In re Estate of Dion

• Decision Date: 20 March 2001
• Docket Number: No. 20000178.,20000178.
• Citation: 2001 ND 53,623 N.W.2d 720
• Parties: In the Matter of the ESTATE OF Leo H. DION. Viola Bartusch, Petitioner and Appellant, v. Kenneth Hager, Personal Representative of the Estate of Leo H. Dion, Respondent and Appellee, Carnegie Library and Devils Lake Area Foundation, Appellee.
• Court: North Dakota Supreme Court

623 N.W.2d 720

2001 ND 53

In the Matter of the ESTATE OF Leo H. DION.

Viola Bartusch, Petitioner and Appellant, v. Kenneth Hager, Personal Representative of the Estate of Leo H. Dion, Respondent and Appellee, Carnegie Library and Devils Lake Area Foundation, Appellee.

No. 20000178.

Supreme Court of North Dakota.

March 20, 2001.

Viola Bartusch, Elk River, MN, pro se.

Peter K. Halbach, Haugland, Halbach and Halbach, Devils Lake, ND, for respondent and appellee.

J. Thomas Traynor, Jr. (appeared), Traynor, Rutten & Traynor, P.C., Devils Lake, ND, for appellee.

KAPSNER, Justice.

[¶ 1] Viola Bartusch appealed from a judgment and numerous other court orders involving the estate of her late brother, Leo H. Dion. We conclude the trial court did not err in denying her motion for change of venue or in its rulings during and after trial, and did not err in upholding the validity of Dion's June 1998 will. We affirm.

I

[¶ 2] Leo Dion was born February 1, 1917, near Lakota. Dion had 12 siblings and moved away from home when he was 13 years old. In 1942, Dion married Frances, a school teacher 19 years his senior who had graduated from Mayville State College. After serving and being wounded in World War II, Dion attended the North Dakota State College of Science at Wahpeton.

[¶ 3] Frances taught school for 52 years in North Dakota, Illinois and Minnesota, while Dion worked at various odd jobs. When the couple moved to Alexandria, Minnesota, Leo worked at the Post Office. The couple had no children of their own and lived frugally. The couple accumulated a substantial amount of money during their lifetimes. [¶ 4] Viola Bartusch is Dion's younger sister. When Frances became ill in 1986, Bartusch stayed with Dion and helped him care for Frances. Frances died on May 16, 1986, and Dion was distraught. That same day, Bartusch went to an attorney's office with Dion where he had a will prepared. Bartusch understood she would receive a part of Dion's estate and she would be the personal representative. After Frances died and Dion's health began to deteriorate, Bartusch stayed with Dion in Alexandria for periods of time to assist him. Bartusch organized Dion's financial papers and knew he had a substantial amount of money. In 1985, Bartusch began keeping a journal, listing the things she did for Dion.

[¶ 5] In 1997, Dion moved to Devils Lake to be closer to where Frances was buried. Dion initially moved into Lake Country Manor, a nursing home, but he became irritable and depressed and decided to move from the nursing home to an apartment at Heartland Court in August 1997. Dion was physically incapacitated, and Patsy Hood was one of several caregivers who worked with Dion, giving him 24-hour care at his apartment. Hood eventually opened a joint bank account with Dion, and in November 1997, Dion signed a power of attorney appointing Hood as his attorney in fact.

[¶ 6] Dion visited several times with one of his nieces and told her he had been thinking about what Frances might have wanted him to do with their money. Dion mentioned his college in Wahpeton and Frances' college in Mayville. Dion thought education was important, and mentioned as possibilities "something to do with Lake Region, or Devils Lake area." Dion also mentioned he wanted to leave something for the young girls who used to live next door to him in Alexandria. Hood contacted attorney Melvin Christianson for Dion, and Dion began discussing his estate plans with Christianson.

[¶ 7] Dion's relationship with Bartusch had begun to sour. He would get upset with his sister because, according to a friend from Alexandria, "[h]e felt that she was controlling and bossy ...." Dion did not mention his family while discussing estate planning because he believed they were "taking advantage of him." For Christmas 1997, Dion received a card and letter from Bartusch which included a list charging Dion for food, gas and labor at $50 per day for periods of 1996 and 1997. The list totaled more than $8,800, with credit given for money earlier paid to Bartusch. Bartusch wrote Dion, "I sure Hope & Pray You Find it in ... Your Heart that I Receive some of my List Before the Season is out." (Emphasis in original.) Bartusch signed the letter, "In God we Trust." When Dion saw Bartusch again, he told her, "I can't understand how a sister could do this to me." He told her to leave because she caused him stress.

