IN COURT OF APPEALS
re: Estate of Mary Victorine Carpenter Torgersen
a/k/a Mary V. Torgersen
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File Nos. 27-00103326 & 27-P403000805
Bruce W. Larson, Charles A. Beckjord, Law Office of Bruce W. Larson, 746 Mill Street, Wayzata, MN 55391 (for appellant)
William M. Hart, Damon L. Highly, Timothy W. Ridley, Meagher & Geer, P.L.L.P., Suite 4200, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
A person nominated as personal representative in a will who, in good faith, challenges the allowance of a subsequent will that names a different personal representative is entitled to attorney fees incurred in the challenge, whether successful or not, under Minn. Stat. § 524.3-720 (2004).
In this will contest, appellant argues that the district court clearly erred in determining that appellant did not meet his burden of proving that decedent’s November 2002 will was the result of respondent’s undue influence and did not meet his burden of proving that decedent lacked testamentary capacity. Appellant also challenges denial of his request for attorney fees under Minn. Stat. § 524.3-720 (2004).
Following her husband’s death in
1971 until 2001, decedent Mary Torgersen lived in
The Masbaums provided significant nonfinancial
assistance to Torgersen while Torgersen lived in
In 2001, EmCele Masbaum’s health
problems prevented her from continuing to provide assistance to Torgersen. The Masbaums unilaterally decided that
Torgersen would move to
In May 2001, when Andrea Groves
arrived for one of her regular visits with Torgersen in
EmCele Masbaum last saw Torgersen when
she visited Torgersen in
After EmCele Masbaum’s September
2001 visit with Torgersen, the Masbaums wanted Torgersen to return to
The Masbaums claim that the
Appellant wrote a three-page letter
to Torgersen on March 15, 2002, reminding her of all of the assistance EmCele
Masbaum had given her over the years, demanding that she stop criticizing
EmCele Masbaum to Andrea Groves, and accusing Torgersen of being ungrateful and
self absorbed. The letter expresses the
Masbaums’ conclusion that “[EmCele] need[s] to rescue you, again,” and concludes,
“For your peace of mind, you need to come for the visit. This may be your last chance. If you don’t and this is how you and those
people want it; so be it. We will say
Good-bye.” Later, the Masbaums refused
to give Torgersen’s relatives the telephone number for the
In June 2002, Torgersen executed a will that specifically excluded EmCele Masbaum. In August 2002, Torgersen revised the will to exclude all of her daughters except Andrea Groves. In November 2002, Torgersen revised her will at her attorney’s suggestion to add the USAA account as a probate asset.
Torgersen died in April 2003 at the
age of 93. Respondent petitioned for
probate of the November 2002 will. Appellant
objected and petitioned for probate of Torgersen’s 1978 will that nominated him
personal representative and devised the estate equally to the four daughters. Appellant asserted that Torgersen lacked
testamentary capacity when the November 2002 will was executed and was unduly
influenced by the
After a five-day trial, a referee concluded that appellant had failed to meet his burden of proving undue influence or lack of testamentary capacity and ordered probate of the November 2002 will. The district court affirmed the referee’s findings and order and denied appellant’s request for attorney fees under Minn. Stat. § 524.3-720 (2004). This appeal followed.
1. Was the district court’s finding that appellant failed to establish that decedent was unduly influenced in the making of her November 2002 will clearly erroneous?
2. Was the district court’s finding that appellant failed to establish that decedent lacked testamentary capacity when she made the November 2002 will clearly erroneous?
3. Did the district err by concluding that, as a matter of law, appellant is not entitled to attorney fees under § Minn. Stat. 524.3-720 (2004)?
I. Standard of review
contestants of a will have the burden of proving lack of testamentary capacity
and undue influence.
Generally this court reviews a
denial of attorney fees under an abuse-of-discretion standard. See In
re Estate of Van Den Boom, 590 N.W.2d 350, 354 (Minn. App. 1999) (stating
that “this court will not reverse a district court’s denial of attorney fees
unless there has been an abuse of discretion”), review denied (Minn. May 26, 1999).
