Paulson v. Risovi

• Citation: 2012 ND 40,812 N.W.2d 476
• Decision Date: 26 March 2012
• Docket Number: No. 20110154.,20110154.
• Parties: In the Matter of the ESTATE OF Lee S. PAULSON, Deceased Carmen Paulson, Michael Paulson, Kim Paulson, Charlene (Paulson) Johnson, and Lynn Paulson, Appellants, v. Robyn Risovi, Appellee
• Court: United States State Supreme Court of North Dakota

812 N.W.2d 476

2012 ND 40

In the Matter of the ESTATE OF Lee S. PAULSON, DeceasedCarmen Paulson, Michael Paulson, Kim Paulson, Charlene (Paulson) Johnson, and Lynn Paulson, Appellants,

v.Robyn Risovi, Appellee

No. 20110154.

Supreme Court of North Dakota.

Feb. 21, 2012.

Rehearing Denied March 26, 2012.

David S. Maring, Bismarck, ND, for appellants.

Sara K. Sorenson, West Fargo, ND, for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Lee Paulson's mother and siblings (“the Paulson family”) appealed from district court orders interpreting the will of Lee Paulson in favor of his fiancee, Robyn Risovi, denying a motion for reconsideration, and ordering distribution of Lee Paulson's estate. We affirm.

I.

[¶ 2] Lee Paulson and Risovi were engaged to be married, with a wedding set for July 18, 2009. On June 26, 2009, Lee Paulson and Risovi executed an antenuptial agreement. The antenuptial agreement contained several terms: an agreement by Lee Paulson to name Risovi as the beneficiary of his life insurance policy, an agreement by Lee Paulson that his will would transfer specific real property to Risovi, and an agreement by Lee Paulson to establish a testamentary trust for the benefit of Risovi's daughter. On the same date, Lee Paulson executed a will. The will established the trust for Risovi's daughter, devised real property to “my wife, Robyn,” bequeathed all of Lee Paulson's tangible personal property to “my spouse, Robyn,” if she survived him, and devised his residuary estate to “my spouse, if my spouse survives me [.]” Article Six of the will outlined the definitions governing the will, and provided, “My spouse's name is Robyn Risovi and all references in this Will to ‘my spouse’ are to her only.” A footnote followed this statement: “This Will has been prepared in anticipation of the upcoming marriage of ... Lee Paulson and Robyn Risovi set for July 18, 2009.” Lee Paulson died on July 15, 2009, three days before the scheduled wedding.

[¶ 3] Risovi filed a petition for construction of Lee Paulson's will, and the Paulson family also filed a petition for construction of the will. The district court held a hearing on the petitions and found Lee Paulson's will was unambiguous, Risovi was an unconditional devisee of the will, and she was entitled to take under the will. The district court found the definition and footnote in Article Six of the will did not manifest an intent to have the will conditioned upon the marriage, but described the beneficiaries and the circumstances surrounding the drafting of the will. The district court declined to read the antenuptial agreement together with the will to determine Lee Paulson's testamentary intent, as encouraged by the Paulson family, because the antenuptial agreement was not incorporated into the will by reference. The Paulson family appealed, and the appeal was remanded to determine if the estate was supervised. The district court entered an order for supervision, and this Court dismissed the Paulson family's appeal without prejudice. The Paulson family moved for reconsideration, which was denied. The district court entered orders distributing the estate according to Lee Paulson's will and the court's previous order and staying distribution pending the current appeal.

II.

[¶ 4] “We decide for ourselves the construction of an unambiguous will.” Estate of Zimbleman, 539 N.W.2d 67, 70 (N.D.1995). Our purpose in construing a will is to determine the testator's intent “from a complete consideration of the will given the surrounding circumstances.” Id. at 71. The testator's intent as expressed in the will controls the legal effect of the testator's dispositions. N.D.C.C. § 30.1–09–03. If the will's language is clear and unambiguous, the testator's intent is ascertained from the language of the will and not from extrinsic evidence. Estate of Neshem, 1998 ND 57, ¶ 7, 574 N.W.2d 883. Whether a will contains an ambiguity is a question of law for the court to decide. Id. at ¶ 8. Questions of law are fully reviewable on appeal. Bladow v. Bladow, 2005 ND 142, ¶ 9, 701 N.W.2d 903.

A.

[¶ 5] The Paulson family argues the district court erred by interpreting Lee Paulson's will in favor of Risovi because the will and antenuptial agreement unambiguously establish the devises to Risovi were contingent upon her marriage to Lee Paulson.

