This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Estate of: Harold Peterson, Deceased
Lake of the Woods County District Court
File No. P8-04-09
Craig S. Hunter, Northland Law,
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,
Alan B. Fish, 109 Northeast Second Street,
Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, 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.
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,
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
(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.
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.
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.
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.
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
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.
courts presume that the legislature intended a statute to be
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
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.
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 (
Misrepresentations by notaries and witnesses are not without consequences. See