This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-330

 

 

In re Estate of:

Clayton Evenson,

petitioner,

Respondent,

 

vs.

 

Rita Keckeisen,

Appellant.

 

 

Filed September 2, 2003

Affirmed
Klaphake, Judge

 

Sibley County District Court

File No. PX0226

 

Susan Conner Enwright, Somsen, Mueller, Lowther & Franta, PA, 106-1/2 N. Minnesota, New Ulm, MN† 56073-0038 (for respondent John C. Ohlemann, personal representative of estate); and

 

R.J. McGraw, 209 Citizens Bank Building, P.O. Box 98, Hutchinson, MN† 55350 (for respondent Lynn W. Nelson)

 

C. Thomas Wilson, Peter D. Favorite, Gislason & Hunter LLP, 2700 South Broadway, Post Office Box 458, New Ulm, MN† 56073-0458 (for appellant)

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

KLAPHAKE, Judge

††††††††††† Appellant Rita Keckeisen, a devisee under the will of testator Clayton Evenson, challenges the district courtís determination that Evensonís will was ambiguous, adopting extrinsic evidence of his intent, and correcting the will to increase devisee Lynn Nelsonís share to 15% of the estate.† Because the district court did not err in concluding that the language of the will is ambiguous and that the extrinsic evidence supplied a reliable guide to Evensonís intent, we affirm.

D E C I S I O N

††††††††††† This court reviews the district courtís decisions on probate matters to determine if its findings are clearly erroneous or whether it erred in its legal conclusions.† In re Estate of Sangren, 504 N.W.2d 786, 788 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).† A district courtís finding of ambiguity is reviewed as a question of law.† In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn. App. 1992).†

††††††††††† The purpose of construction of a will is to determine the testatorís intent.† In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985).† This is done by examining the will, any codicils, and the surrounding circumstances at the time of execution of the will.† Id.† Extrinsic evidence of the testatorís intent is admitted only if the will is ambiguous either on its face or because surrounding circumstances support more than one construction.† Id.† The district court here determined that Evensonís will is ambiguous because it purports to divide ď[a]ll of the rest, residue and remainder of my estate of every nature and description and wheresoever situated,Ē but still leaves 10% of the estate unaccounted for or intestate.

††††††††††† †ďThe fact of making a will raises a strong presumption against a partial intestacy.Ē† In re Tweedieís Will, 234 Minn. 444, 448, 48 N.W.2d 657, 659 (1951).† In Tweedie, the court admitted extrinsic evidence of the testatorís intent, in part because it was clear that the decedent intended to dispose of his entire estate, but failed to do so.† Id. at 449, 48 N.W.2d at 659.† Evensonís will also purports to pass all the ďrest, residue and remainderĒ of his estate, yet allows 10% of the estate to remain in partial intestacy.†† This inconsistency is sufficient to raise a question of ambiguity.

††††††††††† Appellant asserts that even if the will is ambiguous, the district court erred by relying on evidence of Evensonís previous will and the scrivenerís notes of his discussions with Evenson while preparing this will.† Citing In re Hartman, 347 N.W.2d 480, 483 (Minn. 1984), appellant argues that such evidence is inherently unreliable and cannot provide a basis for a testatorís intent.† If the district court had simply consulted Evensonís prior will, appellantís claim of unreliability would arguably be true.† Here, however, the district court had the dated notes of the scrivener, which provided a basis for the changes contemplated by Evenson in drawing a new will and a clear indication of Evensonís intent; this is further confirmed by comparison with the prior will and with the circumstances surrounding execution of the will.

††††††††††† Evenson explained that he wished to remove one sister as a devisee because she was living in a nursing home.† He directed the scrivener to divide the sisterís percentage among his blood relatives, while reserving the same total percentage to his blood relatives, and instructed the scrivener to make no changes to the bequests to his stepchildren and step-grandchildren.† The only deviation from these instructions was an unexplained reduction in the devise to Evensonís stepson, Lynn Nelson, whose share was reduced from 15% to 5%.† The scrivenerís legal assistant confirmed that this reduction was an apparent typographical error.

††††††††††† Appellant correctly asserts that the court cannot ďspeculate what the testator would have done with knowledge of events subsequent to his or her death and thereby rewrite the will.Ē† Hartman, 347 N.W.2d at 484.† But, as we have stated, ď[n]othing in the history of Minnesota case law suggests cause for blinding the courts to evidence of the testatorís intention in cases where the will contains contradictory language.Ē† In re Estate of Cole, 621 N.W.2d 816, 820 (Minn. App. 2001).† The district court thus did not err in concluding that the will was ambiguous, admitting extrinsic evidence of the testatorís intent, and correcting the will to reflect that intent.

††††††††††† Affirmed.