This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Scott Pollock,

as successor in interest for

Jean Pollock Halvarson,





Thorfinson Lucas & Olson,



William L. Lucas,



Filed July 8, 2003

Klaphake, Judge


Hennepin County District Court

File No. 014296


Scott Pollock, 12015 Mayflower Circle, Minnetonka, MN  55305 (pro se appellant)


William L. Lucas, 7456 Cahill Road, Edina, MN  55439-2728 (attorney pro se)


            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this legal malpractice action, appellant Scott Pollock, as successor in interest for his mother, Jean Pollock Halvarson, argues that the district court erred in granting summary judgment to respondent William Lucas.  Because the district court did not err in finding the underlying antenuptial agreement enforceable and in concluding that respondent therefore did not commit malpractice by failing to challenge the substantive fairness of the agreement, we affirm.


            When reviewing a grant of summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Because the facts are undisputed, review is limited to application of the law.

            In a legal malpractice action, the plaintiff must prove that (1) an attorney-client relationship existed between the parties; (2) the defendant attorney’s actions amounted to negligence or breach of contract; (3) the actions were the proximate cause of plaintiff’s damages; and (4) but for the defendant attorney’s conduct, plaintiff would have prevailed in the underlying action.  Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994).  In order to determine whether the plaintiff would have prevailed in the underlying action, this court on review undertakes an analysis of the so-called “case-within-a-case.”  Pollock-Halvarson v. McGuire, 576 N.W.2d 451, 454 (Minn. App. 1998) (citing Rouse, 520 N.W.2d at 408), review denied (Minn. May 28, 1998).  If the underlying action was decided by trial, this court decides whether the evidence supported the verdict.  Rouse, 520 N.W.2d at 409.  Where the legal malpractice action is decided by a summary judgment, this court must decide whether the underlying action would have survived summary judgment.  Id. at 410. 

            At issue here in the “case-within-a-case” is whether the antenuptial agreement that Pollock Halvarson entered into with her late husband, Norman Halvarson, was enforceable.  Antenuptial agreements are enforceable if they are both procedurally and substantively fair.  Minn. Stat. § 519.11 (2002); McKee-Johnson v. Johnson, 444 N.W.2d 259, 265 (Minn. 1989). Procedural fairness requires a “full and fair disclosure of the earnings and property of each party, and * * * an opportunity to consult with legal counsel of [each party’s] choice.”  Minn. Stat. § 519.11, subd. 1.  Appellant does not raise the issue of procedural fairness here.[1]

            Substantive fairness is more difficult to quantify.  A substantive review “assess[es] fairness, reasonableness, or consxcionability of the terms of the agreement.”  McKee-Johnson, 444 N.W.2d at 265.  A substantive review of fairness should be made not only at the time of execution, but also at the time of enforcement; a change in circumstances could render what had been fair at execution unconscionable at enforcement.  Id. at 267.  Because of the right of adults to freely contract with respect to property rights, courts have usually “limited invalidation of contract provision[s] to those which could not have reasonably been foreseen, and which have become so one-sided as to be oppressive or unconscionable.” Id.[2]

            As the district court concluded, Norman’s debilitating illness during the last years of the marriage “unfortunately, [was] neither unusual nor unforeseeable.” Further, Pollock Halvarson’s financial circumstances did not change drastically from the time of execution of the agreement to the time of enforcement.  Pollock Halvarson entered into the antenuptial agreement with essentially the same resources and assets that she continued to hold at Norman’s death.  

            As an alternative basis for contesting the substantive fairness of the antenuptial agreement, appellant argues that Norman’s estate was unjustly enriched by accepting the free services Pollock Halvarson provided by caring for Norman at home.  Unjust enrichment, an equitable doctrine, provides a basis for recovery where one party has been unjustly enriched at the expense of another.  First Nat’l Bank v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981).  “Unjustly” is defined as illegally or unlawfully, and generally requires evidence of illegal or fraudulent actions.  Id.; Custom Design Studio, Inc. v. Chloe, Inc., 584 N.W.2d 430, 433 (Minn. App. 1998), review denied (Minn. Nov. 24 1998).  It is presumed that providing personal services for a family member is generally a gratuitous activity, not one involving an illegal or fraudulent act.  In re Estate of Beecham, 378 N.W.2d 800, 802-03 (Minn. 1985).  A claimant may overcome the presumption of gratuitous activity by showing an actual or implied contract to provide services.  Id

            Claims for personal services to family members are allowed on rare occasions, generally involving special circumstances.  See id. at 804 (affirming award for services by daughter-in-law over seven years; mother-in-law was incontinent and needed considerable care provided in daughter-in-law’s home; daughter-in-law had assumed care despite fact that she had known mother-in-law for only a short time); In re Estate of Tilghman, 240 Minn. 494, 494-95, 61 N.W.2d 743, 745 (1953) (affirming award to daughter who provided three years of service to gravely ill father, despite the fact he abandoned her fifty years before and never supported her).  On the other hand, the mere provision of extensive services, with no additional compelling facts, will not overcome the presumption that such services were gratuitous.  In re Estate of Novak, 398 N.W.2d 653, 656 (Minn. App. 1987) (opining that individuals are presumed to share duties and provide services to family members), review denied (Minn. Feb. 18, 1987).

            Here, Pollock Halvarson provided services for her husband, not an unusual situation.  Although the marriage was of relatively short duration, they had been in a relationship for almost ten years before they married.  Pollock Halvarson herself entered the marriage with significant health problems.  No evidence was produced that would permit Pollock Halvarson to overcome the presumption of gratuitous services to a degree that would permit her to prove unjust enrichment. 

            Pollock Halvarson would not have survived summary judgment in any of the underlying causes of action.  The district court therefore did not err in granting summary judgment to respondent in the legal malpractice action.  Because of our decision, we do not reach the issues raised by respondent.


[1] That issue was decided by this court in Pollock-Halvarson v. McGuire, 576 N.W.2d 451 (Minn. App. 1998), review denied (Minn. May 28, 1998).


[2] Although McKee-Johnson dealt with enforceability of an antenuptial agreement upon dissolution, rather than death, nothing in the analysis of that case suggests a different standard should be used when dealing with an estate.