Estate of Clemetson v. Evanson

812 N.W.2d 388

2012 ND 28

In the Matter of the ESTATE OF Harriet O. CLEMETSON, deceasedPhilip Sprague, Petitioner and Appellant,

v.Kenneth Evanson, Personal Representative, Respondent and Appellee.

No. 20110108.

Supreme Court of North Dakota.

Feb. 17, 2012.

Sara Kaye Sorenson, West Fargo, N.D., for petitioner and appellant.

Craig Mark Richie, Fargo, N.D., for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Philip Sprague appeals from an order denying his petition for formal probate of a will allegedly executed by Harriet O. Clemetson. Because we conclude the district court correctly applied the law on the presumption that a missing will is revoked, and because the court's findings of fact are not clearly erroneous, we affirm the order.

I

[¶ 2] Harriet and Earl Clemetson were married for approximately 45 years and lived in Grand Forks County. The couple had no children together, but each had a child from a previous relationship. Harriet Clemetson's son, Ritchie Evanson, died in 2003 and left four biological and two adopted children: Lauri Bartlett, Shawn Evanson, Stephen Evanson, Kenneth Evanson, Dawn Chaffee and Ross Evanson. Earl Clemetson's daughter, Carolyn Sprague, is married to Kevin Sprague and they have three children: Philip Sprague, Kevin Joseph Sprague II and Jennifer Sprague.

[¶ 3] In 1995, Harriet and Earl Clemetson met with a Grand Forks attorney, now deceased, for the purpose of preparing wills. After Earl Clemetson died on January 18, 2009, his estate was probated in accordance with his will dated October 9, 1995. Earl Clemetson devised a quarter section of land to Carolyn Sprague and devised his personal property, vehicles, farm machinery, equipment, crops, and bank and savings accounts to Harriet Clemetson. The will directed that if Harriet Clemetson did not survive Earl Clemetson, the property would be awarded to Carolyn Sprague. The remainder of the estate was devised to Carolyn Sprague, subject to a life estate in Harriet Clemetson. The remainder included another quarter section of land, less the five-acre farmstead. The farmstead was devised to Harriet Clemetson to be sold at a price she determined, with the sale proceeds kept by her. Under the will, if Carolyn Sprague did not survive him, Earl Clemetson devised the property to her three children. Earl Clemetson did not devise any property to Harriet Clemetson's six grandchildren.

[¶ 4] After Earl Clemetson died, Harriet Clemetson revoked a power of attorney Harriet Clemetson had given to Carolyn Sprague and also removed her as the contingent beneficiary on an investment account she received from Earl Clemetson after his death. On August 1, 2009, Carolyn Sprague purchased Harriet Clemetson's interest in her life estate through a family distribution agreement under which the farmstead would be sold and Harriet Clemetson would move elsewhere. Harriet Clemetson became very distraught at the subsequent auction sale where most of her belongings were sold.

[¶ 5] On October 2, 2009, Harriet Clemetson died from injuries suffered in a car accident. Her grandson, Kenneth Evanson, applied for appointment as personal representative and stated in the application that “after the exercise of reasonable diligence, [he] is unaware of any unrevoked testamentary instrument relating to the property having a situs in this state.” Evanson listed Harriet Clemetson's six grandchildren as her surviving heirs entitled to her estate under the laws of intestate succession. After Kenneth Evanson was appointed personal representative, Harriet Clemetson's step-grandson and Carolyn Sprague's son, Philip Sprague, filed a petition for formal probate of a will and asserted Harriet Clemetson had executed an unrevoked will that should be probated. Philip Sprague presented an undated and unsigned document purported to be a copy of Harriet Clemetson's will in which all nine of her grandchildren and step-grandchildren were named as devisees. Kenneth Evanson objected to probate of the alleged will and asserted that the will was not duly executed and that because he could not find the original will, it was revoked under the presumption that a missing will has been revoked.

[¶ 6] Following a trial, the district court determined Harriet Clemetson's will was duly executed but could not be found after her death. The court further found Sprague had failed to rebut the presumption that a missing will is revoked. The court concluded Harriet Clemetson's surviving heirs under the laws of intestate succession are her six grandchildren and denied Philip Sprague's petition.

II

[¶ 7] The parties challenge various facets of the district court's decision.

