This opinion will be unpublished and

may not be cited except as provided by

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






In re the Estate of: Harold Peterson, Deceased


Filed June 6, 2006


Minge, Judge


Lake of the Woods County District Court

File No. P8-04-09



Craig S. Hunter, Northland Law, 11 East Superior Street, Suite 328, Duluth, MN 55802 (for appellant Margaret Wolf)


Robert M. Albrecht, Brink, Sobolik, Severson, Malm & Albrecht, P.A., P.O. Box 790, Hallock, MN 56728 (for respondent Humane Society)


Mike Hatch, Attorney General, Blaine Markuson, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (Intervenor)


Steven M. Shermoen, P.O. Box 1152, International Falls, MN 56649 (for personal representative David Marhula)


Alan B. Fish, 109 Northeast Second Street, Roseau, MN 56751 (for devisee Mike Reed)


            Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.*



U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges the admission of decedent’s will for probate and the constitutionality of the self-proved-will statute, Minn. Stat. § 524.3-406(b) (2004).  Because appellant provides no basis for challenging the will except for the signature requirements, and because the statute does not limit challenges to the substance of the will, we affirm.


            Decedent Harold Peterson contacted attorney Michael Grover by letter dated July 7, 2003, seeking estate-planning services.  Because Peterson was ill, Grover visited Peterson at his home to discuss drafting a will.  Peterson indicated that he wished to leave the bulk of his estate to a charitable, animal-welfare organization and that although he had relatives, none was close and he did not intend to include them in his will.  Peterson decided to name the Lake of the Woods Humane Society as a beneficiary in his will.

            Grover completed a draft will, which included self-proved language, and sent it to Peterson for review.  After making changes requested by Peterson, Grover contacted him about executing the will.  Citing health reasons, Peterson declined to come to Grover’s office to execute the will.  Therefore, Grover sent Peterson a letter with instructions for proper execution of the will, advising Peterson that he must sign the will in the presence of two attesting witnesses.  Peterson informed Grover that he had lined up reliable people who would assist in the execution of the will.  Grover mailed the will to Peterson on October 13, 2003.  The self-proving language in the will is identical to the language in Minn. Stat. § 524.2-504(b) (2004) for such wills.

            On October 21, 2003, David Marhula, Peterson’s friend and the personal representative named in the will, went to Peterson’s home to review the will with him.  Because Peterson was ill and did not wish to be seen in public, he and Marhula contacted Charles Tischart, Peterson’s long-time friend, a banker and a notary, and requested that he come to Peterson’s residence to participate in executing Peterson’s will.  Tischart told Marhula that he was familiar with Peterson’s signature, which was on record at the bank.  Tischart directed Marhula to have Peterson sign the will and bring it to the bank where Tischart would compare the signature with the card on file, have two bank employees witness the will, and notarize it.  Peterson proceeded to sign the will and rode with Marhula to the bank where Tischart worked.  While Peterson stayed in the car, Marhula took the signed will into the bank, Tischart notarized it and two other bank employees signed as witnesses.  Everything was signed and dated on October 21, 2003.  Peterson died one month later. 

            The will was admitted to probate.  Appellant Margaret Wolf, a relative of decedent, learned of the circumstances surrounding its execution and moved to vacate the order admitting the will to probate.  Appellant alleged that Peterson’s will was not properly executed and that Minn. Stat. § 524.3-406(b) (2004), is unconstitutional to the extent it precluded her from challenging the execution and validity of a self-proved will.  The district court granted summary judgment dismissing appellant’s challenges to the will and the statute.  This appeal followed. 


            On appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03.  The court will view the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  When the district court grants summary judgment by applying a statute to undisputed facts, this court will review such action de novo.  Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).


            The first issue is whether the district court correctly applied the statutory presumptions favoring self-proved wills to the undisputed facts of this case.  Appellant contends that Peterson’s will is invalid as a matter of law because execution of the will did not comply with the statutory requirements.  Respondent argues, and the district court agreed, that the self-proved-will statute precludes the court from asking whether the signature requirements were satisfied.