[¶ 6] If the language of a will is clear and unambiguous, the testator's intent must be determined from the four corners of the will itself. Neshem, 1998 ND 57, ¶ 7, 574 N.W.2d 883. “Whether an ambiguity exists in a will is a question of law for this court to decide.” Zimbleman, 539 N.W.2d at 71. A will provision is ambiguous if it can reasonably be interpreted in more than one sense. Estate of Brown, 1997 ND 11, ¶ 15, 559 N.W.2d 818. If a will is ambiguous, extrinsic evidence may be admitted to help clarify the ambiguity. Id.

[¶ 7] Article Six of the will states, in part, “My spouse's name is Robyn Risovi and all references in this Will to ‘my spouse’ are to her only.” A footnote to this definition states, “This Will has been prepared in anticipation of the upcoming marriage of ... Lee Paulson and Robyn Risovi set for July 18, 2009.” The Paulson family argues this footnote shows Lee Paulson intended the devises to Risovi to be conditioned upon the marriage, and the devises to Risovi must fail because the marriage never occurred. Risovi responds this language is descriptive, not conditional, and establishes Lee Paulson intended the will to be effective before and after the marriage.

[¶ 8] “An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or be defeated.” Ruud v. Frandson, 2005 ND 174, ¶ 7, 704 N.W.2d 852 (quoting Blevins v. Pittman, 189 Ga. 789, 7 S.E.2d 662, 664 (1940)). A condition precedent must occur before an interest can vest, and if the condition does not occur, the conditional devise is inoperative. Zimbleman, 539 N.W.2d at 71. Conditions in a will are disfavored, and courts ordinarily decline to imply conditions in a will unless specific words manifest an intent to impose conditions. 97 C.J.S. Wills §§ 1554–55 (2011). Words associated with creating a condition precedent include “on condition,” “so that,” “provided,” and other similar language. Id. at § 1554.

[¶ 9] We have previously considered what constitutes a condition precedent in a will. In Zimbleman, the testatrix's will provided any of her children who wanted the land she owned at her death could purchase the land “upon the agreement of the remaining children[.]” Zimbleman, 539 N.W.2d at 69–70. This Court held the provision created a condition precedent because all of the testatrix's children had to agree to a sale before a child could purchase the land. Id. at 71. Because an agreement could not be reached among the children, the devise or the right to purchase the land failed. Id. Unlike Zimbleman, there is no language in Lee Paulson's will to create a condition precedent. The Paulson family focuses on the Article Six footnote, which states the will was “prepared in anticipation of the upcoming marriage of ... Lee Paulson and Robyn Risovi[.]” The footnote does not use language to indicate the devises were conditional, such as “on condition,” “provided,” or “if.” Such language could have been included if Lee Paulson intended the devises to Risovi to be contingent upon their marriage. “[N]o presumptions are indulged by law to create conditions precedent in a will.” 97 C.J.S. Wills § 1577.

[¶ 10] Rather, the footnote evidences Lee Paulson's intent that the will be operative both before and after the marriage. Section 30.1–06–01(1)(b), N.D.C.C., provides that a surviving spouse who married the testator after the testator executed the will is only entitled to an intestate share of the estate unless “[t]he will expresses the intention that it is to be effective notwithstanding any subsequent marriage[.]” Lee Paulson ensured his will would be effective after his marriage to Risovi by including the phrase “in anticipation of the upcoming marriage[.]” Other courts have also reached this conclusion when interpreting similar will provisions. See Brown v. Cronic, 266 Ga. 779, 470 S.E.2d 682, 684 (1996) (holding devises to the testator's “wife to be” were not contingent upon the marriage but rather “evidenced that [the testator's] will was made in contemplation of his marriage”); In re Nichols' Estate, 428 So.2d 372, 372–73 (Fla.Ct.App.1983) (holding a will made “in contemplation of [a] marriage” did not create a contingency, “but only refers to the fact that the will was intended to be valid even after, or notwithstanding, the occurrence of the intended, or expected future event”).

[¶ 11] The Article Six definition of “spouse” and references to Risovi as “my wife” and “my spouse” are descriptive terms and do not create a condition precedent. In Neshem, this Court held a devise was not void simply because the devisee did not fit the description in the will. Neshem, 1998 ND 57, ¶ 9, 574 N.W.2d 883.The testatrix referred to her stepson as her “son” in the will provision describing her family. Id. at ¶ 3. We held the testatrix's description of her stepson as her “son,” when reading the will to give meaning to each word and phrase, manifested her intent to treat him as her natural son under the will. Id. at ¶ 9. We noted the testatrix's specific description should not be ignored simply because the will could have been worded differently. Id. Other courts have held similar descriptive words do not create a condition limiting the devise or bequest. See Barnstable v. United States Nat'l Bank, 232 Or. 36, 374 P.2d 386, 388 (1962) (“When the testator describes a relationship he knows did not exist ... but identifies the object of his bounty by name, he will be deemed to have made his benefaction with a knowledge of the nonexistence of the relationship described.”); In re Sussman's Will, 60 N.Y.S.2d...