This opinion will be unpublished and

may not be cited except as provided by

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






In re: Estate of Willard P. Johnson
a/k/a Paul Willard Johnson, Deceased.


Filed September 12, 2006


Stoneburner, Judge


Wright County District Court

File No. P1042125


Kenneth H. Bayliss, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302-1008; and


Gordon Raisanen, Raisanen & Associates Law Firm, Ltd., 15725 U.S. Highway 12 Southwest, Cokato, MN 55321 (for appellants)


Larry N. Jensen, Thomton, Sperry, Jensen & Keithahn, Ltd., 329 East Highway 12, P.O. Box 841, Litchfield, MN 55355 (for respondents John and Darlene Lind)


Sheldon R. Brown, Young, Brown & Pagel, L.L.P., 63 Oak Avenue South, P.O. Box 859, Annandale, MN 55302 (for respondents Byron and Janet Sangren)


††††††††††† Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D† O P I N I O N




††††††††††† Appellants challenge admission of decedentís 2004 will to probate, arguing that the district courtís finding that decedent possessed testamentary capacity when the will was executed was clearly erroneous.† Because the record supports the district courtís finding of testamentary capacity, we affirm.



††††††††††† Decedent Paul Willard Johnson and his wife Clarine Johnson had no children.† Appellants Howard Jorgenson and Linda Dean, who have lived in California for many years, are decedentís nephew and niece and were his only living relatives at the time of his death.† Respondents Byron and Janet Sangren and John and Darlene Lind are beneficiaries under the contested will.†

††††††††††† In January 1998, the Johnsons, assisted by probate attorney Jean Paulson, executed wills.[1]† In relevant part, decedentís 1998 will specifically excluded appellants and provided that if Clarine Johnson predeceased him, Charles Melin, named personal representative, would inherit the entire estate.[2]† Melin, a neighbor, had worked on the Johnson farm and was close to the Johnsons.† Clarine Johnson had told people that Melin was like a son to her.†

††††††††††† During the last two years that the Johnsons were on the farm, Melin became busier with his own family and job, and stopped assisting the Johnsons.† After the Johnsons moved into town, Melin only saw them twice. †In 2000, the Johnsons revised their wills.† In relevant part, decedentís 2000 will specifically excluded appellants and provided that if Clarine Johnson predeceased him, 50% of the estate would go to Melin and 50% would go to Byron Sangren, the named personal representative.† Sangren was a long-time friend of the Johnsons.† After the Johnsons moved from the farm to town, Sangren and his wife helped the Johnsons with errands and socialized with them regularly.† Decedent trusted and depended on Sangren and, in conjunction with making the 2000 will, decedent named Sangren as attorney in fact.[3]†Sangren did not use the power of attorney until decedent was hospitalized in May 2004.

††††††††††† On March 1, 2004, the Johnsons again revised their wills.† They met with attorney Paulson and told her that they wanted to remove Melin from their wills because he no longer assisted them, and they wanted to add John and Darlene Lind.† The Linds were friends who saw the Johnsons frequently, socialized with them, and assisted them in their last years.† In relevant part, decedentís 2004 will specifically excluded appellants and provided that if Clarine Johnson predeceased him, 50% of the estate would go to John and Darlene Lind, or the survivor of them and 50% to Sangren, or if he did not survive decedent, to his wife, Janet Sangren.† Sangren was named as personal representative and he retained power of attorney.

††††††††††† Clarine Johnson died on May 23, 2004, and decedent died on June 5, 2004.† Appellants objected to the petition to admit decedentís 2004 will to probate, asserting that decedent lacked testamentary capacity when he executed the will.† After a court trial, the district court issued its order finding that decedent possessed testamentary capacity at the time he executed the 2004 will and ordered the will admitted to formal probate.† The district court denied appellantsí post-trial motions, and this appeal followed.



