This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed April 6, 2004
Allan R. Poncin, 401 Second Avenue South, Suite 550, Minneapolis, MN 55401 (for respondent Arlett Christensen)
Lori L. Guzmán, Brigitta Sharpe, Guzmán Kallheim & Sharpe, P.A., 14800 Galaxie Avenue, Suite 103, Apple Valley, MN 55124 (for respondent Derrinda Mitchell)
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellants Gregory and Michael Peterson challenge the judgment granting personal representative Derrinda Mitchell’s motion for summary judgment. Appellants argue they presented sufficient evidence to create a genuine issue of fact whether decedent Dorothy Peterson lacked testamentary capacity at the time she executed her will and whether the will and non-testamentary gifts were the result of undue influence exerted by Arlett Christensen. We affirm the summary judgment on the claim of undue influence, but reverse and remand on the issue of testamentary capacity.
Decedent died July 17, 2001, leaving an estate valued at over $500,000, which included assets jointly held with Christensen. Decedent had never married and had no children. Appellants are the sons of decedent’s nephew Harold Peterson. For most of decedent’s life, she lived in the family home on Oakland Avenue in Minneapolis, and for much of her adult life, she lived there with a sister.
Christensen’s family and the decedent’s family have been neighbors since 1935. Christensen had maintained a friendship with the decedent since they became neighbors. In 1978, Christensen purchased a home two houses away from the decedent. In 1987, decedent’s last surviving sibling passed away. At that point, Christensen began providing a greater level of support including assisting decedent with financial matters, and the two women became closer friends.
In October 2000, Christensen contacted Linda Bogut to provide decedent with legal representation on a real estate matter because decedent’s previous attorney had terminated his private practice. Bogut met with decedent, Christensen, and the two other signatories to a contract for deed. These two other signatories suggested decedent speak to Bogut about updating her will. At that time, decedent had an existing will that had been executed in 1962. By 1999, all persons listed in the will had passed away. Decedent decided to have Bogut prepare a new will for her and prepare a power of attorney form in favor of Christensen.
In late October 2000, decedent suffered a heart attack. She was admitted to Abbott Northwestern Hospital. On November 3, 2000, Bogut visited decedent at the hospital intending to have decedent sign the power of attorney form decedent had requested but Bogut found decedent “had had a bad night and was confused.” In early November 2000, decedent was transferred to Augustana Care Center. On November 9, 2000, Bogut visited decedent at Augustana, found her to be competent, and had her sign the power of attorney form Bogut had prepared.
Bogut stated she continued to work with decedent on her will into February 2001. During this time, Bogut suggested decedent “retitle her money accounts as joint tenancy accounts with Arlett Christensen with right of survivorship.” Bogut finished the final draft of the will in February 2001 and met with decedent at Augustana to have it signed. On February 23, 2001, decedent executed the new will. Approximately five months later decedent passed away.
On August 6, 2001, Mitchell filed a petition for formal probate of decedent’s will. Appellants objected on the grounds that decedent lacked testamentary capacity at the time the 2001 will was executed and the 2001 will was the result of Christensen’s undue influence on the decedent. Appellants also filed a civil action seeking to recover money from Christensen arguing Christensen used undue influence to obtain non-testamentary gifts. The matters were consolidated and assigned to a referee. In August 2002, Mitchell filed a motion seeking a summary judgment dismissing appellants’ objections. In December 2002, the district court ordered summary judgment denying appellants’ objections to the will and determined the court did not need to reach the issue whether appellants had standing to challenge the non-testamentary transfers because it found Christensen did not exert undue influence on decedent.
On appeal from a summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 429-30 (Minn. 2002). Summary judgment, however, is a blunt instrument and should be employed only where it is perfectly clear that no disputed issue of fact is involved, and that it is neither desirable nor necessary to inquire into facts which might clarify the application of the law. Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).
When reviewing a grant of summary judgment, “[t]his court views the evidence in the light most favorable to the party against whom the motion was granted, and resolves all factual inferences and ambiguities in favor of the nonmoving party.” Wistrom v. Duluth, Missabe & Iron Range Ry. Co., 636 N.W.2d 611, 613 (Minn. App. 2001). In order to defeat a motion for summary judgment, the non-moving party must present evidence that is “sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). But the district court is not authorized to make credibility determinations in deciding whether to grant summary judgment. Powell v. Anderson, 660 N.W.2d 107, 122 (Minn. 2003).
