This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).






In Re the Estate of:

Michael T. Brezinsky,

a/k/a Michael T. Brecinsky.



Filed January 23, 2001


Lansing, Judge


Cass County District Court

File No. PI99654


Steven R. Qualley, Paul J. Sandelin, Gammello, Sandelin & Qualley, P.A., 30849 First Street, Pequot Lakes, MN 56472 (for appellants Jason Brezinsky and Tad Brezinsky)


Andrew C. McKenney, Thomas P. Harlan, Donohue, McKenney & Harlan, Ltd., 990 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent Marlys Brezinsky and Estate of Michael T. Brezinsky)


            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court denied Jason and Tad Brezinsky’s motion to vacate an order, issued more than seven months earlier, to admit their father’s 1999 will to probate.  The Brezinsky sons appeal, contending that the denial of the motion to vacate and the court’s accompanying denial of a motion for a temporary injunction constituted an abuse of discretion.  Because the Brezinsky sons failed to show that they were entitled to an injunction or relief from the judgment, we affirm.


            Michael T. Brezinsky died of pancreatic cancer on May 12, 1999.  Ten years before his death, on January 28, 1989, Brezinsky had executed a will appointing First National Bank Association as personal representative and trustee and establishing a trust with the majority of the estate assets.  On May 9, 1999, three days before his death, Brezinsky met with an attorney in Brezinsky’s home and executed a new will.  The 1999 will appointed his wife, Marlys Brezinsky, personal representative and unsupervised trustee.  The 1999 will further provided that Marlys Brezinsky would receive all tangible personal property and the residue of the estate, subject to the maximum marital deduction allowed by the federal tax laws. 

The primary asset in Brezinsky’s estate is a funeral-home business.  Brezinsky owned all of the stock in the business and owned the property on which the funeral home is located.  Brezinsky’s 1999 will stated his wish to have one or more of his sons carry on his funeral-home business.  The will provided that if one or more of his sons wanted to purchase the business within one year of his death, Marlys Brezinsky should permit the sale at a ten-percent discount from market value.  The will further provided that Marlys Brezinsky would have sole and absolute discretion in setting the price and terms of the sale.  Although neither the record nor the argument is clear on this point, it appears that Brezinsky had three sons, Jason and Tad from his first marriage, and Mike, a college-age son from his marriage to Marlys Brezinsky.

About two months after Brezinsky’s death, Marlys Brezinsky filed a petition for formal probate of the 1999 will.  Following an August 30, 1999, hearing, the district court on September 28, 1999, admitted the 1999 will to probate and appointed Marlys Brezinsky personal representative.

From September 1999 to May 11, 2000, Marlys Brezinsky negotiated the sale of the funeral-home business with Jason and Tad Brezinsky (Brezinsky sons). The negotiations broke down in May 2000, and the Brezinsky sons moved to vacate the September 1999 order admitting the 1999 will to probate.  In their motion papers, the Brezinsky sons claim that Brezinsky lacked testamentary capacity to execute the 1999 will because the morphine he took to relieve the pain of his cancer impaired his judgment, and the 1999 will was the result of undue influence by Marlys Brezinsky. 

The district court granted a temporary restraining order pending the hearing.  Following the hearing, the district court (1) denied the motion to vacate the September 1999, order, holding that the Brezinsky sons had not met the requirements necessary to vacate an order;  (2) denied a motion for a temporary injunction; and (3) vacated the previously issued temporary restraining order.  The Brezinsky sons appeal from the denial of their motions and the vacation of the temporary restraining order. 


Minnesota’s Uniform Probate Code provides that the probate court has the power to vacate an order on grounds of “excusable neglect” within two years of the filing date.  Minn. Stat. § 525.02 (2000).  In considering a motion to vacate for excusable neglect under section 525.02, we apply the standards governing motions to vacate a default judgment under Rule 60.02 of the Rules of Civil Procedure.  In re McCue, 449 N.W.2d 509, 511 (Minn. App. 1990); In re Estate of Weber, 418 N.W.2d 497, 501-02 (Minn. App. 1988), review denied (Minn. Apr. 4, 1988). 

To prevail on a motion to vacate judgment under rule 60.02, the movant must demonstrate (1) a reasonable claim on the merits, (2) a reasonable excuse for the failure to act, (3) due diligence after notice of the order, and (4) that no substantial prejudice will result to the opposing party if the motion to vacate is granted.  See Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952).  All four factors must be satisfied to justify relief under rule 60.02.  Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997).  We review the district court’s decision on a motion to vacate under an abuse-of–discretion standard.  Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn. 1988).  The district court’s findings of fact in denying or granting an injunction, whether based on oral or documentary evidence, will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.