[¶ 8] “Proponents of a will have the burden of establishing prima facie proof of due execution in all cases.” N.D.C.C. § 30.1–15–07 (U.P.C. § 3–407); see also Estate of Papineau, 396 N.W.2d 735, 739 (N.D.1986); Estate of Honerud, 294 N.W.2d 619, 621 (N.D.1980). A prima facie case is established “[i]f the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor.” Helbling v. Helbling, 541 N.W.2d 443, 445 (N.D.1995). A prima facie case “is a bare minimum.” Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622. Whether a prima facie case has been established is a question of law. See O'Neill v. O'Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855;Quarne v. Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256.

[¶ 9] In Estate of Conley, 2008 ND 148, ¶ 20, 753 N.W.2d 384, we discussed the presumption of animo revocandi, “which presumes a missing will has been intentionally destroyed and thus revoked by the testator.”

The animo revocandi presumption is founded upon the observation that

[p]ersons in general keep their wills in places of safety, or, as we here technically express it, among their papers of moment and concern. They are instruments in their nature revocable: testamentary intention is ambulatory till death; and if the instrument be not found in the repositories of the test [at]or, where he had placed it, the common sense of the matter, prima facie, is that he himself destroyed it, meaning to revoke it....

Matter of Hartman's Estate, 172 Mont. 225, 563 P.2d 569, 571 (Mont.1977) (citations and internal quotations omitted). The presumption intends to protect the testator's right to “change [his will] at pleasure” and recognizes “that wills are almost always destroyed secretly.” Tipton's Estate, 173 Neb. 520, 113 N.W.2d 644, 647 (Neb.1962). Consequently, when a will cannot be found upon the death of the testator, the presumption arises that the testator secretly chose to revoke the missing will. Id. The fact that a conformed copy of the missing will is in the office of the attorney who drafted it does not alter the rationale for the presumption.

Id. at ¶ 21.

[¶ 10] “Before a presumption arises, the party seeking to rely upon it must prove the requisite foundational facts by credible evidence.” Land Office Co. v. Clapp–Thomssen Co., 442 N.W.2d 401, 406 (N.D.1989); see alsoN.D.R.Ev. 301; Eddy v. Lee, 312 N.W.2d 326, 330 (N.D.1981) (“the party wishing to rely upon a presumption created by law must introduce credible evidence to establish the presumption before it will be effective”). Once the presumption arises, “the party petitioning for the probate of a missing will must demonstrate, by a preponderanceof the evidence, that the will existed at the time of the testator's death, that the will was fraudulently destroyed in the lifetime of the testator, or by other evidence demonstrating the testator did not intend to revoke the missing will.” Conley, 2008 ND 148, ¶ 29, 753 N.W.2d 384.

[¶ 11] Whether a presumption arises, and whether a presumption has been rebutted, are questions of fact governed by the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). See Estate of Howser, 2002 ND 33, ¶ 7, 639 N.W.2d 485 (whether presumption rebutted); Durward v. Nelson, 481 N.W.2d 586, 589 (N.D.1992) (whether presumption applicable). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Carlson v. Carlson, 2011 ND 168, ¶ 15, 802 N.W.2d 436. Under N.D.R.Civ.P. 52(a), we do not re-weigh conflicting evidence and we give due regard to the district court's opportunity to judge the credibility of the witnesses. In re K.B., 2011 ND 152, ¶ 8, 801 N.W.2d 416. A district court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the district court. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144.

[¶ 12] In this case, the district court determined that Harriet Clemetson's will had been duly executed, that the will could not be found upon her death, and that Sprague had failed to demonstrate by a preponderance of the evidence that the will existed at the time of her death, that someone other than Harriet Clemetson fraudulently destroyed the will during her lifetime, or that Harriet Clemetson did not intend to revoke her will. These rulings are challenged on appeal.

A

[¶ 13] Kenneth Evanson argues the district court erred in determining that Harriet Clemetson's will, which was undated and unsigned, had been duly executed. Although Kenneth Evanson did not file a cross-appeal, an appellee is entitled on appeal to attempt to save a judgment by urging any ground asserted in the district court. See Kalvoda v. Bismarck Pub. Sch. Dist. # 1, 2011 ND 32, ¶ 14, 794 N.W.2d 454.

[¶ 14] To be “duly executed,” a will must comply with the statutory requirements for execution. Estate of Wagner, 551 N.W.2d 292, 295 (N.D.1996). The requirements for execution are found in N.D.C.C. § 30.1–08–02 (U.P.C. § 2–502), which provides:

1. Except as provided in subsection 2 and in sections 30.1–08–06 and 30....