In this case, however, the district court’s denial of appellant’s
request for attorney fees was based on the district court’s application of a
statute to the facts. The construction
and application of a statute is a question of law, which this court reviews de
II. Undue Influence
To invalidate a will for undue influence,
a contestant must show that another person exercised influence at the time the
testator executed the will to the degree that the will reflects the other
person’s intent instead of the testator’s intent. In re
Estate of Reay, 249
Courts consider several factors when
determining whether a testator was unduly influenced, including (1) an
opportunity to exercise influence; (2) the existence of a confidential
relationship between the testator and the person claimed to have influenced the
testator; (3) active participation by the alleged influencer in preparing the
will; (4) an unexpected disinheritance or an unreasonable disposition; (5) the
singularity of will provisions; and (6) inducement of the testator to make the
will. In re Estate of Peterson, 283
The record supports the district
court’s findings that the
Porter testified that he first met
with Torgersen at the
When Torgersen amended her will in
August 2002 to additionally exclude two daughters who live in
Porter testified that Torgersen
decided to amend the will in November 2002 at his suggestion that a specific
provision concerning the USAA account be added to the will. Porter testified that this was the only
change to the will made in November 2002.
He testified that he reviewed the terms of each will with Torgersen and
had her confirm her agreement with the terms.
Porter testified that he understands the standard for legal competence
Stephan and Elizabeth Damian
witnessed Torgersen’s November 2002 will.
The Daminans are friend of the
Although appellant accuses
respondent of making it his “full time job” to exercise influence over
Torgersen and asserts that the Groveses’ “angry fits” and “dominat[ion]” of
Torgersen induced Torgersen into excluding her other daughters from her will, there
is significant evidence in the record that Torgersen’s attitude toward the
Masbaums resulted from Torgersen’s perception of the Masbaums’ actions toward
and communications with Torgersen. The
evidence demonstrates that the
III. Testamentary Capacity
Testamentary capacity exists if the testator
knows “the nature, situation, and extent of [her] property and the claims of
others on [her] bounty . . . and [she] must
be able to hold these things
in [her] mind long enough to form a rational judgment concerning them.” In re
Estate of Healy, 243
Regarding the reasonableness of the property disposition, as discussed above, evidence of the nature of the relationships between Torgersen and the Masbaums, and evidence of Torgersen’s understanding of the effect an inheritance would have on benefits received by her daughters who live in Florida, provides a context for Torgersen’s devise of her property that is not unreasonable from her perspective.
Concerning conduct before and after execution of the will, appellant argues that Torgersen’s conduct in the months following the November 2002 will shows that she lacked testamentary capacity. He refers to a December 2, 2002 conservatorship hearing in which Torgersen appeared to be “very confused” and documents signed by Torgersen requesting that the Masbaums be prosecuted for trespass if they attended her funeral. Porter testified that Torgersen’s appearance at the conservatorship hearing was dissimilar to how she appeared when he saw her on other occasions and that, in his opinion, Torgersen was competent when she executed her June, August, and November 2002 wills.
Regarding expert testimony, appellant
relies on his own diagnosis and the diagnosis of “pseudodementia” by a
psychologist in March 2003. But Dr.
Kiefer, Torgersen’s treating physician in
In March 2003, Torgersen underwent a
neuropsychological evaluation at Park Nicollet Clinic performed by licensed
psychologist Michael J. Furhman, Ph.D., a board-certified clinical neuropsycholgist. Dr. Furhman’s letter-report dated April 1,
2003, demonstrates that he was aware of the controversy between the
Despite finding that Torgersen’s cognitive abilities were impaired, which Dr. Furhman attributed one-half to organic factors and the other half as being “tantamount to pseudodementia,” Dr. Furhman concluded that Torgersen “does not show the level of cognitive impairment that ordinarily militates for legal intervention (e.g., conservatorship), assuming that informal sources of support and supervision are available and suitable to meet her needs.” Dr. Furhman’s report also stated that Torgersen “should not act unilaterally in matters of complexity or consequence.”
