This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








Estate of:  James H. Kayser, Decedent.



Filed June 28, 2005


Willis, Judge


Ramsey County District Court

File No. P1-03-5528


Nancy C. Lazaryan, 10734 West Lake Road, Rice, MN  56367 (pro se appellant)


William M. Kayser, 6408 81st Avenue North, Brooklyn Park, MN 55445 (pro se appellant)


Larry Neilson, Rooney & Neilson, Ltd., 1339 East County Road D, Vadnais Heights, MN  55109 (for respondent Estate of James H. Kayser)


            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a district court order dismissing appellants’ objections to the probate of a will and granting the request of the special administrator of respondent estate for a permanent injunction, appellants argue that the district court lacked jurisdiction to issue a permanent injunction and challenge the denial of their request to remove the judge who presided over the probate proceedings.  Appellants also argue that the district court’s findings of fact are clearly erroneous.  Because we find no error or abuse of discretion, we affirm.


On January 9, 2001, decedent James H. Kayser executed his last will and testament.  He died on June 3, 2003.  In his will, decedent devised 60% of the residue of his estate to his spouse, Jesusa Kayser, and 40% of the residue to his two minor children, Karen and Kenneth Kayser.  Decedent “specifically disinherit[ed] all other parties not specifically named” in his will.  This group of disinherited parties included his six adult children, two of whom are appellants Nancy Lazaryan and William Kayser. 

The nominated personal representative filed an application for informal probate of the will.  Appellants objected, arguing, inter alia, that decedent lacked testamentary capacity.  Special administrator Ronald Riach moved for summary judgment.  In May 2004, the district court granted his motion on some of the issues but denied his motion on the issue of testamentary capacity.

            Sometime before June 16, 2004, the locks on decedent’s homestead were changed and “no trespassing” signs were posted on decedent’s property.  On June 17, 2004, Evelyn Wallace, appellants’ mother and a former spouse of decedent, faxed Riach a letter claiming that she had taken possession of decedent’s homestead.  The next day, the district court granted Riach’s request for a temporary restraining order prohibiting Wallace and appellants from entering decedent’s homestead.  After a hearing, the district court issued a temporary injunction prohibiting Wallace, appellants, or their agents from entering decedent’s homestead.  Within a day or two after the issuance of the temporary injunction, appellants or their agents returned to decedent’s property and again changed the locks.

            On July 1, 2004, Wallace and appellants filed a lawsuit against the Ramsey County district court judge who had presided over the probate proceedings; Riach; and several other parties; alleging various violations of state law in connection with the issuance of the temporary injunction against Wallace and appellants.  That same day, appellants filed a request to remove the judge from the probate proceedings.  Their request ultimately was denied for failure to affirmatively show prejudice.

            At trial in August 2004, the district court heard testimony regarding decedent’s testamentary capacity from four witnesses.  The district court found that decedent had testamentary capacity when he executed his will and dismissed appellants’ remaining objections to the probate of the will.  The district court also determined that a permanent injunction was necessary to protect decedent’s homestead from damage caused by Wallace and appellants.  Appellants challenge on appeal the issuance of the permanent injunction, the denial of their request for removal, and the dismissal of their objections to the probate of decedent’s will.



            Appellants first challenge the permanent injunction prohibiting them from entering decedent’s property.  They do not dispute the district court’s findings regarding the injunction, nor do they directly question the propriety of the injunction.  Appellants instead raise several challenges to the district court’s jurisdiction to issue the permanent injunction.  Challenges to jurisdiction are questions of law, which this court reviews de novo.  See V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn. 1996).

A determination of the district court’s jurisdiction to issue the permanent injunction requires consideration of both venue and jurisdiction.  See In re Estate of Congdon, 309 N.W.2d 261, 265 (Minn. 1981) (analyzing venue and jurisdiction to determine the propriety of probate court’s orders).  The county of decedent’s domicile at the time of death is the proper venue for the “first informal or formal testacy or appointment proceedings.”  Minn. Stat. § 524.3-201(a)(1) (2004).  The district court has jurisdiction “in matters relating to the affairs of decedents.”  Minn. Stat. § 524.1-201(7) (2004).  It has jurisdiction, “[t]o the full extent permitted by the Constitution, . . . over all subject matter relating to estates of decedents, including construction of wills and determination of heirs and successors of decedents” and the “full power to make orders, judgments and decrees and take all other action necessary and proper to administer justice in the matters which come before it.”  Minn. Stat. § 524.1-302(a), (b) (2004).