1. Appellants argue they presented sufficient evidence to create a genuine issue of fact whether decedent had testamentary capacity at the time she executed her will in February 2001. In order for a will to be valid, the testator must have had “testamentary capacity” at the time the will was executed. In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986). A testator has testamentary capacity to execute a will if she understands “the nature, situation, and extent of [her] property and the claims of others on [her] bounty or [her] remembrance, and [she] is able to hold these things in [her] mind long enough to form a rational judgment concerning them.” In re Estate of Congdon, 309 N.W.2d 261, 266 (Minn. 1981) (quotation omitted). Testamentary capacity requires that the testator have capacity to know and understand the nature and extent of her bounty. Id.
In order to defeat the motion for summary judgment, appellants had to present evidence that when viewed in the light most favorable to them, and resolving all factual inferences and ambiguities in their favor, reasonable persons could draw different conclusions regarding whether decedent had capacity to know and understand the nature and extent of her bounty. There is evidence that decedent suffered from dementia, that the dementia “was very noticeable and was worsening” in 1999, and decedent lacked “orientation or reasoning ability” in October 2000. Further, notes from medical providers show that at times decedent was confused. One report, dated November 13, 2000, states that decedent was “[u]nable to participate with plan of care [due to] confusion.” A second report dated February 20, 2001, states decedent “is at risk for falls [due to] increased confusion and weakness.”
The evidence demonstrates decedent suffered from dementia, was increasingly confused three days before she signed the will, and in October 2000 lacked reasoning abilities. On a motion for summary judgment, it is inappropriate to compare this evidence to the evidence offered by the personal representative regarding decedent’s testamentary capacity, to do so would require the district court to make impermissible credibility determinations. See Powell, 660 N.W.2d at 122. This evidence, and the favorable inferences that can be drawn from the evidence, creates a genuine issue of fact regarding decedent’s mental capacity at the time the will was executed and the summary judgment on this issue is reversed.
2. Appellants also argue that they presented sufficient evidence to create a genuine issue of fact whether Christensen exerted undue influence on decedent. A will that is the result of undue influence is not valid. In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957).
Appellants argue the “elements” of undue influence were laid out by this court in In re Estate of Anderson, 379 N.W.2d 197 (Minn. App. 1985). In that decision we noted important factors a court may consider in determining whether a will was the result of undue influence. Id. at 200. But the supreme court has stated that in order to show undue influence:
The evidence must go beyond suspicion and conjecture and show, not only that the influence was in fact exerted, but that it was so dominant and controlling of the testator’s mind that, in making the will, [she] ceased to act of [her] own free volition and became a mere puppet of the wielder of that influence.
Congdon, 309 N.W.2d at 268 (quotation omitted). Thus, the question before this court is whether the evidence viewed in the light most favorable to the appellants is sufficiently probative with respect to the essential elements of the appellants’ case—whether Christensen exerted influence on the decedent to create the will and whether it was so direct and controlling that decedent ceased to act of her own volition—“to permit reasonable persons to draw different conclusions.” See DLH, Inc., 566 N.W.2d at 71.
Here, there is no evidence Christensen took active participation in the preparation of decedent’s will. See In re Estate of Prigge, 352 N.W.2d 443, 446 (Minn. App. 1984) (stating when person with confidential relationship actively participates in making of will presumption of undue influence arises). Rather, the uncontradicted evidence indicates that decedent and Bogut met numerous times to discuss the will outside the presence of Christensen and that decedent initiated discussions with Bogut regarding the will after suggestions from neutral third parties. It is questionable whether appellants could demonstrate the will was the result of Christensen’s influence where decedent initiated discussions of the will at the suggestion of an uninvolved party.
Even if we were to find Christensen did exert some influence on decedent, there is insufficient evidence to find that the influence was so dominant and controlling of decedent’s mind that, in making the will, she ceased to act of her own free volition and became a mere puppet of Christensen’s influence. Because appellants have not presented evidence sufficiently probative with respect to an essential element of undue influence, summary judgment was appropriate on whether the will and the non-testamentary gifts were the result of undue influence. See DLH, Inc., 566 N.W.2d at 71.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellants have not presented any evidence or argument to distinguish the alleged undue influence to obtain the non-testamentary gifts from that used to create the will. Because our conclusion that there was insufficient evidence Christensen exerted a direct and controlling influence over the decedent’s mind applies equally to appellants’ claim that the non-testamentary gifts were the result of undue influence, we do not separately analyze that claim.