may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Estate of:
Elmer E. Olson.
Filed August 12, 1997
Chisago County District Court
File No. P193660
Michael A. Broback, Broback Law Firm, 3300 Edinborough Way, Suite 400, Edina, MN 55435 (for appellant Gene Rechtzigel)
James F. Schneider, Butts, Sandberg and Schneider, 155 S. Lake St., Forest Lake, MN 55025 (for respondent estate)
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Schultz, Judge.[*]
Appellant contested decedent's will. The trial court found that the will was duly executed and ordered judgment for respondent estate. The trial court denied appellant's motion for a new trial or in the alternative for amended findings of fact, conclusions of law, and order for judgment. Because we see no clear error in the trial court's finding that the will was duly executed, we affirm.
Johnson and Zimmerman met with Elmer Olson about February 13, 1992, at the nursing home. After the meeting, Johnson took his notes back to his office, used them to write out a will in longhand, and gave the will to his secretary to type.
On February 26, Johnson brought the will to Elmer Olson at the nursing home. Elmer Olson read the entire will. Then two witnesses, the nursing home social services director and a social worker, came into Elmer Olson's room to witness the signing. One witness was very familiar with Elmer Olson's signature because she helped him pay his bills each month. Johnson notarized the signatures. Johnson left the signed will with Elmer Olson and took an unsigned copy to his office.
Millard Olson, Elmer Olson's younger brother, later drove Elmer Olson to the bank so he could put the signed will into his safe deposit box and remove his 1986 will. Millard testified that Elmer destroyed the 1986 will. Elmer Olson died on April 28, 1993. Johnson contacted Millard Olson, who was the personal representative; Millard went to the bank and retrieved the will from the safe deposit box. Millard Olson testified that the signed 1992 will Elmer placed in the safe deposit box was the one Millard removed from the safe deposit box after Elmer's death.
The will left $5,000 to each of Elmer Olson's five living siblings, $5,000 to the children of each of his two deceased siblings, and the remainder of his assets to be equally divided between two churches. The will is three pages long: page one contains the dispositions to family members with space for signature at the bottom of the page, page two contains the disposition to the churches with space for signature about the middle of the page, and page three is the attestation page.
Appellant Gene Rechtzigel, Elmer Olson's nephew, brought this action contesting the will on the basis of failure to meet the statutory requirements for due execution, lack of testamentary capacity of the decedent, fraud, and undue influence. Following trial, the court issued findings of fact and conclusions of law that respondent had proved Olson's testamentary capacity and proper execution of the will and that appellant had failed to prove fraud or undue influence. Appellant moved unsuccessfully for a new trial or in the alternative for amended findings of fact, conclusions of law, and order for judgment. On appeal from the denial of that motion, appellant challenges only the district court's finding that the will was duly executed.
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 acknowledgement 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) (1990).
[W]hen a will contains an attestation clause regular in form, and the signatures of the testator and the witnesses are genuine, the will is presumed to have been duly executed and the contestant has the burden of proving that it was not properly executed.
However, even though such a will carries with it a presumption of due execution, it is still a question of fact whether the will was executed in the manner required by law.
Johnson v. Heltne, 298 Minn. 187, 190, 214 N.W.2d 224, 226 (1974) (citations omitted). "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous * * *." Minn. R. Civ. P. 52.01. The trial court found that the will was executed by Elmer Olson and witnessed by the two witnesses.
Appellant contends that even if respondent made a prima facie case of due execution, appellant effectively rebutted it. Appellant introduced as an expert witness a forensic document examiner whose testimony provided the two bases for appellant's challenge to the due execution. The expert testified that the ink with which the testator signed page two of the will was not the same as the ink with which he signed pages one and three and that the names of the witnesses typed under their signatures had been typed after some previous type was lifted off the page.
The trial court noted that neither party presented evidence concerning the different ink. Appellant argues that the different ink was proof of forgery, but presents no evidence and does not argue that any of the decedent's three signatures was forged. In itself, the fact that different ink was used to sign one page does not implicate the execution or the validity of the will.
Similarly, the fact that type had been lifted off the page under the witnesses' signatures before the witnesses' names were typed does not defeat the statutory presumption of valid execution. There is no requirement that type may not be lifted off a page and replaced any more than there is a requirement that all signatures be in the same ink. The court's decision that the variation in the ink and the lifted type did not rebut the presumption of proper execution is not clearly erroneous.
Moreover, the presumption of due execution was supported by the testimony of the two witnesses. The witness who was very familiar with Olson's signature testified that she had signed the will in two places on page three, that she had observed the other witness sign, that she had observed Elmer Olson sign page three on page three, that she was certain Elmer Olson signed his name on page two, that Elmer Olson's signature was on page two, that Elmer Olson's signature was on page one, and that she had observed him sign page one. The other witness testified on direct examination that she signed page three in two places, that she observed the other witness sign it in two places, that she went to Elmer Olson's room to observe him sign the will, that she observed him sign the will, and that to the best of her recollection, he signed the will. On cross-examination, she stated that she could not specifically say how many times Elmer Olson signed the will.
We know of no rule of law which makes the probate of a will depend upon the recollection, or even the veracity of a subscribing witness. * * * Their evidence is not conclusive either way * * *.
Johnson, 298 Minn. at 191, 214 N.W.2d at 226-27. The testimony of the two witnesses, even though one was not certain how many times she had seen Elmer Olson sign the will, does not rebut the presumption of due execution.
The court's finding that Elmer Olson's will was duly executed is not clearly erroneous.
[ ]*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1Appellant cites Minn. Stat. § 524.3-407 (1990), providing that "[p]roponents of a will have the burden of establishing prima facie proof of due execution in all cases" to argue that respondent had the burden of proving due execution. However, the fact that this is a self-proved will provides a conclusive presumption that the signature requirements were complied with. Minn. Stat. § 524.3-406(b).
[ ]2Respondent conjectured that the testator signed page one of the will where his name was typed at the bottom of the page, then looked at the bottom of page two, saw it was blank because the signature line was only midway down the page, and turned to page three, which he signed. When it was noticed that he had not signed page two, he was handed a different pen with which to sign it. This explanation, while plausible, is only conjecture: our conclusion that the different ink is irrelevant to the due execution of the will is entirely independent of the conjecture.
[ ]3The court also noted that the names originally typed under the witnesses' names were visible and were the names of the attorney's secretaries. Respondent conjectured that the secretary who first typed the will did so assuming that it would be executed in the attorney's office where the secretaries would witness it. On learning that it would be executed at the nursing home, the names of the secretaries were removed and those of the witnesses typed in. Again, our decision rests not on this admittedly plausible explanation but on the fact that lifting type from a page of a will does not render the will incapable of being duly executed.