At the time of decedent’s death, his domicile was in Ramsey County.  The district court in Ramsey County was, therefore, the proper venue for the informal probate proceedings.  When the nominated personal representative applied for informal probate, all “matters relating to the affairs” of decedent and his will came within the jurisdiction of the Ramsey County District Court.

Riach later sought injunctive relief to protect decedent’s homestead at 2516 Linwood Avenue East, Maplewood, from trespass and damage caused by Wallace and appellants.  Riach believed the property to be an asset of decedent’s estate.  The district court determined that decedent owned the 2516 Linwood property in fee simple because Wallace conveyed her interest in the property by executing a quit-clam deed in favor of decedent in 1978.  It also found that “prior to June 16, 2004, Evelyn Wallace, and/or [appellants] or their agents, without the knowledge or permission of the Special Administrator, changed the locks on Decedent’s homestead[,] posted the property with ‘no trespassing’ signs,” and inflicted “various acts of vandalism” on the homestead.  It concluded that neither Wallace nor appellants have a right to or interest in decedent’s homestead and that a permanent injunction is necessary because “[t]here is no adequate remedy at law” and “the threat of harm to [the homestead] is hardly speculative.”  Because the district court “has full power to make orders, judgments and decrees and take all other action necessary and proper to administer justice in the matters which come before it,” we conclude that it had jurisdiction to issue the permanent injunction.  See Minn. Stat. § 524.1-302(b).


            Appellants next challenge the district court’s denial of their request to remove the judge who presided over the probate proceedings.  The decision to grant a request for removal based on allegations of judicial prejudice is within the discretion of the district court, and we will not reverse absent an abuse of that discretion.  Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).

            Appellants filed their request for removal a month before the commencement of trial, after the judge had presided over numerous hearings in the probate proceedings.  A party must make “an affirmative showing of prejudice” to remove a judge who has already presided over motions or other proceedings in the matter.  Minn. R. Civ. P. 63.03. 

            Appellants argue that the judge was biased against them and that they were thereby denied their right to a fair and impartial trial.  They claim that the judge’s bias is demonstrated by her denial of several of their motions, the manner in which she conducted the proceedings, and the dismissal of their objections to the probate of decedent’s will.  Appellants also claim that the judge is biased because they have filed a lawsuit against her. 

            The record indicates that the judge granted appellants several continuances and gave them considerable latitude throughout the probate proceedings.  Although appellants were ultimately unsuccessful, the judge ruled in their favor on portions of Riach’s motion for summary judgment.  Another judge of the district court, who ruled on appellants’ removal request, noted that appellants filed their lawsuit “because they disagree with [the judge’s] legal rulings in the Probate lawsuit” and that to allow a party to remove a judge simply by suing that judge would “make a mockery of the rules, case law and statutes that provide for legitimate notices and motions to remove.”  We agree.  Because appellants have failed to make an affirmative showing of prejudice, we conclude that the district court did not abuse its discretion by denying appellants’ motion to remove.


Appellants also challenge the district court’s determination that decedent had testamentary capacity when he executed his will, arguing that the district court’s findings of fact are clearly erroneous.  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous . . . .”  Minn. R. Civ. P. 52.01.  A district court’s factual findings “must be manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole” to warrant reversal.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (quotation omitted).  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  But “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Rogers, 603 N.W.2d at 656.

To support its determination that decedent had testamentary capacity when he executed his will, the district court found that in the days immediately preceding the execution of the will, decedent was sober, alert, and oriented.  It also found that when decedent executed his will, decedent (1) was able to intelligently discuss the will and its contents, (2) was not confused, (3) discussed gifts that he had previously given to his adult children, (4) iterated his intent to provide for Jesusa Kayser, and (5) emphasized his desire to take care of his minor children.

The evidence reasonably supports the district court’s findings.  Expert witness Dr. Paul Reitman testified that after reviewing decedent’s medical records and decedent’s testimony from a March 2001 divorce hearing, he found nothing that led him to believe that decedent lacked testamentary capacity.  Dale Buttschau, decedent’s nephew, testified that he picked decedent up from the hospital a week before decedent executed his will and that decedent was alert and oriented, and that during the next few days, decedent did not exhibit any confusion, memory loss, or mental deficiency.  Riach testified that in the days before and at the execution of the will, he and decedent “intelligently” discussed several of decedent’s legal issues, including the disposition of his property.  Riach also testified that decedent knew the extent of his assets because he was identifying and gathering evidence in preparation for an upcoming dissolution trial and that decedent knew the identity of his family members and which of them might have claims against his estate.  Because the record reasonably supports the district court’s findings, we conclude that the findings are not clearly erroneous.