Justia Trusts & Estates Opinion SummariesArticles Posted in North Dakota Supreme Court
Estate of Blikre
Sharron and Jennifer Jensen appealed district court orders: (1) admitting a copy of Jacquelynn Blikre’s will to formal probate; (2) ruling Blikre’s will was valid; and (3) denying a petition for formal probate of Blikre’s alleged holographic will. Blikre executed a will in 2005 leaving her estate, including real property and minerals, to her sister, Sandra Nordahl, and named Nordahl personal representative of the estate. Blikre’s other sister, Sharron, was excluded from the will. In April 2016, Blikre was hospitalized after suffering from several health issues. In May 2016, she was moved to a Bismarck nursing home and resided there until her death in September 2016. While she was hospitalized, Blikre appointed Sharron as Blikre’s attorney-in-fact for financial matters. Blikre had also appointed Sandra's husband, Jean Nordahl, as Blikre’s attorney-in-fact under a durable power of attorney in March 2016. After Blikre’s death, Sandra petitioned for formal probate of Blikre’s will, attaching a copy the petition because the original will was missing. Jensen objected to Nordahl’s petition, claiming Blikre’s will should have been considered revoked because the original was missing. The district court appointed Nordahl personal representative subject to a decision on whether the copy of Blikre’s will would be admitted to probate. Sandra died after her appointment as personal representative. Jean petitioned for appointment as successor personal representative. Sharron also petitioned for appointment. At an October 2017 hearing, the parties presented evidence on the existence of Blikre’s will and whether she intended to revoke it before her death. In February 2018, the district court entered an order finding sufficient evidence existed to rebut the presumption that Blikre intended to revoke her will. The court ordered formal probate of the copy of the will and appointed Jean as personal representative. In April 2018, Sharron appealed the district court’s order, and Jennifer petitioned for formal probate of a holographic will and to vacate the February 2018 order admitting the copy of Blikre’s will to probate. Jennifer's petition alleged Blikre wrote instructions in 2016 relating to her estate. Jensen claimed the handwritten documents were a holographic will that revoked the 2005 will and distributed Blikre’s estate to her sisters and nieces. In December 2018, Jennifer and Sharron moved for partial summary judgment. After an evidentiary hearing, the district court dismissed Jensen’s petition, finding Blikre’s handwritten documents did not express her testamentary intent to distribute her estate and did not revoke her 2005 will. The court also found Blikre’s 2005 will was valid because credible evidence showed the will was executed in front of two witnesses. Finding no reversible error in the district court's judgment, the North Dakota Supreme Court affirmed. View "Estate of Blikre" on Justia Law
Herman v. Herman, et al.
Paul Herman appealed a judgment entered in favor of the trustees of a family trust [collectively the Trustees] following the district court’s granting of the Trust’s motion for summary judgment. Herman argued the district court erred by finding the 120 day period to challenge the actions of the Trustees expired before he initiated these proceedings without providing him an opportunity to conduct discovery. After review, the North Dakota Supreme Court concluded the 120 day limitation period under N.D.C.C. 59-10.1-03(1) did not begin until receipt of the notice of the Trustees actions, reversed the judgment of the district court, and remanded with instructions to allow Herman additional time to conduct discovery pursuant to his request under N.D.R.Civ.P. 56(f). View "Herman v. Herman, et al." on Justia Law
Estate of Hall
Brianna McLaen appealed an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argued the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty deed for certain real property was void. The North Dakota Supreme Court concluded a surviving spouse may claim an elective share of an intestate estate under N.D.C.C. 30.1-05-01, but the court erred in determining ownership of the real property. The matter was reversed and remanded for further proceedings. View "Estate of Hall" on Justia Law
Johnston Land Company, LLC v. Sorenson, et al.
Johnston Land Company, LLC appealed dismissal of its claims against attorney Sara Sorenson and the law firm Ohnstad Twichell, P.C., and appealed the court’s decision with regard to Johnston paying their costs and attorney fees in the amount of $27,386.23. In March 2015 Sorenson, who represented beneficiaries of an estate, recorded an affidavit in Grand Forks County, North Dakota pertaining to the probate case stating certain property may be subject to future legal proceedings. In August 2017, Johnston filed a petition claiming Sorenson’s affidavit was a nonconsensual common law lien under N.D.C.C. ch. 35-35 and sought damages. In September 2017, shortly before the district court rendered its decision denying the petition, Sorenson filed a notice of lis pendens on the property on behalf of the beneficiaries in another action seeking to levy execution on the property. The district court concluded Sorenson’s March 2015 affidavit did not constitute a nonconsensual common law lien, and the North Dakota Supreme Court affirmed in part. However, the Supreme Court reversed in part and remanded, finding when Sorenson filed the affidavit in 2015, there was no action affecting title to the property. After remand, Sorenson recorded a second affidavit, which referenced her March 2015 affidavit, the September 2017 notice of lis pendens, and stated “[t]he Notice of Lis Pendens supersedes the Affidavit.” Sorenson and the law firm then moved for summary judgment dismissing items “c” through “g” in Johnston’s petition and, for the first time, requested an award of attorney fees. The district court granted the motion for summary judgment. The court concluded items “c” through “g” were rendered moot by either its previous decision that Sorenson’s first affidavit was not a nonconsensual common law lien or Sorenson’s filing of the second affidavit and the notice of lis pendens. The court also ruled summary judgment was appropriate because Johnston failed to produce any evidence or legal theory to support recovery under items “c” through “g.” Relying on its earlier ruling that Sorenson’s first affidavit was not a nonconsensual common law lien, the court also awarded Sorenson and the law firm for its costs and attorney fees. The North Dakota Supreme Court concluded the district did not err with respect to the grant of summary judgment, but reversed as to fees, finding request for costs and attorney fees came too late, and the court’s award exceeded the scope of our mandate “to rule on items ‘c’ through ‘g’ in Johnston’s petition.” View "Johnston Land Company, LLC v. Sorenson, et al." on Justia Law
Swenson, et al. v. Mahlum, et al.
