This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Estate of LeVern D. Young,

a/k/a LeVern Dona Young, L. D. Young, Decedent.


Filed July 3, 2007


Kalitowski, Judge


St. Louis County District Court

File No. 69DU-PR-06-182


Richard K. Sellman, Sellman Law Office, 1907 East Third Avenue, Suite 1, P.O. Box 37, Hibbing, MN 55746 (for appellant Jeff Young)


James Perunovich, Law Offices of James Perunovich, P.F., 402 East Howard Street, Suite 7, Hibbing, MN 55746 (for respondent Gayle Young-Draskovich)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Harten, 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 disallowing part of a handwritten addendum to decedent LeVern D. Young’s will, the personal representative argues that (1) the will is ambiguous as to what is meant by distribution of tangible personal property; and (2) the handwritten addendum should have been given effect because it revoked the residuary clause in the will by disinheriting two of the decedent’s children.  We affirm.


            Appellant argues that the district court erred in concluding that the will was not ambiguous and argues that the handwritten addendum was a proper revocation of the will.  Upon review, this court examines the district court’s findings to determine whether they are clearly erroneous and reviews conclusions of law de novo.  See In re Estate of Peterson, 579 N.W.2d 488, 490 (Minn. App. 1998) (applying de novo standard), review denied (Minn. Aug. 18, 1998); In re Estate of Simpkins, 446 N.W.2d 188, 190 (Minn. App. 1989) (applying clearly erroneous standard).

            Following execution of his Last Will and Testament in 1990, decedent LeVern Young drafted a handwritten document entitled “Addendum to Will per Article IV.” Article IV of Young’s will states “If I have made a list designating the distribution of some of my tangible personal property, then my personal representative shall distribute the items on that list first, and my remaining tangible personal property shall be distributed under the other provisions of this Will.”  The subsequent handwritten addendum includes four entries:  (1) each heir’s money was to remain invested with Hibbing Loan Company; (2) a gold diamond ring was to go to his son Jeff; (3) detailing his wishes regarding cremation and his funeral; and (4) “Delete Gayle A. Young & David L. Young from Article II.”


            Appellant argues that the district court erred in concluding that the language in Article IV is not ambiguous.  When construing a will, the court seeks to ascertain the testator’s actual intent, considering it in light of the surrounding circumstances at the time of its execution.  In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985).  If possible, the court should give effect to every provision.  In re Will of Wyman, 308 N.W.2d 311, 315 (Minn. 1981).  Whether the language of a will is ambiguous is a question of law.  In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn. App. 1992).  If no ambiguity exists, the court will not consider extrinsic evidence.  Arend, 373 N.W.2d at 342.

            Appellant argues that Article IV of Young’s will is ambiguous because in referring to a “distribution” it did not follow the language of Minn. Stat. § 524.2-513 (2006), which provides that “A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money and coin collections, and property used in trade or business.”  Id. (emphasis added).   Appellant argues that, in the eyes of a layperson, the words “distribution” in Article IV of Young’s will, and the word “dispose” from the statute, could be construed by the testator as giving him implicit authority to change, on a list, the persons entitled to receive his estate—the distribution.  We disagree.

            “[W]here a will is drafted by a lawyer, technical terms should be construed in their usual technical sense.”  Zagar, 491 N.W.2d at 916.  In the context of Article IV of Young’s will, the terms at issue deal solely with the distribution and disposal of tangible personal property.  The will unambiguously states “a list designating the distribution of some of my tangible personal property.”  Further, the statute refers solely to the disposal of tangible personal property.  Therefore, we conclude that the district court did not err in determining that the language of the will was unambiguous.         


            Appellant argues that the handwritten “Addendum to Will” revoked that part of the residuary clause regarding distribution of his estate to his children Gayle and David Young.  Under Minnesota law, “a will or any part thereof is revoked:  (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency”; or (2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction.  Minn. Stat. § 524.2-507(a) (2006).  Here, Young did not burn, tear, cancel, obliterate, or destroy his will.  Therefore, the question is whether the handwritten addendum constituted a subsequent will or a codicil. 

            A codicil is a supplement or addition to a will that may explain, modify, add to, subtract from, qualify, alter, restrain, or revoke provisions in an existing will.  Black’s Law Dictionary 275 (8th ed. 2004).  Minnesota law defines “will” as including codicils.  Minn. Stat. § 524.1-201, subd. 56 (2006).  Therefore, a codicil must meet the same requirements for the execution of a valid will under Minn. Stat. § 524.2-502 (2006).  Every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.  See id. (emphasis added).

            Here, the handwritten addendum was signed by Young, but it was not signed by at least two witnesses.  Therefore, because the handwritten addendum does not satisfy the witness-attestation requirement, the district court did not err in determining that the language that purported to disinherit two of the decedent’s children is not a valid codicil and cannot be given effect. 



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