This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


In Re: Estate of Maybelle A. McCarthy,


In Re: Trust Created by Maybelle McCarthy
U/A August 25, 1993,
Norwest Bank Minnesota, N.A.,

Filed October 19, 1999
Harten, Judge

Hennepin County District Court
File No. P5-97-2018

Richard S. Eskola, Moore, Halsey & Eskola, L.L.C., PACO Office Center, Suite 160, 7260 University Avenue N.E., Fridley, MN 55432 (for appellant Thielmann)

William J. Wernz, Julia L. Rau, Nicholas A. Vlietstra, Dorsey & Whitney, L.L.P., 1300 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-1498 (for respondent Norwest Bank)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Audrey Theilman, a beneficiary under a will, challenges the district court's findings that the decedent had testamentary capacity when she executed codicils and the capacity to contract when she executed an inter vivos trust agreement. Appellant also challenges the denial of her motion for a new trial. Because we see no error in the findings and no abuse of discretion in the denial, we affirm.


Maybelle McCarthy, a childless widow, died in 1997 at the age of 100. Her estate was approximately $1,600,000; her will provided that the residue was divided between a nephew and a niece (appellant).

In 1992, McCarthy attended a presentation on trusts given by respondent Norwest Bank Minnesota (Norwest). At McCarthy's invitation, a member of the bank staff met with her at her home and explained trusts in greater detail. When McCarthy became ill and was hospitalized in August 1993, she asked to see a Norwest representative and signed an inter vivos trust agreement consolidating her assets and transferring them to Norwest as trustee.

Later that month, she executed a codicil to her will (the 1993 codicil) naming Norwest as her personal representative. In 1994, McCarthy executed another codicil, (the 1994 codicil) leaving $150,000 to family friend George Clark, $10,000 to her housekeeper, Sylvia Swierczek, and $10,000 to her gardener, Paul Ylitalo.[1] In 1995, to correct a clerical error in the 1994 codicil, McCarthy executed a third codicil (the 1995 codicil).

Following McCarthy's death, Norwest petitioned the district court for probate of the will and codicils and for appointment as personal representative. Appellant filed objections to the probate of the will and codicils, to the validity of the trust agreement, and to the appointment of Norwest as personal representative; she requested an advisory jury trial. The validity of the trust and the alleged improper administration of the trust by Norwest were tried to the court; the issue of testamentary capacity was tried to the court with an advisory jury, which found that McCarthy had testamentary capacity when she executed the codicils. The district court adopted the jury's finding.

Alleging various trial errors, appellant unsuccessfully moved for a new trial or for amended findings on McCarthy's testamentary capacity and capacity to contract. This appeal followed.


1. The Findings

Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. This court will reverse a trial court's findings of fact only if, upon review of the entire evidence, it is left with the definite and firm conviction that a mistake has been made. In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).

A. Testamentary Capacity

Appellant has the burden of establishing lack of testamentary capacity. See In re Estate of Congdon, 309 N.W.2d 261, 266, n.8 (Minn. 1981) (citing Minn. Stat. § 524.3-407 (1980)). "[T]estamentary capacity requires only that the testator have capacity to know and understand the nature and extent of his bounty, as distinguished from the requirement that he have actual knowledge thereof." Id. at 266. When the evidence supports both testamentary capacity and lack of testamentary capacity, "the trial court's decision [will] not be reversed." Id at 267, n.10 (citing In re Estate of Healy, 243 Minn. 383, 68 N.W.2d 401 (1955)).

In Congdon, as here, the testimony conflicted as to the capability of an elderly person in frail health. See id. at 266-67. The district court relied on the testimony of McCarthy's attorney and of the Norwest employee who worked with McCarthy. They testified that (1) before McCarthy signed the 1993 codicil, she had asked if Norwest would be willing to be the personal representative (PR) of her estate, (2) McCarthy knew she was amending her will to name Norwest as the PR, and (3) McCarthy was definite in wanting Norwest to handle her affairs.

In regard to the 1994 codicil, they testified that (1) McCarthy originally wanted a codicil making two $20,000 bequests and one $200,000 bequest, (2) when McCarthy saw the codicil she changed her mind and wanted two $10,000 bequests and one $150,000 bequest, (3) McCarthy had the revised codicil read to her and said it was what she wanted, and (4) McCarthy understood what she was doing in making the bequests.

They also testified that the 1995 codicil resulted from their discovery that in the 1994 codicil, the numbers had been changed as McCarthy requested, but the corresponding words mistakenly remained unchanged. They further testified that they took a corrected and superceding codicil to McCarthy and explained what had happened and why they wanted her to sign it, and that she understood. Their testimony supports the finding that McCarthy did not lack testamentary capacity at the time she signed each of the three codicils.

Appellant argues that the district court should have relied on the testimony of a nursing home employee who witnessed the first codicil and of McCarthy's physician, both of whom implied that McCarthy lacked testamentary capacity. The district court explained why it had discounted their testimony:

[The nursing home employee] had no recollection of the actual signing of the codicil she had signed as a witness, and her testimony contradicted the attestation clause of the codicil she signed as a witness. * * * [The physician] had concerns about [McCarthy's] capacity but could not opine for certain that she lacked capacity at any of the times in question.

Given "the opportunity of the trial court to judge the credibility of the witnesses," Minn. R. Civ. P. 52.01, we conclude that there is no basis for overturning the district court finding that McCarthy had testamentary capacity. See Congdon, 309 N.W.2d at 267.