We have previously noted that “[l]ess
mental capacity is required to make a will than to conduct regular business affairs.” In re
Estate of Prigge, 352 N.W.2d 443, 444-45 (
Appellant asserts that Dr. Kiefer “did
not testify that he had expertise, training or experience in determining
testamentary capacity” and asserts that his testimony was more credible because
he is a forensic psychiatrist, and “determining competency is exactly what he
does.” Credibility determinations,
however, especially when experts are involved, are within the discretion of the
factfinder. See In re Joelson, 385 N.W.2d 810, 811 (
IV. Attorney Fees
The district court denied appellant’s request for attorney fees based on its determination that appellant is not the personal representative of Torgersen’s estate.
Any personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, or any interested person who successfully opposes the allowance of a will, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys’ fees incurred.
This provision allows not only personal representatives to recover attorney fees, but also specifically allows “nominated” personal representatives to recover, whether or not the will in which they are nominated is admitted to probate. By including “nominated” personal representatives as well as personal representatives, the statute contemplates persons who have been nominated as personal representatives in wills that have not been admitted to probate prosecuting or defending will contests and recovering the expenses of that litigation, so long as they act in good faith. See In re Estate of Evenson, 505 N.W.2d 90, 92 (Minn. App. 1993) (deciding that an unsuccessful personal representative defending or prosecuting an action in good faith may recover attorney fees and expenses because “[r]ecovery of costs and attorney fees in will contests must not depend upon whether the will is found to be valid after litigation”).
The Uniform Probate Code’s
commentary to the section that became Minn. Stat. § 524.3-720 points out that as a fiduciary for
the estate’s successors, a person named as personal representative in a will
that has not yet been probated is an interested person who may contest a will. See
Unif. Probate Code § 3-720 cmt. (amended 1993), 8 U.L.A. 184 (1998). The comment notes that this observation
applies “to the case where the named executor of one instrument seeks to
contest the probate of another instrument.”
The public policy underlying this
statute “recognize[s] that an estate as an entity is benefited when genuine
controversies as to the validity or construction of a will are litigated and
finally determined.” In re Estate of Flaherty, 484 N.W.2d
515, 518 (N.D. 1992). The statute allows
a nominated personal representative, as a fiduciary acting on behalf of the
estate, to, in good faith, pursue appropriate legal proceedings without having
to risk personal financial loss by underwriting the proceeding’s expenses.
Whether a person challenging a will is acting in good faith is a question of fact. See Evenson, 505 N.W.2d at 91 (reviewing a district court’s finding of good faith under the clearly erroneous standard); see also In re Estate of Herbert, 979 P.2d 1133, 1135 (Haw. 1999) (stating that the existence of good faith under this section is a fact question for a trial court to consider); In re Estate of Olson, 479 N.W.2d 610, 614 (Iowa Ct. App. 1991) (same). In this case, the district court did not reach the issue of good faith or reasonableness of the fees claimed. Therefore, we reverse the denial of attorney fees requested by appellant and remand to the district court for a determination of whether appellant acted in good faith and, if so, for a determination of the reasonableness of the fees requested.
Because the evidence is sufficient to support the district court’s determination that appellant did not meet the burden of proving undue influence or lack of testamentary capacity, we affirm those determinations and the order admitting the November 2002 will to probate. Because the district court erroneously concluded that appellant was not entitled to attorney fees under Minn. Stat. § 524.3-720 (2004), we reverse the denial of appellant’s request for attorney fees and remand for a determination of whether appellant acted in good faith and, if so, the reasonableness of the fees claimed.
Affirmed in part, reversed in part, and remanded.
Dated: April 5, 2006
 Andrea Groves testified
that Torgersen removed her other two daughters from her will after visiting
 The conservatorship action was dismissed by Porter because he determined that the evidence did not support the petition.
 Respondent testified that he drafted this document at Torgersen’s request, noting that Torgersen had barred some of her husband’s friends from his funeral for perceived slights.
 Torgersen frequently commented about the disintegration of her relationship with the Masbaums during her doctor visits. Appellant asserts that because Torgersen’s accusations and paranoia about the Masbaums was unfounded, these complaints undermine the doctor’s testimony that Torgersen was lucid. But no authority supports the proposition that a decedent’s mistaken belief about the motives of her children is evidence of, or establishes, lack of testamentary capacity.