This opinion will be unpublished and

may not be cited except as provided by

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






In re: Estate of Bernhard Max Preussner, Deceased.


Filed October 5, 2004


Stoneburner, Judge


Hennepin County District Court

File No. P7021534


Harry T. Neimeyer, Stringer & Rohleder, Ltd., 1200 Fifth Street Center, 55 East Fifth Street, St. Paul, MN 55101 (for appellants)


Konstandinos Nicklow, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404; and


Daniel J. Steinhagen, Steinhagen & Crist, P.L.L.P., 5001 Chowen Avenue South, Minneapolis, MN 55410 (for respondents)


Joseph F. Kueppers, Kueppers, Hackel & Kueppers, P.A., Suite 800, 101 East Fifth Street, St. Paul, MN 55101 (for beneficiary Sister Rosalind Gefre Foundation)


Curtiss Moline and Jeanne Moline, 3082 North Wilder Street, Roseville, MN 55113 (beneficiaries)


            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellants challenge the district court’s determination that decedent Bernhard Max Preussner did not lack testamentary capacity and the admission of his will to probate.  We affirm.



Decedent Bernhard Max Preussner was born in Germany on November 5, 1921, and died on August 6, 2002.  He was a naturalized citizen of the United States.  At the time of his death, he had been divorced for more than 35 years and had four adult children.  The children, appellants Peter Preussner, Bernadette Lex, Andrea Braun, and Garret Preussner, contested all of decedent’s wills executed after the will he executed in 1995, asserting that decedent lacked testamentary capacity to disinherit them as he did in every will and estate plan he made after 1995.

Decedent spent considerable time in the last seven years of his life on estate planning.  Working with attorneys specializing in estate planning, decedent arrived at a number of different plans for devising his property to various family members and charities.  Over his lifetime, decedent had amassed significant assets, including a home in Saint Anthony Village, a farm in Wabasha County (the farm), and a stock portfolio valued at close to $1 million. 

            In 1995, decedent signed a revocable trust and pour-over will which devised his estate to three of his children except for a $100,000 cash gift to his cousin Larry Mischke and Larry Mischke’s wife.

            The avoidance of estate taxes and the preservation of the farm were the focal points of decedent’s estate planning.  After 1995, decedent became obsessed with the idea that if he left the farm to his children they would not preserve it in its natural state.  He believed, based on conversations in which the children expressed that each of them might want to build a house or cabin on the farm, that they would either subdivide the farm or sell it to someone who would subdivide it.  The children tried to explain that they had no intention of subdividing the farm, but, as several witnesses testified, once decedent believed something it was very difficult to change his mind.  Decedent looked into methods to restrict development of the farm, such as restrictions in his estate-planning documents or establishing a conservation easement, but never put such measures in place. 

            In 1996, decedent contacted the lawyer who had prepared his 1995 estate plan to discuss changes to the plan.  The lawyer sent out a fee proposal, after which decedent contacted another lawyer.  Decedent explained to the new lawyer his wish to increase the gift to the Mischkes to match existing and future increases in the federal estate tax unified credit exemption equivalent, which was $600,000 in 1996.  Decedent also wanted to give the remainder of his estate to four named Catholic schools.  Decedent was explicit in his wish to disinherit his children and stated reasons, including his concern about what they would do with the farm, for wanting to disinherit them.  The attorney prepared a new will and amended trust in accordance with decedent’s instructions.  Decedent executed the documents under the attorney’s supervision on October 25, 1996.  Decedent continued to make changes to his estate plan, working with his attorney primarily in writing and by telephone.

In February 2000, decedent increased the Mischkes’ gift to $1,000,000 or the amount of the federal estate tax unified credit exemption equivalent, whichever was less; gifted his home to Nativity Lutheran Church; and gifted the farm to a Catholic church and school in Wabasha with the request that it not be sold.  He amended that plan on July 11, 2000, to gift the farm and the residue of his estate to the Sister Rosalind Gefre Foundation (the foundation).  Decedent became friends with Curtiss Moline, chair of the foundation, and depended on Moline to type many of decedent’s estate-plan changes and to research some of the options for preserving the farm.  Moline conveyed some of decedent’s requests for plan changes to decedent’s attorney.  The attorney always contacted decedent to verify that the changes requested accurately reflected decedent’s wishes before redrafting the documents.  On February 22, 2001, decedent executed a codicil to his will and another amendment to the trust, neither of which significantly altered the previous estate plan, but which added a paragraph to the will specifically disinheriting his children. 

