This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Estate of Howard C. Kinney, Deceased.
Filed July 3, 2006
Ramsey County District Court
File No. 62-PR-04-5681
Mary R. Vasaly, Dawn C. Van Tassel, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s grant of summary judgment and order invalidating an antenuptial agreement because respondent was not advised of her right to seek independent legal counsel before signing the agreement, appellant argues that (1) the district court erred by failing to apply the common law as it existed in 1969, and (2) a genuine issue of material fact exists regarding respondent’s opportunity to seek the advice of counsel. We affirm.
C. Kinney’s first wife died intestate in 1967 leaving behind an estate worth
approximately $175,000. As a result of
her death, Howard inherited a one-third ownership interest in farmland located in
Howard and respondent were married on August 29, 1969. At the time, respondent was 45 years old and had never been married. On the morning of the wedding, Howard took respondent to his attorney’s office. Respondent had never met or heard of Howard’s attorney. Respondent was presented with an antenuptial agreement, which stated that respondent agreed to waive her right to inherit from Howard upon his death. In return, respondent would receive the proceeds of a $10,000 life insurance policy upon Howard’s death. The agreement also provided that respondent acknowledged that Howard had disclosed to her that he had a net worth of approximately $200,000. By signing the agreement, respondent acknowledged that she was entering the agreement freely and with a full understanding of its provisions. Respondent was not advised by Howard or his attorney that she should ask another attorney to review the document before signing it; and neither of them explained to her any rights she would be giving up by signing the agreement.
Howard passed away on July 3, 2004. Howard’s son, James Kinney, was appointed the executor of his estate. Respondent filed a claim for an augmented share of the estate, family maintenance, homestead rights, and a selection of personal property. Cross-motions for summary judgment were filed, and the district court entered summary judgment in favor of respondent concluding that while respondent had sufficient knowledge of Howard’s estate prior to signing the agreement and that there was sufficient consideration for the agreement, she was not provided with the opportunity to consult with independent legal counsel prior to signing the agreement. This appeal follows.
D E C I S I O N
“On an appeal from summary judgment,
we ask two questions: (1) whether there are any genuine issues of material fact
and (2) whether the [district court] erred in [its] application of the law.” State
by Cooper v. French, 460 N.W.2d 2, 4 (
Application of Law
Appellant first argues that the
district court failed to apply the common law as it existed in 1969. Parties to a marriage have long been able to
enter into enforceable antenuptial agreements.
Appleby v. Estate of Appleby,
The codification of Minn. Stat. §
519.11, subd. 1 (1980), changed the common law regarding antenuptial
agreements. Under the statute, parties
may enter into a “valid and enforceable [antenuptial contract] if (a) there is
a full and fair disclosure of the earnings and property of each party, and (b)
the parties have had an opportunity to consult with legal counsel of their own
Appellant argues that the
opportunity to consult with an attorney did not exist under common law, and,
therefore, the attorney who drafted the antenuptial agreement would not have
known that respondent was entitled to such a right. The Minnesota Supreme Court, however, held in
Serbus that “[u]nder both Slingerland and Minn. Stat. § 519.11,
subd. 1, each party to an antenuptial contract must also have an opportunity to
consult with an attorney.” Serbus, 324 N.W.2d at 386. Thus, the supreme court has interpreted the
common law to include the opportunity to consult with independent legal
counsel. Appellant argues that the
holding in Serbus is incorrect. But this
court is not in a position to
disregard established supreme court precedent.
Here, Howard and respondent went to Howard’s
attorney on the morning of their wedding to sign the antenuptial
agreement. While respondent claims that
she read the document before signing, did not ask for more time to review the
agreement, and felt that she was able to sign it, she was not represented by
independent legal counsel with respect to the drafting or signing of the
agreement. There is no evidence that
respondent was given an opportunity to consult with independent legal counsel before
signing the agreement. The only contact
respondent had with an attorney was with the attorney who drafted the
agreement. The supreme court has
previously noted that “we have never held, nor are we prepared to do so now,
that an attorney should never represent both parties seeking an antenuptial
agreement.” McKee-Johnson v. Johnson, 444 N.W.2d 259, 266 (
Finally, appellant argues that the district court erred by concluding that the antenuptial agreement was invalid because Howard failed to inform respondent of her right to consult with independent legal counsel. Appellant claims that Serbus spoke only to the opportunity to consult with independent legal counsel, and that does not mean that the proponent of the agreement must inform the opponent of this right or to furnish counsel for the soon-to-be spouse. The attorney who drafted the antenuptial agreement failed to inform respondent of the widow’s rights she was giving up by signing the agreement or even ask her whether she would like the opportunity to meet with separate legal counsel prior to signing the agreement. There is no evidence that before the meeting respondent knew that she had a right to consult with independent legal counsel before signing the agreement or that anyone even asked her if she wished to do so. Without knowledge, the opportunity does not exist.
Genuine Issues of Material Fact
Appellant next argues that the evidence, when viewed in a light most favorable to appellant, shows that respondent had an opportunity to seek independent legal counsel. Appellant argues that the evidence shows that respondent and Howard discussed the agreement before their wedding day, and that respondent knew of Howard’s plans to preserve his assets for his children, even if she did not see the actual agreement until the morning of the wedding. The district court found that:
The evidence tends to show that [respondent] discussed the general terms of the antenuptial contract with the decedent prior to the wedding, that [respondent] read the entire contract prior to signing it, that [respondent] understood the purpose of the contract was to preserve decedent’s assets for his children, and that [respondent] understood she would receive none of decedent’s assets at his death other than what was stated in the contract.
While the evidence supports the argument that respondent understood that Howard intended to preserve certain assets for his children, there is no evidence to support the argument that respondent knew that Howard was drafting an antenuptial agreement to that effect. In fact, the evidence shows that respondent claims she knew nothing about the antenuptial agreement until she arrived at the attorney’s office on the morning of the wedding. Because the antenuptial agreement was first presented to respondent on the morning of the wedding and because she was unaware of her right to consult independent legal counsel regarding the agreement and did not have an opportunity to do so, the district court did not err in granting summary judgment in favor of respondent.