[¶ 8] Dion had a total of 13 meetings with Christianson in December 1997 and January 1998 to discuss estate planning and prepare a will. Dion showed little interest in leaving money to his family, but wanted to leave money to the schools he and his wife had attended. He also wanted to leave something for his former neighbors' children. He also became interested in leaving money to the Carnegie Library after discussing the subject with his dentist, who served as the library board president. Dion met with the library board and with members of the North Dakota State College of Sciences Foundation to discuss endowments.

[¶ 9] Dion became severely ill in January 1998 and was taken to a hospital in Grand Forks. Christianson prepared a will and Dion signed it on January 29, 1998, while he was hospitalized. According to Christianson, Dion verbally confirmed the devises and discovered Bartusch's first name, Viola, had been misspelled as "Violet." The misspelling was corrected by drawing a line through it and entering the correct spelling above it; Dion initialed the change. The January 1998 will included devises of $50,000 to Dion's brother, Everett Dion; $10,000 to Everett Dion's granddaughter; $1,000 to another brother, Luke Dion; $1,000 to Bartusch; $300,000 to the Carnegie Library; $65,000 to the Mayville State University Alumni Foundation; $90,000 to the North Dakota State College of Sciences Foundation; $30,000 in trust to the three children of his former neighbors in Alexandria; $140,000 to Colleen Quinn, a friend from Alexandria; and $100,000 to Hood. Small devises were also given to others and the residue of the estate was devised to the Devils Lake Area Foundation in accordance with an endowment agreement. Dion nominated Hood to be personal representative of his estate.

[¶ 10] After visiting with Dion when he returned to his apartment from the hospital, Bartusch hired an attorney and filed a petition for appointment of a guardian and conservator for Dion. Bartusch was appointed temporary guardian on March 2, 1998, pending the formal guardianship and conservatorship hearing. Fearing Hood was stealing money from Dion, Bartusch proceeded to transfer all of the money out of Hood and Dion's joint account. Dion retained attorney Michael N. Steffan, who was later appointed to be Dion's guardian ad litem. Dion instructed Steffan to obtain money Hood had deposited by check into her personal account. The court ordered the bank to place the $25,088.47 in an interest-bearing account in Dion's name. Hood consented to the transfer of funds. When questions arose over Bartusch's handling of Dion's funds, Bartusch stipulated to have Ken Hager, the Ramsey County public administrator, serve as Dion's temporary guardian and conservator, and an order of substitution was entered on March 13, 1998. Before the guardianship hearing, Dion prepared a handwritten note addressed "To whom it may concern: I do not want my sister Vi to have control of my money."

[¶ 11] The guardianship hearing was held by District Court Judge Lee A. Christofferson on March 19, 1998, at Dion's apartment. By then, according to Bartusch's notes, Dion's condition had improved dramatically. Judge Christofferson found "no basis for a guardianship." According to the judge, "there was nothing wrong with his mental capacity. He was alert, he was tracking, he was basically keen as to what was going on." The judge, however, ordered a limited conservatorship. The judge explained, because Dion's "mind was keen and it appeared he had accumulated significant assets by his own decisions, I left those with him. What he really needed was someone to physically go and do things, or sort of make sure those assets were not wasted."

[¶ 12] Because of all the people suddenly involved in Dion's life, and Dion's perceived vulnerability, the judge suggested a new will should be prepared. The judge said, "I wanted him to get away to another attorney to just talk about what he really wanted to do with his estate, and then memorialize that in a new will." At the guardianship hearing, the judge explained, "I wasn't suggesting that it be a different Will. That's up to him but a new one in the sense that it was done at a different location after discussion with an independent attorney." The court noted, "If Leo refuses to cooperate so be it." One of the provisions in the formal court order appointing Hager as limited conservator stated:

8. Mr. Dion shall redraft any recently executed last will and testament and his guardian ad litem is instructed to assist Mr. Dion in locating a suitable attorney unrelated to these proceedings to accomplish the redrafting of a last will and testament, and for the guardian ad litem to assist Mr. Dion and such chosen counsel in obtaining necessary services to establish his competency by means of a suitable examination, video taping of proceedings, or other like measures which may assist Mr. Dion's execution of a further last will and testament.

[¶ 13] According to Steffan, Dion did not think he was required to redraft the will because the court found he was competent, and he indicated to Steffan he was not going to redraft the will because he did not want to incur needless expenses. Dion later changed his mind and told Steffan he was thinking of redrafting his will. Steffan suggested having another attorney, Michael Klemetsrud, participate in the process to comply with the court's order and satisfy Dion. According to Steffan, Dion consented to Klemetsrud's involvement and "it was Leo's choice as to what involvement ...