On August 5, 2001, decedent fired a gun from a window in his home to make a point about barking dogs in the neighborhood.  After an overnight standoff with police, decedent surrendered.  Decedent was arrested and charged with felony discharge of a firearm.  As a part of the criminal proceedings, decedent underwent court-ordered psychological testing and evaluation by licensed psychologist Linda Berberoglu, Ph.D.  Based on Dr. Berberoglu’s testing and opinion, the district court held that decedent was mentally competent for purposes of the criminal proceedings.  Decedent’s defense attorney was also convinced that decedent understood the charges against him, knew what his options were, and understood the consequences of pleading guilty despite counsel’s advice not to enter a guilty plea.  Decedent pleaded guilty to the charge and received a suspended sentence and probation.  Decedent’s probation officer arranged for an evaluation by neurologist Francisco J. Gomez, who prepared a report concluding that decedent had an underlying paranoid personality but not enough to warrant a diagnosis of schizophrenia and that he may be exhibiting the “signs of early dementia.”  Decedent successfully completed his probation.

            Over the years between decedent’s divorce and the shooting incident, decedent had decreasing contact with appellants.  After the shooting incident, decedent expressed a desire to re-establish a relationship with them.  Decedent and three of the appellants met twice at Nativity Lutheran Church.  At the second meeting, which was also attended by the pastor of the church, Moline, and decedent’s probation officer, the appellants present discussed decedent’s past abuse of their mother.  At that time, decedent agreed to undergo counseling for anger management, but he did not pursue such counseling.  Appellants then attempted to establish a conservatorship for decedent.  Decedent very strongly opposed a conservatorship.  In preparation for the defense to the consevatorship petition, decedent’s attorney retained psychiatrist and internist Scott M. Yarosh, M.D. to determine decedent’s capacity to make decisions concerning his personal and financial affairs.  Yarosh found that decedent lacked specific obsessions or perseverations but exhibited paranoia towards his children, that his thought form was logical, that he was able to describe his assets, and that he was able to describe how his revocable trust would operate.  Dr. Yarosh found decedent to be “an articulate if not somewhat eccentric gentleman who is able to fluidly describe his ambient circumstances and fluidly describe the nature and scope of his estate.”  The petition for conservatorship was voluntarily withdrawn because, in the opinion of the appellants’ attorney, there was insufficient evidence to bring the matter before the court.  Appellants were unhappy that the petition was withdrawn but did not consult with another attorney regarding a conservatorship for decedent.

            In January 2002, decedent again instructed his attorney to make several changes to his will, including a contingent gift to Moline and his family.  The attorney was convinced that decedent understood the changes and that he had the capacity to make them.  The new will and an amendment to the trust provided that the Mischkes receive $1,000,000 (the current federal estate tax unified credit exemption equivalent); the Molines receive any amount by which the exemption equivalent exceeds $1,000,000, and the foundation receive the farm, the house, $200,000, and the residue of the estate.  The will and the trust again specifically disinherited the children.  Decedent executed these documents on February 21, 2002.

            Decedent died on August 6, 2002.  The Mischkes petitioned for an order to formally probate decedent’s will of February 21, 2002.  Appellants opposed the petition.  The matter was tried by a referee, whose extensive findings of fact and conclusions of law were adopted by the district court.  The district court found that although decedent was “eccentric and was likely mistaken about the intentions of his children [regarding the farm],” he was found to have the requisite capacity by a psychiatrist and psychologist who examined him at a time close to the execution of the relevant documents.  The district court noted that the attorney who prepared the documents and the attorney who represented decedent in the criminal proceedings both testified that decedent possessed testamentary capacity.  Concluding that decedent had testamentary capacity at the time he executed his last will, the district court admitted the will to probate.  This appeal followed. 



