This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-98-1765

In re Estate of Eleanorea Wille,

Deceased

and

In re Estate of Robert Wille,

Deceased.

Filed May 18, 1999

Affirmed; motion denied in part and granted in part

Peterson, Judge

Watonwan County District Court

File No. P87419

Matthew L. Fling, 5100 Eden Avenue, Suite 306, Edina, MN 55436 (for appellant Gilbert Wille)

Daniel A. Birkholz, 101 South Seventh Street, P.O. Box 461, St. James, MN 56801 (for respondents Margaret Green, Allen Wille, and Harold Wille)

Jon G. Sarff, 100 Walnut Street, Mankato, MN 56001 (for respondent Franklin Wille)

Shirley Riihl, Rural Route 1, Mountain Lake, MN 56159 (pro se respondent)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

On appeal from the denial of his petitions to vacate or modify orders of complete settlement in his parents' estates, Gilbert Wille challenges the district court's conclusions that (1) he did not prove fraud; and (2) his action was barred by the statute of limitations and the doctrine of laches. He also moves to strike items from the record on appeal and requests attorney fees. We affirm the district court, grant the motion to strike in part, and deny attorney fees.

FACTS

Robert and Eleanorea Wille had six children: respondents Margaret Green, Shirley Riihl, and Harold, Allen, and Franklin Wille; and appellant Gilbert Wille. The family last saw Gilbert in 1962. At that time, Gilbert told Harold that he would like to go to Australia some day.

Robert died in August 1982. His will devised his personal property and his interest in the homestead to his wife and the residue to two trusts. The trust assets were to be distributed equally among his children after Eleanorea's death and upon the last beneficiary reaching age 30. His will was admitted to probate on September 27, 1982.

Eleanorea died on December 7, 1987. Her will was probated on February 12, 1988. Under the terms of her will, the children were to share equally in her estate. Margaret, Harold, and Allen met with an attorney to discuss the problem of settling the estate in view of the fact that no one knew Gilbert's whereabouts. They hired a skip tracer, who was unable to locate Gilbert. Margaret then petitioned for an order determining Gilbert's death, and, on April 10, 1989, the court issued the order.

In June 1989, the inventory in Eleanorea's estate was filed. It showed a net appraisement of $346,449.71. Also in June 1989, the district court issued an order of complete settlement and decree of distribution in Robert's estate. The beneficiaries were Margaret, Allen, Harold, Franklin, and Shirley. Gilbert was omitted because he had been declared dead. Several months later, the court issued an order of complete settlement of the estate and decree of distribution in Eleanorea's estate, distributing her estate assets equally to all of the siblings except Gilbert.

In March 1991, Franklin hired an investigator in Australia to look for Gilbert. In December 1991, the investigator found Gilbert in Australia. Gilbert wrote to Franklin in May 1992. At that time, Franklin told him that their parents had died. On June 8, 1992, Gilbert wrote to Franklin, stating that he had become an Australian citizen in 1991 and sent in a voter registration card, and that the Salvation Army had located him using this information.

In the summer of 1992, Franklin hired an attorney for Gilbert to have the order declaring his death vacated. In August 1995, Gilbert petitioned for an order vacating the declaration of his death. The district court granted this petition the following spring.

In August 1997, Gilbert petitioned to vacate or modify the orders of settlement in both of his parents' estates, alleging that he had been omitted and that his siblings had procured the orders by fraud. After a hearing, the district court denied the petitions to reopen the estates.

D E C I S I O N

1. Motion to strike. Gilbert argues that the respondents (1) improperly directed the district court to transmit the file involving the proceedings to vacate the order declaring his death (District Court File No. C7-95-280); and (2) included exhibits in their appendix that are not part of the record on appeal.

The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. The district court may take judicial notice of court records and files from prior adjudicative proceedings. In re Welfare of D.J.N., 568 N.W.2d 170, 175-76 (Minn. App. 1997).

If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and determined by the trial court and the record made to conform.

Minn. R. Civ. App. P. 110.05.

Whether District Court File No. C7-95-280 is properly part of the record on appeal depends on whether the district court considered that proceeding in any of its rulings in this proceeding. The dispute concerning whether C7-95-280 was part of the record on appeal was submitted to the district court. The district court directed the court administrator to forward both District Court File No. C7-95-280 (vacation of declaration of death) and District Court File No. C1-89-86 (declaration of death). These files are, therefore, part of the record on appeal, as are exhibits C, E, and F, which were filed in this proceeding. We grant the motion to strike exhibits I, K, and L, which were not filed in any of the district court proceedings, and we do not consider them in reaching our decision. We deny the request for attorney fees.

2. Failure to prove fraud. In a probate proceeding, a district court may

correct, modify, vacate, or amend its records, orders and decrees:

* * * *

(c) Within two years after petitioner's discovery thereof, for fraud, whether intrinsic or extrinsic, or misrepresentation unless petitioner be a party to such fraud[.]

Minn. Stat. § 525.02 (1998). A district court's denial of a motion to vacate a probate order will not be reversed absent an abuse of discretion. In re Estate of Weber, 418 N.W.2d 497, 501-02 (Minn. App. 1988), review denied (Minn. Apr. 4, 1988).

Vacation of a judgment for fraud requires a showing that a party intentionally misled or deceived the court as to material circumstances. In re Conservatorship of Bromley, 359 N.W.2d 723, 724 (Minn. App. 1984), review denied (Minn. Mar. 21, 1985). A reviewing court will not reverse a district court's findings concerning fraud unless they are clearly erroneous. Mahoney v. Mahoney, 474 N.W.2d 232, 234 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991).

