This opinion will be unpublished and

may not be cited except as provided by

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






Estate of Kathleen Joy Allen
a/k/a Kathleen Joy Nordlie Allen,
a/k/a Kathleen Nordlie Allen,
a/k/a Kathleen N. Allen,


Filed May 11, 2004

Reversed and remanded

Peterson, Judge


Meeker County District Court

File No. P602388


David G. Berry, Olson, Nelson, Wood & Berry, 34 East Second Street, P.O. Box 682, Litchfield, MN  55355 (for respondent personal representative Kenneth R. Nordlie)


Brian M. Olsen, Brian M. Olsen Law Office, P.O. Box 988, Cokato, MN  55321 (for appellant Lonny Reed)


Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s determination that his objections to the personal representative’s petition to allow final account, settle and distribute the estate were untimely and failed to present a justiciable controversy.  We reverse and remand.


            Decedent Kathleen Allen died testate on April 17, 2002.  A June 20, 2002, order admitted decedent’s will to probate and appointed decedent’s brother, respondent Kenneth R. Nordlie, personal representative.

            On January 9, 2003, Nordlie filed a petition to allow final account, settle and distribute the estate.  On February 4, 2003, appellant Lonny Reed, decedent’s boyfriend, filed an objection to the petition.  Appellant requested a hearing to clarify a provision in decedent’s will that devised a home to appellant subject to Nordlie’s right of first refusal to purchase the home.  The provision states:

I give and devise my residence at 70423 229th Street, Dassel, Minnesota, legally described as [legal description omitted] to my good friend, LONNY JOSEPH REED.  Said bequest shall be subject to any mortgage balance encumbering said property at the time of my death, with the devisee herein to assume and pay any outstanding balance from and after the date of my death.  This bequest is also subject to a right of first refusal that I herewith give to my brother, KENNETH R. NORDLIE.  In the event of a sale of said real estate by LONNY JOSEPH REED or any other transfer, whether by sale, gift, devise, bequest or any other means, my brother, KENNETH R. NORDLIE, shall have the right of first refusal to purchase said property in an amount equal to sixty percent (60%) of any offer on said property, or in the event of a gift, devise, or decree, sixty percent (60%) of the Assessors’ Market Value in the year of my death.  Said right of first refusal shall terminate, if not exercised within ninety (90) days of the notice of offer.


Appellant objected that the distribution of the home proposed in the petition  (1) impairs his ability to refinance the mortgage or make improvements to the property; (2) does not provide a credit to him for the value of any future improvements he makes or for the reduction in the principal balance of the mortgage for payments he makes; (3) has an indefinite end and may violate the rule against perpetuities; and (4) does not indicate whether the right of first refusal is assignable, how long it will last, or whether it inures to Nordlie’s heirs.

            The district court declined to address the merits of the objections.  The district court concluded that appellant’s objections were untimely and did not relate to the final accounting or the administration of the estate and that even if the objections were timely, they failed to present a justiciable controversy.  This appeal is from the order denying appellant’s objections.


Upon review, this court examines the district court’s findings to determine whether they are clearly erroneous and reviews conclusions of law de novo.  See In re Estate of Peterson, 579 N.W.2d 488, 490 (Minn. App. 1998) (de novo standard), review denied (Minn. Aug. 18, 1998); In re Estate of Simpkins, 446 N.W.2d 188, 190 (Minn. App. 1989) (clearly erroneous standard).  Statutory construction is a question of law, which this court reviews de novo.  Shaw Acquisition Co. v. Bank of Elk River, 639 N.W.2d 873, 876 (Minn. 2002). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous.  A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.”  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (citation and quotation omitted).

Citing In re Will of Penniman, 20 Minn. 245, 20 Gil. 220 (1874), and Minn. Stat. § 524.3-412 (2002), the district court concluded that because appellant did not object to the probate of decedent’s will, the order of formal probate of the will constitutes a final judgment as to the validity of the will, and appellant’s objections to the probate of the will at this stage are untimely.

The issue in Penniman was not whether a probate court could construe a will after it had been admitted to probate, but whether an order admitting the will to probate was a judgment from which an appeal could be taken.  20 Minn. 245, 20 Gil. 220.  The Penniman court ruled that it was.  Id

Minn. Stat. § 524.3-412 states:

Subject to appeal and subject to vacation as provided herein . . . a formal testacy order . . . is final as to all persons with respect to all issues concerning the decedent’s estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs . . . .


