This opinion will be unpublished and

may not be cited except as provided by

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




Estate of: Joseph G. Francis, Decedent.

Filed December 22, 1998


Amundson, Judge

Hennepin County District Court

File No. P1-97-0542

William J. Berens, Carol A. Peterson, Nicholas A. J. Vlietstra, Dorsey & Whitney LLP, 220 South Sixth Street, Suite 300, Minneapolis, MN 55402 (for appellants)

Bonnie M. Fleming, John F. Beukema, Brendan W. Randall, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



Before their marriage in November 1992, Joseph Francis and Pamela Boldenow (n/k/a Pamela Francis) signed an antenuptial agreement. The antenuptial agreement shows that, below the words, "In Presence of," Patricia Kessler's signature appears twice. Beneath her signatures are Joseph's and Pamela's signatures. Ms. Kessler's signature appears again on the notary's signature line.

When Joseph Francis died in 1997, Pamela petitioned for allowance of homestead rights and maintenance payments from his estate. The personal representatives of the estate opposed the petitions, asserting that Pamela had waived her rights to the homestead election and family maintenance in the antenuptial agreement. Pamela challenged the agreement's validity. By order, the court held that the antenuptial agreement was void because it failed to have two witnesses and a notary as required by Minn. Stat. § 519.11, subd. 2 (1996). The court then ordered the personal representatives to make maintenance payments to Pamela from the estate.

On appeal from the trial court's orders, the personal representatives assert that (1) the antenuptial agreement is valid and enforceable under Minn. Stat. § 519.11, subd. 2; (2) the alleged insubstantial discrepancies in witnessing the execution do not invalidate the antenuptial agreement; (3) failure to comply with the statutory execution standards merely shifts the burden to the proponents with respect to the matters acknowledged in the agreement; and (4) the antenuptial agreement is valid under Minnesota common law. We affirm.


The trial court's interpretation and application of Minn. Stat. § 519.11, subd. 2 (1996), is a question of law subject to de novo review. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996). The object of statutory interpretation is to determine and effectuate legislative intent. Minn. Stat. § 645.16 (1996). If possible, construction must give effect to all statutory provisions. Id.

Minn. Stat. § 519.11, subd. 2 (1996), provides:

Antenuptial or postnuptial contracts or settlements shall be in writing, executed in the presence of two witnesses and acknowledged by the parties, executing the same before any officer or person authorized to administer an oath under the laws of this state. An antenuptial contract must be entered into and executed prior to the day of solemnization of marriage. A power of attorney may not be used to accomplish the purposes of this section.

Appellants assert that Minn. Stat. § 519.11, subd. 2, does not preclude the parties from also serving as each other's witness. We disagree. Minn. Stat. § 519.11, subd. 2, distinguishes between "parties" and "witnesses" by referring to them separately. This distinction indicates the legislature intended the two witnesses to be persons other than the parties. The word "shall" is mandatory unless another intention clearly appears in the statute. Minn. Stat. § 645.44, subd. 16 (1996). The statute does not indicate that the word "shall" has any other meaning. Therefore, two witnesses, in addition to the two parties, are mandatory to execute a valid antenuptial agreement.

Appellants' reliance on Pollock-Halvarson v. McGuire, 576 N.W.2d 451 (Minn. App. 1998), review denied (Minn. May 28, 1998), for support for their proposition is misplaced. In Pollock, the surviving spouse challenged the antenuptial agreement, seeking to obtain her elective share of her deceased husband's estate. 576 N.W.2d at 454. Two persons, in addition to the parties, signed the antenuptial agreement, one as an ordinary witness and the other as notary. Id. at 457. The surviving spouse claimed that the statute required two witnesses, in addition to the notary. Id. The court noted that Minn. Stat. § 519.11, subd. 2, does not distinguish the person taking the acknowledgment from the witnesses. Id. at 458. Notarial acts included "witnessing or attesting a signature." Id.(citing Minn. Stat. § 358.41(1) (1996)). Because the statutory language did not clearly preclude a notary from also serving as witness, the court declined to read this preclusion into the statute. Id. (1)

We agree with the holding in Pollock. The court did not nullify the two-witness requirement. Minn. Stat. § 519.11, subd. 2, permits the notary to be "any officer or person authorized to administer an oath." Id. (emphasis added). Appellant's interpretation, however, makes the two-witness requirement meaningless. See Minn. Stat. § 645.12 (1) and (2) (1996) (legislature does not intend an absurd result, but intends an entire statute to be effective).

The object of attestation is to provide a witness who is able to testify to the document's execution by the person making it and authenticate its genuineness. 4 John Henry Wigmore, Evidence in Trials at Common Law § 1293, at 709 (James H. Chadbourn rev., 1981). Exact adherence to the execution standards, comparable to those governing wills, protects the integrity of the antenuptial agreement. See Minn. Stat. § 524.2-502 (1996) (requiring that the will be in writing and signed by the testator and two witnesses); Minn. Stat. § 524.2-504 (1996) (stating a will may be executed, attested, and made self-proved by acknowledgment of testator and affidavits of witnesses before an officer authorized to administer oaths). Compliance with the statutory execution requirements is necessary to create a valid will. In re Ludwig's Estate, 79 Minn. 101, 108, 81 N.W. 758, 761 (1900). By extension, we hold that two witnesses in addition to the two parties are necessary for a valid antenuptial agreement. In view of our holding, the remaining issues are moot.


(1) The parties agree that under Pollock-Halvarson, which was decided after the trial court's decision in the present case, the notary may also serve as witness.