In denying the motion to vacate and to issue a temporary injunction, the district court made specific findings on three of the four Hinz factors.  The court found that the Brezinsky sons failed to demonstrate a reasonable excuse for not objecting when the will was admitted to probate, failed to act with due diligence in bringing their motion to vacate, and further found that the estate would be significantly prejudiced by a delay in the probate proceedings or by the issuance of a temporary injunction.

On the Hinz reasonable-excuse factor, the record supports the district court’s finding that the Brezinsky sons did not have a reasonable excuse for failing to make a timely objection to admission of the 1999 will.  Their motion to vacate is predicated on allegations of Brezinsky’s lack of testamentary capacity and Marlys Brezinsky’s exercise of undue influence.  These claims are in turn predicated on their own testimony that their father was confused and heavily sedated in the days before his death and on the doctor’s affidavit of the general effects of morphine.  The evidence on which the Brezinsky sons rely for their motion to vacate was, as the district court noted, fully available in July 1999 at the time of the filing and the hearing on the petition for formal probate.  Cf. McCue, 449 N.W.2d at 511 (upholding district court’s vacating an order admitting will to probate when deceased’s son was denied continuance of hearing despite recent release from intensive care following a heart transplant and attendant inability to obtain counsel).

The Brezinsky sons argue that they should reasonably be excused for failing to object to the probate of the will because Marlys Brezinsky has not negotiated in good faith in their attempts to purchase the funeral-home business.  We note that the file contains persuasive evidence of Marlys Brezinsky’s good-faith negotiations.  But even accepting the Brezinsky sons’ rendition of the facts, their unhappiness with the terms of the 1999 will—and with these negotiations—does not excuse their failure to object. A claimant with knowledge that causes him or her to believe that a will is infirm is obligated to object within the prescribed time limits of the probate court procedures and may not unilaterally select a time to assert the objection.

            On the Hinz due-diligence factor, the district court found that a substantial period of time elapsed between the order admitting the will to probate and their motion to vacate the order.  The record indicates the Brezinsky sons received notice of the September 28, 1999, order and did not move to vacate the order until seven months later.  We agree with the district court’s conclusion that the Brezinsky sons failed to show that they acted with due diligence after entry of the order.

            The district court found that Brezinsky’s estate would be substantially prejudiced if the Brezinsky sons were permitted to proceed with their objections or granted an injunction.  The record amply supports this finding.  Marlys Brezinsky has already negotiated with the Brezinsky sons for approximately one year over the sale of the funeral-home business.  During this time, the funeral home’s experienced director, who is not a member of the Brezinsky family, has terminated his employment and opened a competing funeral home.  While the former director is still interested in purchasing Brezinsky’s funeral-home business, further delay or protracted legal proceedings may well affect his possible purchase or the price he will be willing to pay.  

Although the district court did not make a specific finding on whether the Brezinsky sons had a reasonable chance of prevailing on the merits, the court observed that the will was witnessed by Brezinsky’s two close friends, Pastor Terrill Haddix and Father Edward Foster.  Their affidavits state that they had an appreciable amount of time when the will was signed to observe Brezinsky, interact with him, and determine the extent of his capacity.  In addition, according to Father Foster’s affidavit, Brezinsky had specifically asked him if Father Foster’s brother, a St.Paul lawyer, would come to Pine River to assist in drafting the will. The court further observed that given the evidence the Brezinsky sons provided in their affidavits, it does not seem likely that they could prevail.  Again, the record supports the district court’s observation.  The generality of the allegations of incapacity and undue influence do not demonstrate a strong case on the merits.  See Charson, 419 N.W.2d at 491 (construing “reasonable claim” to require more than “conclusory allegations in moving papers”).  The district court did not abuse its discretion in denying the Brezinsky sons’ motion to vacate the order admitting the will to probate. 

The remaining issues on appeal relate to the district court’s vacating the temporary restraining order and denying the temporary injunction.  A temporary restraining order preserves the status quo until an application can be made for a temporary injunction.  Bio-line, Inc. v. Burman, 404 N.W.2d 318, 320-21 (Minn. App. 1987) (citing 2A D. Herr & R. Haydock, Minnesota Practice § 65.1 (2d ed. 1985)).  Because the Brezinsky sons moved for a temporary injunction, which was denied, the only issue is whether the district court erred in denying the motion for a temporary injunction.  The purpose of a temporary injunction is to preserve the status quo until adjudication of the case on its merits.  Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982).  Because we have affirmed the district court’s denial of the motion to vacate, the probate court’s order admitting the will to probate stands and the issue of the validity of the will is not subject to further adjudication.  The district court properly denied the motion for a temporary injunction.