(Emphasis added.)  Under the plain language of the statute, a formal testacy order is final as to issues related to whether the decedent left a valid will and to the determination of heirs.  But appellant’s objections do not contest the validity of decedent’s will or the determination of heirs.  Appellant objects to the distribution of the home proposed in the petition and requests a clarification of the property interest devised to him.  See In re O’Leary’s Estate, 136 Minn. 126, 132, 161 N.W. 392, 394 (1917) (stating final decree of probate court settling the estate determines to whom and upon what conditions the property passed at death of decedent).  Probate of a will does not preclude construction of the will.  See Radintz v. Northwestern Nat’l Bank & Trust Co. of Minneapolis, 207 Minn. 56, 289 N.W. 777 (1940) (addressing issue of construction of will pursuant to declaratory judgment action commenced after will was admitted to probate and after final decree was issued distributing estate); In re Estate of Peterson, 202 Minn. 31, 40, 277 N.W. 529, 534 (1938) (stating probate court has “exclusive power and authority to construe wills and determine the validity of their provisions for purposes of administration”).  Minn. Stat. § 524.3-412 does not bar an action by an interested person[1] seeking to have a valid will construed by the court.  The district court erred in concluding that appellant’s objections were untimely.

Minn. Stat. § 524.3-1001(a)(1) (2002) permits a personal representative or an interested party to petition the court to settle an estate.  The petition may ask the court to construe a will. 

A personal representative or any interested person may petition for an order of complete settlement of the estate.  The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative. . . .  The petition may request the court . . . to consider the final account or compel or approve an accounting and distribution, to construe any will . . . and adjudicate the final settlement and distribution of the estate.  After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.

Minn. Stat. § 524.3-1001(a)(1) (emphasis added).  As personal representative, Nordlie petitioned for complete settlement of the estate.  Nordlie’s petition specifically requested that the court enter an order “Construing Decedent’s Will.”  Upon receiving notice of the petition, appellant filed objections to the distribution proposed in Nordlie’s petition.

The district court concluded that appellant’s objections, even if timely, raise only hypothetical issues regarding Nordlie’s right of first refusal, and, therefore, do not present a justiciable controversy. 

“The existence of a justiciable controversy is prerequisite to adjudication.  The judicial function does not comprehend the giving of advisory opinions.  No controversy is presented, absent a genuine conflict in the tangible interests of opposing litigants.”  Izaak Walton League of Am. Endowment, Inc.  v. State, Dep’t of Natural Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977).

Appellant’s objections raised issues regarding the property interest that was devised to him, including whether the devise restrained alienation and violated the rule against perpetuities.  See Minn. Stat. § 501A.01 (2002) (statutory rule against perpetuities); Restatement (Second) Property, § 4.4 reporter’s note 4.b (1983) (stating rights of first refusal that impose upon the optionor the obligation to offer his property to specified persons at a percentage of the market value are generally held to be invalid).  A bequest that constitutes an unreasonable restraint on alienation or that violates the rule against perpetuities is void and unenforceable.  In re Estate of Anderson, 267 Minn. 264, 265-66, 126 N.W.2d 250, 251-52 (1964) (holding rule against restraints on alienation voided restrictions and conditions placed on conveyance and affirmed district court’s reformation of title to fee simple).  Appellant’s objection that the distribution proposed in Nordlie’s petition may be invalid presented a genuine conflict between Nordlie’s and appellant’s tangible interests with respect to distribution of decedent’s estate.  See Peterson’s Estate, 202 Minn. at 40, 277 N.W. at 534 (stating probate court has “exclusive power and authority to construe wills and determine the validity of their provisions for purposes of administration”); Appleby v. Watkins, 95 Minn. 455, 459, 104 N.W. 301, 302 (1905) (stating jurisdiction of probate court includes power to construe a will when construction is involved in settlement and distribution of the estate); In re Estate of Palmer, 647 N.W.2d 13, 15 (Minn. App. 2002) (stating Minnesota law grants to “the probate court . . . jurisdiction over all subject matter relating to estates of decedents including construction of wills”), aff’d, 658 N.W.2d 197 (Minn. 2003).

            Because appellant’s objections were not untimely and presented a justiciable controversy, the district court erred in declining to address the merits of appellant’s objections.  Therefore, we reverse the order denying the objections and remand to permit the district court to address the merits of the objections.  We express no opinion about the merits of appellant’s objections.

            Reversed and remanded.

[1] Neither party disputes that appellant fits within the definition of an interested person.  See Minn. Stat. § 524.1-201(24) (2002) (stating “interested person” includes devisees).