††††††††††† ďOn appeal from a probate courtís decision, . . . [the courtís] findings of fact will be disturbed only if clearly erroneous.Ē† In re Olsen,357 N.W.2d 407, 411 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985).† ďFindings are Ďclearly erroneousí only if Ďthe reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.íĒ †In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986) (quoting In re Congdon, 309 N.W.2d 261, 266 n.7 (Minn. 1981)).† ďIt is well-settled that the evidence and the inferences must be viewed in the light most favorable to the trial courtís decision.Ē† Id.ďThe contestants of a will have the burden of proving lack of testamentary capacity. . . .Ē† Olsen, 357 N.W.2d at 411.†

††††††††††† ďExecution of a valid will requires that the testator have testamentary capacity at the time of execution.Ē† Anderson, 384 N.W.2d at 520.

A testator will be found to have testamentary capacity if, when making the will, he understands ďthe 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.Ē


Id.(quoting In re Prigge, 352 N.W.2d 443, 444 (Minn. App. 1984)).† Factors to be considered in determining whether a testator possesses testamentary capacity include (1) the reasonableness of the property disposition; (2) the testatorís conduct within a reasonable time before and after executing the will; (3) a prior adjudication of the testatorís mental capacity; and (4) expert testimony about the testatorís physical and mental condition.† Id.In this case, there was no prior adjudication of decedentís mental capacity, so we turn to an examination of the remaining factors.

I.††††††††† Reasonableness of property disposition

††††††††††† Appellants do not specifically challenge the reasonableness of decedentís property disposition.† The record demonstrates that they were excluded from all of decedentís wills, and there is nothing in the record to indicate that they claim that decedent lacked testamentary capacity at the time he executed his 1998 and 2000 wills.† The record reflects that the Johnsons intended to provide for each other and, beyond that, to leave their estate to the people who were close to them and who provided assistance to them.† Attorney Paulson testified that because the Johnsons had progressively removed Melin from their wills, she was not surprised by the change in 2004.† This factor supports the district courtís determination that decedent did not lack testamentary capacity when he executed his 2004 will.

II.††††††† Testatorís conduct within a reasonable time before and after will execution

††††††††††† Appellantsí main contention is that their evidence of decedentís conduct before and after execution of the 2004 will unequivocally demonstrates that decedent lacked testamentary capacity at the time he executed the will.† Appellantsí witnesses testified that in their interactions with decedent he appeared disoriented, out of touch, and engaged in unusual behaviors as early as 2003.† But the record also contains evidence found credible by the district court that despite decedentís frail physical health and deafness, he was alert and oriented until just before his death.† Appellants appear to ask this court to reweigh the evidence and the credibility determinations of the district court to conclude that the district court abused its discretion by discrediting their witnesses and crediting the witnesses whose testimony supported its finding of testamentary capacity.†

††††††††††† Appellants misperceive the role of the appellate court and our standard of review.† As noted above, the evidence and inferences must be viewed in the light most favorable to the trial courtís decision.† Anderson, 384 N.W.2d at 520.† And ď[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.Ē† Minn. R. Civ. P. 52.01.

††††††††††† Our review of the evidence of decedentís conduct within a reasonable time before and after the will was executed that supports the district courtís findings reveals more than sufficient evidence to support a conclusion that this factor favors a finding of testamentary capacity.†

††††††††††† Attorney Paulson first met decedent in 1997 when she assisted with the probate of decedentís sisterís estate.† Paulson assisted the Johnsons with all of their wills.† Although she was not familiar with decedentís medical problems, she testified that when she met with the Johnsons on March 1, 2004, decedent did not appear pressured, confused, anxious, or disoriented.† She testified that, in her opinion, decedent was capable, confident, and knew what he was doing on March 1, 2004.

††††††††††† Ron Salo, who first met decedent in either 2002 or 2003, is a former banker and the real-estate agent who listed and sold the Johnson farm.† Salo testified that he often drove decedent around town and that decedent had good vision and memory and could identify people.† Salo testified that he did not witness decedent having any cognitive problems.† Salo drove the Johnsons to their March 1, 2004 appointment with Paulson, but he did not know the purpose of their visit to the lawyer.