The district court concluded that Gilbert failed to prove fraud. Gilbert contends that the district court erred because the inadequacy of the search conducted before he was declared dead and the fact that the inventory in Eleanorea's estate was filed after the court determined his death were sufficient evidence of fraud. We disagree.

The district court found that the family did more than was legally required in its effort to find Gilbert; that Gilbert did nothing to enable his family to find him; and that the family properly procured the order determining Gilbert's death. The court also found that the late filing of the inventory in Eleanorea's estate was consistent with local procedure and that there was no basis for the claim that the timing was the result of fraud. The court also found that Franklin was the driving force behind Gilbert's petition to reopen the estates because Franklin was dissatisfied with the sale of the family farm and could not directly reopen the estates himself.

The record includes evidence that the family had, over the years, inquired about Gilbert's whereabouts among themselves and close acquaintances; made a personal search in 1963; sought assistance from the Social Security Administration and the Salvation Army; hired a private detective; and looked for Gilbert's name in genealogy books. In addition, they hired a skip tracer in 1988, who testified that Gilbert's statement that he might go to Australia was not proof he was there. The skip tracer also stated that he did a reasonable search, but, without concrete evidence of Gilbert's location, the cost of a worldwide search would be "astronomical." Franklin filed an affidavit in 1989 stating that it was reasonable for the court to declare his brother dead, and he did not challenge the adequacy of the family's search until 1995. Franklin also admitted that he renewed the search because he was angry about the probate of his mother's estate and was advised by an attorney that the solution was to "find Gilbert."

Gilbert acknowledged that he had not told anyone that he went to Australia. Also, he did not write or call his family from 1961 to 1992; he did not have a listed phone number; his Australian motor vehicle license is not a public record; he bought a house in 1982, but it remained difficult to find him because land ownership records in Australia are maintained locally; and his name did not appear on the Australian electoral roll until 1991.

The sequence of filing the inventory after procuring the order declaring Gilbert's death does not establish fraud. The attorney who handled Robert Wille's estate testified that late probate filings were a common local practice, and Margaret testified that she did not intentionally suppress evidence of the size of the estates. Gilbert produced no evidence to refute this testimony. Because there is evidence that supports the district court's findings concerning fraud, the court's conclusion that Gilbert did not prove fraud is not clearly erroneous.

3. Statute of limitations. The district court concluded that Gilbert's petitions to reopen the estates were barred by the two-year statute of limitations in Minn. Stat. § 525.02(c). Gilbert argues that he petitioned to reopen the estates under Minn. Stat. § 524.3-1001(b) (1998) as an omitted heir, and Minn. Stat. § 525.02 does not pertain to the omitted-heir provision. But Minn. Stat. § 524.1001(b) does not apply to Gilbert's petitions to reopen his parents' estates.

Section 524.3-1001(b) provides:

If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs.

A "testacy proceeding" is "a proceeding to establish a will or determine intestacy." Minn. Stat. § 524.1-201(51) (1998). The purpose of Gilbert's petition was not to confirm or alter the previous order of testacy; it was to vacate or modify the order of complete settlement of the estate and decree of distribution. Minn. Stat. § 524.3-1001(b) is not a vehicle for reopening the estates. Instead, it provides a procedure for correcting an omission or other error in the testacy proceeding at the time of the formal proceedings to terminate administration and distribute the estate. See 1 Robert A. Stein, Stein on Probate § 7.01(a)(1), at 137 (3rd ed. 1995) (if heir was omitted as party in previous formal testacy proceeding court may cure defect at termination of estate); see also Unif. Probate Code § 3-1001 (amended 1993), 8 U.L.A. 288-89 cmt. (1998) ("[t]his section provides a method of curing an oversight in regard to notice which may come to light before the estate is finally settled").

Alternatively, Gilbert argues that his action for fraud did not accrue until his legal existence was restored in April 1996, when the order determining his death was vacated. We disagree.

A petitioner has two years after discovering fraud to bring an action to vacate or modify a previous order. Minn. Stat. § 525.02(c). Gilbert admitted that he first learned of his parents' deaths in 1992. Franklin testified that in the summer of 1992, he told Gilbert about the estates and hired an attorney for him to vacate the declaration of death. In a January 21, 1995, affidavit submitted in support of the motion to vacate the declaration of Gilbert's death, Franklin stated that his siblings' efforts to locate Gilbert had been inadequate and that his siblings had Gilbert declared dead so that they would receive a larger portion of their mother's estate. This affidavit demonstrates that Gilbert knew of his fraud claim no later than January 1995. His lack of legal existence did not prevent him from discovering the claim. But although his legal existence was restored in April 1996, he did not assert the fraud claim until August 1997, more than two years after he discovered the claim. Consequently, it is time-barred.

4. Laches. The district court also found that Gilbert's petitions to reopen the estates were filed "some five years after [Gilbert's] becoming aware of the status of his parents' estates," that there was no legal excuse for his delay, and that his petitions were barred by laches. Gilbert contends that respondents have not shown that they would be prejudiced by his delay in filing his petitions.

A petitioner must proceed with due diligence, or an action to vacate an order may be barred by laches. Minn. Stat. § 525.02. The doctrine of laches prevents one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay. Aronvitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953). Although evidence of prejudice is not always essential to the application of this doctrine, it is an important circumstance that the parties' situation has changed. Id. at 242-43, 56 N.W.2d at 574.

Gilbert's sole excuse for his delay is that he was prevented from doing so until he "came into legal existence." As we have already stated, this argument is not persuasive. Gilbert's lack of legal existence does not constitute a valid reason for delay. Further, his siblings received their distributions ten years ago. The district court did not err in concluding that laches barred this action.

Because Gilbert's action is barred by the statute of limitations and laches, it is unnecessary to consider the other issues he raised.

Affirmed; motion denied in part and granted in part.