Willis Swenson appealed, and Kyle Mahlum cross-appealed dismissal of Swenson’s claims against Mahlum and Mahlum’s claims against Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig (“third-party defendants”). This suit arose over the ownership and leasing of real property in Burke County, North Dakota. Willis Swenson (“Swenson”) and the third-party defendants are the children of Robert and Junietta Swenson. In 2004, Robert and Junietta conveyed the property to their children as joint tenants, reserving a life estate for themselves. In 2005, Robert died and Junietta became the sole life tenant. In 2008, Junietta leased the property to Swenson. Swenson agreed to rental payments of $20,016 per year, due in installments. In December 2009, Swenson leased the property to Mahlum for $31,022.50 per year. The Swenson-Mahlum lease became effective in March 2010 and stated it would expire in October 2019. In November 2011, Swenson signed a new lease with Junietta, beginning in 2012 and ending in 2022. The lease permitted Swenson to assign or sublet the property to any person. In July 2012, Lee Swenson was appointed guardian and conservator for Junietta. In January 2013, Lee Swenson, as guardian and conservator, leased the same property to Mahlum that Willis Swenson already was leasing to Mahlum in the December 2009 lease. The new lease required Mahlum to pay Junietta $31,122.50 each year. Junietta died in November 2013. Mary Vig, as personal representative of Junietta’s estate, informed Mahlum that future rental payments should be split and made to each of Junietta’s children in equal amounts. In January 2017, Willis and his daughter, Dayna Johnson, sued Mahlum for unpaid rent. Swenson alleged Mahlum was required to pay him under the 2009 lease, and Mahlum failed to pay any rent in 2013, 2014, 2015, and 2016. Mahlum answered and filed a third-party complaint, suing the third-party defendants for unjust enrichment. He alleged in 2013 he paid Junietta under the terms of the 2013 lease. He also alleged in 2014, 2015, and 2016 he paid rent to each of Junietta children. Mahlum claimed that the third-party defendants have been unjustly enriched, and that the third-party defendants be ordered to pay Mahlum any amounts the court finds he owed Swenson if Swenson obtained a judgment against him. After review of the circumstances of this case, the North Dakota Supreme Court determined the trial court erred in its findings, and reversed dismissal of Swenson’s breach of contract claim. On remand, the court must decide the amount of damages Swenson was entitled to recover for his breach of contract claim against Mahlum for unpaid rent in 2013, including whether Swenson failed to mitigate those damages. In addition, the court must decide Mahlum’s claims against the third-party defendants. View "Swenson, et al. v. Mahlum, et al." on Justia Law
Posted in: Civil Procedure, Contracts, Landlord - Tenant, North Dakota Supreme Court, Real Estate & Property Law, Trusts & Estates
Estate of Hogen
Susan and Marby Hogen, as purported interested persons, and Rodney Hogen (collectively, appellants), appealed probate court orders settling the estate of Arline Hogen, and discharging Steven Hogen as personal representative of the Estate. Appellants argued, generally, the probate court lacked jurisdiction to enter an order for the complete settlement and distribution of the Estate, and that the court lacked authority or abused its discretion in requiring Rodney Hogen to pay from his share of the Estate all attorney feed by the State after the North Dakota Supreme Court’s remand. Finding the probate court had jurisdiction, and that it was not an abuse of discretion in the fee award, the Supreme Court affirmed. View "Estate of Hogen" on Justia Law
Estate of Bartelson
Jean Valer and Jane Haught appealed a district court order denying their motion for reconsideration of a judgment determining they failed to rebut the presumption they exercised undue influence over their father. As Ralph Bartelson’s health declined, his children agreed that he would live with Valer and that she and Haught would be paid to provide care for him. During this time, Ralph Bartelson executed a power of attorney appointing Valer as his attorney in fact and established a joint checking account, naming both Valer and Haught co-owners with rights of survivorship and allowing them to issue checks from the account. Neil Bartelson ("Neil") and Diane Fischer claimed that Valer and Haught misappropriated money from their father, and they petitioned for appointment of a guardian and conservator for him. In July 2008, the parties stipulated to the appointment of Valer as guardian for Ralph Bartelson and the appointment of Guardian and Protective Services (“GAPS”) as conservator for him. The parties’ stipulation required GAPS to investigate and pursue the claimed misappropriation of money from Ralph Bartelson. Ralph Bartelson died in August 2008. His will was ultimately admitted to formal probate, and GAPS was appointed personal representative of his Estate. GAPS subsequently moved for court approval of requests for payments from the Estate to Valer and Haught. Neil and Fischer objected