This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re: Estate of Vincent J. Villella, Decedent.

Filed January 13, 1998

Reversed and Remanded

Davies, Judge

Ramsey County District Court

File No. P4965616

C. Brent Robbins, Michael J. Smith, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. S., Bloomington, MN 55431-1194 (for appellant Gail Villella)

Margo L. Coyle, Darlene M. Cobian, Briggs and Morgan, P.A., 2200 First National Bank Bldg., 322 Minnesota St., St. Paul, MN 55101 (for respondent Vince J. Villella II)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Harten, Judge.



Appellant challenges the district court's order dismissing her petitions for formal probate of her husband's will, for formal appointment of a personal representative, and for elective share. We reverse and remand.


Appellant Gail Villella and decedent Vincent J. Villella were married in December 1971. They executed an antenuptial agreement by which they waived any rights to elect against the other's will and agreed to retain all rights in their own property.

In August 1990, decedent executed a will by which he left to appellant all real or personal property held jointly with her. He left his residuary estate, including three referenced parcels of real estate, to his five children by a previous marriage. In December 1990, decedent executed a family revocable trust to which he transferred the three parcels of property.

Following decedent's death in March 1996, appellant filed a notice of election and petitioned for formal probate of the will and appointment of a personal representative. Respondent Vincent J. Villella II, the personal representative named in the will, petitioned to dismiss appellant's petitions and notice of election. He alleged that appellant had consented to the transfer of the real estate parcels to the family trust, leaving nothing in the estate for appellant to elect against. He also asserted that the antenuptial agreement barred appellant from making an election.

In a scheduling order the court stated that it would consider only legal issues at a March 1997 hearing and identified two factual issues that were "reserved for hearing at a later date": (1) whether appellant gave her spousal consent to the transfer of the three parcels of property; and (2) the extent and valuation of the augmented estate. Notwithstanding this scheduling order, the district court, following the March 1997 hearing, dismissed appellant's petitions, making findings that appellant had consented to the transfer of the three parcels of real estate to the family trust and that there were no assets in decedent's augmented estate.


A district court order granting a motion to dismiss is reviewed as a motion for summary judgment if, as here, the court considered matters outside the scope of the pleadings. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993); Minn. R. Civ. P. 12.03.

On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The evidence is to be viewed in the light most favorable to the non-moving party. Id. "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993).

I. Was There Consent to Transfer?

When spouses have been married for 15 years or more, as here, the surviving spouse has a right to take an elective share equal to 50% of the deceased spouse's augmented estate. Minn. Stat. § 524.2-202(a) (1996). The augmented estate equals the value of all property that constitutes the deceased spouse's net probate estate, including the deceased spouse's nonprobate transfers to others. Minn. Stat. § 524.2-203 (1996). A nonprobate transfer to others is not included in the augmented estate "if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse." Minn. Stat. § 524.2-208(a) (1996). Appellant argues that she did not join in or consent to transfer of the three parcels to the family revocable trust and that the property is therefore part of the augmented estate and subject to a spousal right of election.

The record shows that parcel A (Lot 5, Block 1, Shirley's and Lee's Addition, Ramsey County, Minnesota) and parcel C (the East one-half of Lots 1 and 2, Block 2, Clarke & Kings Garden Tracts, Hennepin County, Minnesota) were conveyed by undated warranty deeds signed by Gail H. Villella on December 12, 1989, at which time the grantee was blank. The name of the grantee (co-trustees of the Villella family revocable trust) was added and the deeds signed by Vincent J. Villella on December 27, 1990.[1]

For parcel B (Apartments 1489-3 and G-35, Pike Lake Manors Condominium, Apartment Ownership No. 55, Ramsey County, Minnesota) the record shows a

warranty deed dated March 20, 1991, conveying the parcel to the co-trustees of the Villella family revocable trust, signed by Vince Villella, Sr. (sic), and Gail Villella (sic) on March 20, 1991. By signing this deed, appellant consented, for purposes of Minn. Stat. § 524.2-208(a), to the transfer of parcel B to the Villella family trust. Although appellant claims she did not consent to the transfer because she "had no knowledge of the contents of or the disposition provided by the Revocable Trust," the grantee entity was fully identified on the deed as Vincent J. Villella and Vincent J. Villella II, as co-trustees of the Villella family revocable trust. That is enough.

The same, however, is not true for the other two parcels. In December 1989, when appellant signed the deeds for parcels A and C, neither deed named a grantee. Appellant's signing of each of these deeds cannot be converted into a consent

to transfer the parcels to a trust that was not named as grantee on either deed (and was

not even in existence as a legal entity until a year after the deeds were signed). To have consented, appellant must have known the name of the person or legal entity to whom the property was being transferred at the time she signed. We hold that the district court erred in determining that appellant joined in or consented to the transfer of parcels A and C to the family revocable trust.

II. Are There Other Assets in Augmented Estate?

According to the court's scheduling order, the fact issue of the extent and valuation of the augmented estate was specifically reserved for a later time. Despite this, the court found that the "three parcels are the only assets that could constitute an augmented estate of the decedent."

The evidence in the record does not support the court's finding. All that appears in the record are respondent's counsel's statements that there were no probate assets in decedent's estate. Statements of counsel are not evidence. Hopkins v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991).

Appellant, by affidavit, presented to the court a description of her own assets at the time of her husband's death. She asserts that these assets are part of decedent's augmented estate. See Minn. Stat. § 524.2-203 (subject to statutorily imposed limitations, augmented estate includes nonprobate transfers to others and surviving spouse's property). At the hearing, counsel for appellant also expressed the possibility that insurance and other assets existed in the augmented estate. We therefore hold that the district court made its determination as to the assets in the augmented estate on an incomplete record and prematurely, in light of the scheduling order.

On remand, the district court should determine whether there are any other deeds or written documents that evidence appellant's joinder in or consent to the transfer of parcels A and C. The court also should determine the extent and valuation of the

augmented estate, the applicability of the antenuptial agreement, if necessary, and address any other relevant issues.

Reversed and remanded.


Judge Jack Davies

January 2, 1998

[ ]1 Appellant argues that the materials presented by respondent as part of his petition to dismiss are not competent to support a summary judgment motion because they were not verified through affidavit or deposition testimony. See Itasca County Soc. Servs. v. Milatovich, 381 N.W.2d 497, 498 (Minn. App. 1986) (trial court erred in granting summary judgment based on report not in evidence or affidavit form). But the deeds include a certificate of acknowledgment executed by a notary public making extrinsic evidence of authenticity unnecessary. Minn. R. Evid. 902(8).