spoke very little while they were in his room. Both Healys testified that Gilbert was uncomfortable, and that he needed an interruption for nursing attention while they were there. Propped on an elbow, Gilbert shakily signed the will and the power of attorney, Healys witnessed and notarized the documents, and left with the completed documents. During the next day, Gilbert was returned to the hospital. Early on June 21, 1989, Gilbert died of congestive heart failure.

Gilbert's will appoints Dean as personal representative and divides Gilbert's property among four of his nieces and nephews, including Dean, who are children of a deceased brother and of his surviving brother, Peter Ostby. The will leaves nothing to Gilbert's surviving sister, Sena Bisek. According to Glen and Dean, Gilbert told them that he'd given Sena money for her needs and that her daughter was adopted so that her descendants were not "of his family." If the will is invalidated, Peter Ostby and Sena Bisek receive the majority of the estate by intestate succession, while Dean, as Peter's son, will receive nothing. See NDCC 30.1-04-03 (UPC 2-103). When the will was filed for informal probate, Sena Bisek objected to it, alleging lack of testamentary capacity and undue influence by Dean Ostby.

After trial, the trial court ruled that the will "is not in fact the last will and testament of Gilbert Ostby" because Gilbert "did not know what he was signing" and "did not know the contents," and because the will was "a result of undue influence of Dean." Soon after the judgment, the trial judge, Honorable Bayard Lewis, retired. Dean moved to amend the findings, to vacate the judgment, and for entry of a judgment admitting the will to probate. Dean's post-trial motions were denied by the successor judge, Honorable Hal Stutsman. Dean Ostby appeals.

If a trial judge is unable to act on post-trial motions because of death, disability or other cause, a successor judge may act. NDRCivP 63. Still, the power of a successor judge to review evidence of disputed facts is circumscribed. Paulson v. Meinke, 352 N.W.2d 191 (N.D.1984). If the successor judge "is not satisfied with the findings, conclusions and decree of his predecessor, and thinks [they] should be vacated or modified, but cannot do so because he did not see and hear the witnesses, then he is limited to the granting of a new trial." Paulson at 193, quoting an Idaho decision. In this case, the successor trial judge denied the post-trial motions.

On appeal, we review the findings of the trial court, not the reasoning of the successor judge. NDRCivP 52(a). We set aside findings of fact only when they are clearly erroneous. National Bank v. International Harvester Co., 421 N.W.2d 799 (N.D.1988). As NDRCivP 52(a) directs, we defer to the opportunity of the trial court to judge the credibility of witnesses. Still, findings induced by an erroneous view of the applicable law are clearly erroneous. Hom v. State, 459 N.W.2d 823 (N.D.1990). In this case, we conclude that the trial court made its findings with an erroneous view of the law of testamentary intent and of undue influence.

Dean argues that the trial court did not apply the correct law, that the evidence did not disprove testamentary intent, and that the trial court made erroneous findings of undue influence. We agree.

Sena argues that the trial court's finding, that Gilbert "did not know" the document was a will, suffices because the trial court "recited many significant portions of the evidence," including particularly this one:

[F]rom the twelve short lines on the [cardboard], a six page legal document was drawn which contained language which would be difficult for a layman to understand, much less to explain to another layman.

Sena argues that "[t]here is insufficient evidence that [Gilbert] knew what was in the documents he signed on June 19," because "lack of communication between attorney and client, Gilbert's dire medical condition, and the incomplete and hasty review of the will all combine to rebut any presumption of due execution." However, we conclude that the trial court's findings, based upon an erroneous view of the law, are clearly erroneous.

A proponent of a will must only prove its due execution to show testamentary intent. NDCC 30.1-15-07 (UPC3-407). A contestant of a will must prove lack of testamentary intent, lack of testamentary capacity, undue influence, or any other frailty in a duly executed will. Id. If a will is self-proved, compliance with signature requirements is conclusively presumed, and other requirements of execution are presumed, subject to rebuttal, unless the acknowledgement is forged or fraudulent. NDCC 30.1-15-06. Thus, upon proof of due execution, testamentary intent is presumed, placing the burden to disprove it upon the contestant. In re Papineau, 396 N.W.2d 735 (N.D.1986). In this case, Sena, as the contestant, had the burden of proof.

Knowledge of the contents of a document executed as a will is a matter of testamentary intent. 79 Am.Jur.2d Wills Sec. 19 (1975); 1 Bowe-Parker: Page on Wills, Sec. 5.8 (3d ed. 1960). North Dakota law thus places the burden of proving a lack of testamentary intent, or the lack of knowledge of the contents of a duly executed will, on the contestant. The trial court's findings show a lack of awareness of that burden on the contestant here.

The trial court made no finding that Gilbert lacked testamentary capacity. And, it is difficult to imagine how testamentary capacity could be lacking in this case. While Gilbert was physically weak and uncomfortable,...