††††††††††† Byron Sangren and his wife, Janet, often had dinner with the Johnsons during the last years of their lives, and they saw the Johnsons at church.† Sangren and decedent also met and visited over coffee at the local coffee shop, served together on the church board, and occasionally fished together.† Sangren rented land from decedent, and even after decedent moved to a nursing home shortly before his death, decedent would remind Sangren to pay the rent.† Decedent handled his and his wifeís financial affairs until the beginning of May 2004.† Sangren testified that decedent discussed giving Sangren power of attorney, but Sangren gave conflicting testimony about whether the discussion occurred in 2000 at Sangrenís home or during a drive sometime after decedent moved to town.† Sangren, who testified that he did not know he was a beneficiary of the will until after decedentís death, testified that he did not observe decedent to be confused or disoriented.† Janet Sangren testified that she did not notice a decline in decedentís mental capacity between 1998 and 2004.† She testified that decedent was slower but not confused.

††††††††††† John Lind testified that after he retired, he and decedent visited and had good conversations.† Lind testified that decedent was aware of current events and was mentally capable until his death.† Lind testified that decedent managed his own financial affairs, including his checkbook, taxes, and bills.†

††††††††††† Darlene Lind, a registered nurse who has worked extensively with seniors, testified that decedent had some hearing loss, but understood very well and participated in conversations until his death.† She testified that he had acute vision, read until his death, kept up with current events, and was interested in public affairs.† She testified that he was sharp and alert, and she did not see symptoms of dementia or Alzheimerís disease.† Darlene Lind testified that she saw decedent around the date that the will was executed, and she opined that he understood what he was doing and the nature and extent of his assets and that he recognized people.† She had no doubt that decedent was competent and cognitive.†

III.†††††† Expert testimony about testatorís physical and mental condition

††††††††††† The record shows that decedent suffered from a number of physical ailments, including a ďfrozen shoulderĒ and Parkinsonís disease.† Decedent was taking approximately 14 medications, and there is evidence that he was sometimes confused about his medications. †But there is no direct evidence that decedentís physical problems affected his testamentary capacity.

††††††††††† Dr. Warren Shepard, decedentís primary-care physician from 1996 to the spring of 2002, testified that he was treating decedent for Parkinsonís disease and senile dementia.† In his opinion, decedent did not have the capacity to make a will after 2002.† But Dr. Shepard, who did not have contact with decedent in the last years of his life, agreed that it was possible that decedent had lucid intervals and that he could have had such a lucid interval on March 1, 2004.†

††††††††††† Dr. Daniel Johnson, who was decedentís treating physician during the last years of decedentís life, testified that he was treating decedent for Parkinsonís disease and for memory-loss issues.† Dr. Johnson treated decedent on March 4, 2004, for cough and congestion.† Dr. Johnson was not able to give an opinion about decedentís alertness level or testamentary capacity, but stated that on March 4, 2004, decedent was not confused or disoriented.† The record of Dr. Johnsonís treatment of decedent on November 28, 2003, is the only medical record in evidence that mentions decedentís mental status.† The report, under the heading of ďpsychiatric exam,Ē describes decedentís behavior and thought processes as ďnormalĒ and his insight as ďgood.Ē

††††††††††† Appellants argue that Dr. Shepardís testimony was uncontroverted and unequivocally showed that decedent lacked testamentary capacity on March 1, 2004.† But Dr. Shepard did not treat decedent after 2002 and did not see him in March 2004.† ďExpert opinion testimony is not conclusive, but is merely to be weighed and considered by the trier of fact.Ē† Congdon, 309 N.W.2d at 267.† Appellants argue that this case is similar to Anderson,in which this court affirmed the district courtís finding that decedent lacked testamentary capacity.† Anderson, 384 N.W.2d at 521.† But Anderson merely stands for the proposition that when there is ample evidence in the record to support the district courtís finding, the finding will not be set aside by a reviewing court.† As we stated in Anderson,ďwhere evidence can support a finding either way, the trial courtís decision will not be reversed.Ē† Id.(citation omitted).† There is nothing about the expert testimony in this case that compels a finding that decedent lacked testamentary capacity on March 1, 2004.

††††††††††† Affirmed.

[1] The Johnsonsí wills were identical, each naming the other spouse as sole beneficiary and containing identical provisions if the spouse predeceased the testator.† The subsequent wills remained identical.

[2] Melin objected to decedentís 2004 will in district court but did not pursue an appeal.

[3] Melin had similarly been named attorney in fact when decedent made his 1998 will.† The 2000 power of attorney to Sangren revoked Melinís power of attorney.