            The execution requirements of Minnesota probate law are largely based on the Uniform Probate Code.  See Minn. Stat. § 524.1-101 (2004).  They include the following:

[A] will must be:

                                    . . .

(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction or signed by the testator’s conservator pursuant to a court order under section 524.5-411; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in clause (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.

Minn. Stat. § 524.2-502 (2004).  A will becomes self-proved if the testator includes a specifically worded acknowledgement and the witnesses’ signatures are part of an affidavit stating that “each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing.”  Minn. Stat. § 524.2-504(a) (2004).

            Including self-proved language means that compliance with certain execution requirements is conclusively presumed.

If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.

Minn. Stat. § 524.3-406(b) (2004).  The comment to section 3-406 of the Uniform Probate Code states that if a will is self-proved, questions of whether the witnesses actually signed the will in the presence of the testator are precluded.  Unif. Probate Code § 3-406 cmt., 8 U.L.A. 85 (1998). 

            This court considered the reach of the conclusive presumption of section 524.3-406(b) in In re Estate of Zeno, 672 N.W.2d 574 (Minn. App. 2003).  In Zeno, the record demonstrated that neither witness signed the will in the presence of the testator, nor saw her sign the will, nor was present when the will was notarized, and that the testator never acknowledged her signature to them.  Id. at 576.  The district court determined that the will did not comport with the execution requirements of Minn. Stat. § 524.2-502 because it was not signed or acknowledged in the presence of the witnesses, even though the self-proved acknowledgment and affidavit indicated otherwise.  Id.  This court reversed: “Because the will at issue contains the self-proving provisions contained in Minn. Stat. § 524.2-504 and because signature requirements stated in that section are conclusively presumed, questions concerning whether the witnesses signed in the presence of the testator are precluded.”  Id. at 578.

            Citing In re Estate of McCue, 449 N.W.2d 509 (Minn. App. 1990), appellant argues that this court previously rejected a self-proved will with signature irregularities, and we should do the same here.  In McCue, the testator changed his will to virtually disinherit one son after the other son visited the testator in the nursing home.  Id. at 510-11.  After the testator’s death, the witnesses stated that they did not recall meeting the testator and may only have witnessed the signature of the notary, who in turn stated that she probably notarized the will at the request of a third party.  Id.  This court noted that the district court in McCue was never presented with the argument that proper execution was presumed because the will was self-proved or allegations that fraud or forgery rebutted the presumption of proper execution, and, therefore, this court did not consider such arguments.  Id. at 512.  We remanded for a hearing on claims of undo influence and lack of testamentary capacity, as well as a determination as to whether the conclusive presumption of proper execution applied.  Id. at 512-13.  McCue did not evaluate the effect of the self-proving will statute.[1]  See id.

            Here, appellant alleged that probate of the will perpetrated a fraud.  Appellant contends that fraud is present because the witnesses signed the will and affidavits with self-proved language and then recanted.  Zeno indicates that this is not proof of fraud.  See 672 N.W.2d at 578.  This case is similar to Zeno, but with the added fact that here the notary did not personally see Peterson sign or speak with him.  See id. at 575-76.  However, the notary did not sign nor notarize the will until after he verified the signature was Peterson’s by using the bank’s signature card for comparison. 