B. Capacity to Contract

"[T]estamentary capacity is a less stringent standard than the capacity to contract." Id. at 267. Citing this rule, appellant argues that even if McCarthy had the requisite testamentary capacity when she made the codicils, she lacked the capacity to contract when she transferred her assets to an inter vivos trust with Norwest Bank as trustee.

The test for determining if a person is competent to enter into a contract is "whether she has the ability to understand to a reasonable extent the nature and effect of what she is doing."

In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting State Bank v. Schrupp, 375 N.W.2d 48, 51 (Minn. App. 1985)), review denied (Minn. Aug. 16, 1993).

To find that McCarthy had the capacity to contract, the district court relied on the testimony of two Norwest employees who testified that (1) McCarthy asked them to come to her home to tell her about trusts, (2) she understood their presentation and asked pertinent questions, (3) she chose a trust arrangement rather than an agency arrangement, (4) they paraphrased the trust language for McCarthy, and (5) she then signed the trust. We conclude that this unrefuted testimony supports the district court's finding that McCarthy had the capacity to contract.

Appellant again argues that the district court should have relied on the testimony of McCarthy's physician, but his testimony was neither conclusive nor consistent. Appellant's argument that McCarthy could not have understood the trust document because she could not read it is refuted by testimony that it was explained to her.

The district court assessed the credibility of the witnesses, and its findings of testamentary capacity and capacity to contract are supported by the evidence.

2. New Trial Motion

"Ordinarily, the decision to grant a new trial does lie within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion." Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Appellant alleges several grounds for a new trial.

A. Refusal to Permit Amendment of Pleadings

Whether to allow amendment of pleadings is a discretionary decision. Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1982). Shortly before trial, appellant first sought to amend the pleadings to add a claim of undue influence. This occurred after the district court had sent the parties a copy of jury instructions on testamentary capacity and undue influence. Norwest objected to appellant's proposal, arguing that an issue of undue influence had never been raised and that no discovery had been conducted on it. The district court denied appellant's motion because permitting amendment would have prejudiced Norwest. There was no abuse of discretion.

B. Sanction of Appellant

The district court issued an order prohibiting the parties from ex parte contact with McCarthy's health care providers. Appellant violated this order by obtaining a pretrial statement from McCarthy's physician. After Norwest saw the statement, it decided to depose the physician. Appellant claims she was denied a fair trial both because the court ordered her to pay $850 toward the cost of the deposition and because Norwest showed the physician a copy of the order sanctioning appellant.

Appellant's only support for this claim is the physician's testimony that he was not influenced as a result of the ex parte contact. But this is irrelevant both to the fact that appellant violated a court order and to the fact that Norwest had no obligation to treat a court order as confidential. Appellant was not denied a fair trial by the sanction for her violation of a court order.

C. Evidentiary Decisions

The district court has discretion to admit or exclude evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Appellant challenges three of the district court's evidentiary decisions.

The first was the exclusion of a letter written by McCarthy's grandniece, who resides in Texas, stating that she noticed at a family event in July 1992 that McCarthy's mind was slipping and was "nearly blank" at the nursing home in the summer of 1994. Appellant claims that the letter is an affidavit and is admissible under Minn. R. Evid. 804 (a)(5), (b)(4), or (b)(5), (exceptions to the hearsay rule). But there was no showing that the witness was unavailable, the letter was not a statement of personal or family history, and there was no showing that the letter was more probative than other evidence of a material fact. The letter does not fall under any of the hearsay exceptions proffered by appellant.

Appellant next challenges the exclusion of the pretrial statement of McCarthy's physician. In obtaining the statement, appellant had violated a court order. There was no abuse of discretion in its exclusion.

Finally, appellant challenges the admission of testimony from Norwest employees and McCarthy's attorney as to their opinions of McCarthy's testamentary capacity. Appellant relies on In re Olson's Estate, 176 Minn. 360, 223 N.W. 677 (1929). But Olson held that it was error to exclude the testimony of a witness to a will because the witness had not shown himself competent to testify, particularly when the two other attesting witnesses testified as to the circumstances of the execution of the will and "as to their favorable opinion of the decedent's soundness of mind." Id. at 366, 223 N.W. at 680. Therefore, Olson contradicts appellant's argument. Appellant offers no convincing support for her view that those who witnessed McCarthy's execution of the codicils should not have been permitted to testify as to their opinions of her capacity.

We conclude that the district court did not abuse its discretion in denying a new trial on this basis of its evidentiary decisions.

D. Denial of Transcript Review

Finally, appellant argues that she is entitled to a new trial because the district court denied the advisory jury's request for a transcript of part of one witness's testimony. But the jury was advisory only and the district court adopted its finding. We will not reverse because of possible error affecting advisory jury administration when the trial court has expressed its belief that the jury decided correctly. Engler Bros. Construction Co. v. L'Allier, 280 Minn. 208, 211, 159 N.W.2d 183, 185 (1968). Even if the denial of the transcript was erroneous, there is no ground for reversal. Cf. Minn. R. Civ. P. 61 (harmless error to be ignored).

The district court's findings that McCarthy had both testamentary capacity and the capacity to contract at the relevant times are supported by the evidence, and we see no abuse of discretion in the district court's conduct of the trial.


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

[1] This reduced the amount of the residuary estate by $170,000 and appellant's share by $85,000.