to their siblings’ requests and reasserted their allegation that Valer and Haught had misappropriated money from their father. The parties agreed to the payments requested by Valer and Haught, conditioned on a resolution of the misappropriation claim. GAPS retained a forensic accountant to review transfers of Ralph Bartelson’s assets to family members, and the accountant determined Valer had received funds in excess of $154,000 and Haught had received funds in excess of $132,000. However, the accountant was not able to ascertain the reasons for many of those transfers, because Valer and Haught failed to provide documentation for the transfers. The North Dakota Supreme Court concluded the trial court did not abuse its discretion in denying Valer and Haught's motion for reconsideration, and affirmed. View "Estate of Bartelson" on Justia Law
Heitkamp v. Kabella
Debra Heitkamp, the personal representative of the Estate of Nick Lyons, appealed a district court judgment in favor of Kevin Kabella following cross-motions for summary judgment, alleging the district court improperly determined the parties’ agreement was invalid because it fell within the limitation on the length of agricultural leases provided by N.D.C.C. 47-16-02. Kabella and Lyons entered into an agreement pertaining to farmland on March 29, 2007. The agreement gave Lyons possession and use of the property “in perpetuity.” In addition to receiving the property in perpetuity, the agreement stated Kabella could sell the property subject to Lyons’ right to purchase the property. Prior to the 2012 farming season, Kabella attempted to lease the property to Kermit Anderson Jr. Lyons refused to vacate the property asserting he was entitled to the use and possession of the property pursuant to his agreement with Kabella. Anderson brought an eviction action to remove Lyons from the property. Kabella was included as a defendant to allow a resolution of any issues regarding the agreement between Kabella and Lyons. In the litigation initiated by Anderson, Anderson and Kabella asserted the March 29, 2007 agreement between Kabella and Lyons was invalid under N.D.C.C. 47-16-02. Lyons passed away in May 2013, and Heitkamp was appointed personal representative of the estate. The estate used the property since that time. In March 2017, Heitkamp on behalf of Lyons' estate. sued for a declaration the agreement was valid in perpetuity. The district court granted summary judgment to Kabella and found the agreement was a lease that fell within the restrictions of N.D.C.C. 47-16-02, and due to the non-occurrence of any of the contingencies contained in the agreement, it expired on its tenth anniversary, March 29, 2017. The court awarded Kabella damages equal to the fair value of the use of the property subsequent to March 29, 2017. The North Dakota Supreme Court concluded "reasonable persons can draw more than one conclusion regarding the nature of the parties’ agreement," and therefore reversed judgment and remanded for a determination of whether this agreement was a lease subject to the limitations of N.D.C.C. 47-16-02, or a grant, option to purchase, or contract for deed outside the limitations of N.D.C.C. 47-16-02. Because the question of whether the limitation within N.D.C.C. 47-16-02 applied to the parties’ agreement remained undetermined, the Supreme Court declined to decide if the agreement was invalid after extending for a period of ten years. View "Heitkamp v. Kabella" on Justia Law
Posted in: Civil Procedure, Contracts, Landlord - Tenant, North Dakota Supreme Court, Real Estate & Property Law, Trusts & Estates
Estate of Brandt
Thomas Biel and Marilyn Knudson appealed after the probate court approved a final accounting and distribution in the supervised administration of the Estate of Ann Biel Brandt. Biel and Knudson claimed the probate court: (1) erred in allowing Kathleen Bouchard to participate in the supervised probate administration as both the personal representative of the Estate and as an interested person; (2) erred in assuming jurisdiction over a separate civil action and deciding the merits of that action; (3) erred in determining the final distribution was consistent with Ann Biel Brandt’s testamentary intent to equally distribute her property to her three children; (4) erred in not awarding them attorney fees; (5) erred in awarding Bouchard certain expenses; and (6) erred awarding attorney fees to the Estate’s attorneys. Finding no errors, the North Dakota Supreme Court affirmed. View "Estate of Brandt" on Justia Law
Trust of Linn
Shirley Linn appealed a district court order denying her petition seeking a distribution of trust assets, after the court concluded the unambiguous language of the trust agreement did not compel the requested distributions. Stephen Linn, Deborah Wagner, and Mark Wagner cross-appealed the district court’s denial of their request for a recovery of their attorney fees incurred in responding to Shirley Linn’s petition. The North Dakota Supreme Court concluded the trust agreement’s language was ambiguous, and reversed and remanded this case for further proceedings with the district court. View "Trust of Linn" on Justia Law