The statute provides that proof of fraud or forgery may invalidate the self-proving provision of the will.  Minn. Stat. § 524.3-406(b).  Although the notary and the witnesses in the case before us misrepresented the witness/notorial function, it is not necessarily “fraud.”  Fraud requires an intentional misrepresentation that is intended to induce another to act in reliance on the misrepresentation.  Davis v. Re-Trac Mfg. Corp., 276 Minn. 116, 117, 149 N.W.2d 37, 38-9 (1976).  Simple misrepresentation by the witnesses and notary as to the particulars of their signing is not open to inquiry under the probate statute.[2]  In reaching this conclusion, we note that we are not faced with and do not address issues related to the testator’s signature.  We recognize that such signature questions may involve considerations that go beyond those involved in the case before us.  We also note that although the signature requirements for the notary and witnesses are conclusively presumed, all other execution requirements are presumed, subject to rebuttal.  Minn. Stat. § 524.3-406(b).  For example, evidence of lack of testamentary capacity or proof of undue influence may rebut a presumption of due execution.  Therefore, because the conclusive presumption in Minn. Stat. § 524.3-406(b) forecloses a challenge to the representation by the witnesses and notary that they saw the testor sign or acknowledge his signature, we conclude that the district court did not err in denying appellant’s motion for summary judgment to vacate the order probating Peterson’s will.


            The second issue is whether the district court erred as a matter of law in determining that the self-proved-will statute is constitutional.  This court reviews constitutionality challenges to statutes de novo.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  The party challenging the constitutionality of a statute bears the heavy burden of demonstrating that it is unconstitutional.  State v. Clausen, 493 N.W.2d 113, 115 (Minn. 1992).  Unconstitutionality must be demonstrated beyond a reasonable doubt.  McGuire v. C & L Rest., Inc., 346 N.W.2d 605, 611 (Minn. 1984).

            The courts presume that the legislature intended a statute to be constitutional.  Minn. Stat. § 645.17(3) (2004); see In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (“Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”).  Unless a constitutional challenge involves a suspect classification or a fundamental right, the challenge is reviewed under a rational-basis standard under both the state and federal constitutions.  Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn. 2002).  Administrative ease is sufficient justification for legislative action under the rational-basis standard.  Bituminous Cas. Corp. v. Swanson, 341 N.W.2d 285, 289 (Minn. 1983).

            Appellant urges that the statute deprives her of a procedural due process right to establish that the statutory requirements for execution of a will were not followed.  Appellant has not shown that she has any constitutionally protected interest insuring that the notary or witnesses comply with the requirements of the law for execution of wills.  The legislature established both the formalities for the roles of witnesses and notaries and the conclusive presumption.  They are part and parcel of the Uniform Probate Code and are designed to simplify administration.  Appellant points to cases striking down as unconstitutional conclusive presumptions in other areas.  See Heiner v. Donnan, 285 U.S. 312, 329, 52 S. Ct. 358, 362 (1932).  These cases involve certain interests that litigants have in presenting a criminal defense or establishing their innocence.  See Clausen, 493 N.W.2d at 115 (articulating general rule for evaluating due process challenge to statutes but holding statute constitutional); State v. Kelly, 218 Minn. 247, 250-51, 15 N.W.2d 554, 557 (1944).  In civil litigation, due process has been applied to questions such as parental rights and allowing for creditors’ claims in probate proceedings.  See Stanley v. Illinois, 405 U.S. 645, 649, 92 S. Ct. 1208, 1211 (1972) (parental rights); In re Estate of Thompson, 484 N.W.2d 258, 260-61 (Minn. App. 1992) (creditors’ claims). 

            The case before us is distinguishable from the caselaw relied on by appellant.  We are dealing with the formalities for signing a will, proving who signed and the circumstances of signing.  Here, the testator’s signature, intent, and capacity are not at issue.  Because the statute promotes a rational purpose of simplifying the probate of estates and because the statute does not limit a party’s ability to challenge the capacity of the testator or the testator’s assent to the contents of the will, we conclude the district court did not err in holding Minn. Stat. § 524.3-406(b) constitutional.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note there is a difference between a self-proved will establishing “a prima facie case of due execution” and a conclusive presumption of due execution.  See In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn. 1981) (using the prima facie phraseology).  This distinction was not considered in the Congdon case.  Id.  There, the party challenging the will only claimed that a self-proved will was not prima facie proof of due execution, and the court limited its brief comment to the challenger’s argument.  Id.

[2] Misrepresentations by notaries and witnesses are not without consequences.  See Minn. Stat. § 609.65 (2004) (punishments for false certification by notary public).