Appellants do not challenge any of the district court’s findings of fact.  Their argument is that the district court, having correctly concluded that decedent was “likely mistaken” about their intentions regarding the farm, had to conclude, as a matter of law, that decedent lacked testamentary capacity to disinherit them in 1996 when he executed the first estate plan that specifically excluded his children, and that he continued to lack testamentary capacity thereafter.  Therefore, they assert that the district court erred in admitting decedent’s will of February 2002 to probate, and they request this court to remand and direct the district court to admit the decedent’s will and trust of May 10, 1995, to probate.

            The application of law to undisputed facts is a question of law, which this court reviews de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).  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 he understands “the nature, situation, and extent of his property and the claims of others on his bounty or his remembrance, and he [is] able to hold these things in his 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 only that the testator have capacity to know and understand the nature and extent of his bounty” and not “actual knowledge thereof.”  Id. (emphasis added) (quotation omitted). 

This court has identified the following factors to be considered by a district court in determining whether a testator possessed testamentary capacity: (1) the reasonableness of the proposed disposition; (2) the testator’s conduct before and after the execution of the document; (3) any prior adjudication regarding the testator’s mental capacity; and (4) any expert testimony concerning the testator’s physical and mental condition.  Anderson, 384 N.W.2d at 520. 

Appellants argue that every disposition of decedent’s property after the 1995 will was unreasonable because they were specifically excluded, based on decedent’s mistaken belief about what they intended to do with the farm.  There is no authority for appellants’ assertion that an estate plan that specifically excludes a decedent’s children is unreasonable per se or that a decedent’s mistaken belief about the motives or future plans of his children as a matter of law establishes lack of testamentary capacity.  We find no merit in appellants’ claim.

Appellants’ brief focuses on all of the evidence presented to the district court that tended to show that the decedent’s conduct after 1995 was strange, out of character for their father, and indicative of delusional thinking and mental deterioration.  But while their brief clearly shows that decedent was, at times, an unpleasant and irascible individual who was suspicious of his children and others, there is overwhelming evidence in the record to support the district court’s determination that decedent understood “the nature, situation, and extent of his property and the claims of others on his bounty or his remembrance” and that he was “able to hold these things in his mind long enough to form a rational judgment concerning them.”  See Congdon, 309 N.W.2d at 266.  The evidence shows that decedent was well aware of the nature of his assets and expressed very clear intentions for them.  He had a solid grasp of the tax implications of devising an estate of this size and the complexities of a land trust, and he fully understood that he was disinheriting his children. 

Every attorney who dealt with decedent, including the attorney who handled his criminal case, testified that decedent possessed the requisite capacity to make a will.  The attorney who represented appellants in their attempt to establish a conservatorship for decedent testified that the petition was voluntarily dismissed because the evidence did not support a need for a conservator.  Evaluations and testimony by several medical doctors and psychologists who examined decedent during the relevant time period were admitted at trial.  The report of Dr. Berberoglu described decedent as organized, logical, prompt, alert, oriented, rational, and goal-directed.  She also found that there was no evidence that decedent had any active symptoms of a major illness, mental deficiency, or delusional beliefs.  Dr. Yarosh testified that decedent was logical in his responses and that, to a reasonable degree of medical certainty, decedent was quite capable of testamentary capacity.

Only Dr. Gomez expressed an opinion that decedent was not competent to make a will or a trust on or after January 17, 2002.  But Dr. Gomez’s opinion was impeached by his admission that he had not examined decedent for testamentary capacity and that he did not know the requirements under Minnesota law for a person to be considered competent to execute a will.  Dr. Gomez ultimately admitted that he was not in a position to opine whether decedent was competent to execute a will.


The record clearly supports the findings of fact and the conclusion of the district court that decedent had testamentary capacity at the time he executed his will and trust of February 21, 2002, and that the documents should be admitted to probate.