This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re:

Estate of Arthur Paul Fischer.


Filed January 24, 2006

Affirmed; motion granted

Lansing, Judge


Meeker County District Court

File No. P3-03-648


Brian M. Olsen; Brian M. Olsen Law Office, Tower Center Mall, P.O. Box 988, Cokato, MN 55321 (for appellants August Fischer and Richard Hoff)


Donald Walser; Kraft, Walser, Hettig & Honsey, 131 South Main Street, P.O. Box 129, Hutchinson, MN 55350 (for respondent Ruby F. Bauer, Personal Representative of the Estate)


David G. Berry; Wood, Berry & Rue, 34 East Second Street, P.O. Box 682, Litchfield, MN 55355 (for respondent Estate of Arthur Paul Fischer)


            Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order admitting Arthur Fischer’s will to probate, Fischer’s brother and nephew assert that the district court erred by dismissing their objection to Fischer’s testamentary capacity and by finding, after a contested hearing, that they failed to prove that Fischer’s niece exercised undue influence in the formulation of Fischer’s will.  Because the district court did not err in either determination, we affirm the order admitting Fischer’s will to probate.


            Arthur Fischer (Fischer) died in 2003 at age eighty-seven.  During his lifetime Fischer owned and farmed a 240-acre parcel of land in Meeker County.  He remained single and had no children.  He maintained a close relationship with his sister Elsie Radunz and her husband Emil.  Emil Radunz leased farm land from Fischer and they worked cooperatively in their farming operations. 

            As Fischer aged, the Radunz family assisted him with personal maintenance and transportation.  When Fischer’s health began to decline, he executed a durable nongeneral power of attorney authorizing Emil Radunz to act on his behalf.  Emil Radunz was unable to continue in this capacity, and, in July 2001, Fischer executed a new power of attorney designating Radunz’s daughter, Ruby Bauer, to act as his attorney-in-fact.  In July 2001 Fischer’s health further declined and he moved, first to an assisted-living residence and then to a nursing home.  In December 2001 Fischer moved to Bauer’s home where she provided full-time care until a few days before his death.

After Fischer’s death in July 2003, Bauer, as the personal representative, petitioned to admit Fischer’s October 2002 will to probate.  Fischer had executed three previous wills.  The earliest of these wills was dated August 1978.  That will named Elsie Radunz as his residual beneficiary, devised forty acres to his brother August Fischer, devised his home and lot in the town of Cedar Mills to his sister Tillie Radunz, and bequeathed $1,000 to his sister Ethel Hoff.  The second will, executed in May 2001, deleted the provisions for his sisters Tillie Radunz and Ethel Hoff, both of whom had died in the intervening twenty-three years, and added Emil Radunz as a co-beneficiary of the residual estate.  The third will, executed in January 2002, deleted the devise of land to August Fischer, bequeathed $1,000 to his church, designated Bauer as personal representative, and substituted Elsie and Emil Radunz’s three children as residual beneficiaries of his estate.  Bauer’s residual share was subject to a $90,000 loan repayment.  The fourth will, executed in October 2002, retained the same residual beneficiaries but devised all real property to Bauer. 

Fischer’s nephew Richard Hoff and niece Lorraine Bipes, in her capacity as attorney-in-fact for her father August Fischer, objected to admitting the will, alleging lack of testamentary capacity and undue influence by Bauer.  At the conclusion of the contestants’ presentation of evidence at the contested hearing, the district court dismissed their objection to Fischer’s testamentary capacity for failure to establish a prima facie case.  The district court issued detailed findings of fact and conclusions of law on the undue-influence objection and concluded that Fischer’s will was valid and not a product of undue influence.

The contestants appeal the order admitting the will to probate.  They contend that the district court erred by (1) dismissing their objection to Fischer’s testamentary capacity and (2) concluding that Bauer did not exercise undue influence in the formulation of Fischer’s will.  Bauer moves this court to strike two documents in the appellants’ brief.


As a preliminary matter, we address Bauer’s motion to strike two documents included in the appellants’ brief that were not admitted as exhibits in the district court.  The first document, a letter from a doctor to the appellants’ attorney, was offered at the hearing.  Bauer’s attorney objected to its admissibility, and the court sustained the objection.  The second document, a list of the appellants’ proposed exhibits, was ruled inadmissible because it contained allegations and factual arguments.  The court instructed the contestants to redact the material that was not properly part of the exhibit list.  The document was not redacted or revised, and it was not resubmitted to the court.  Because neither document was admitted into evidence and is not properly part of the record, we grant the motion to strike.  See Minn. R. Civ. App. P. 110.01 (limiting the record on appeal to “[t]he papers filed in the [district] court, the exhibits, and the transcript of the proceedings”). 


A will is valid only if the testator has testamentary capacity when executing the will.  Testamentary capacity exists if the testator knows “the nature, situation, and extent of his property and the claims of others on his bounty . . . and he [is] able to hold these things in his mind long enough to form a rational judgment concerning them.”  In re Estate of Congdon, 309 N.W.2d 261, 266 (Minn. 1981) (quotation omitted).  Factors to be considered in determining whether a testator possesses testamentary capacity include the reasonableness of the property disposition, the testator’s conduct within a reasonable time before and after executing the will, a prior adjudication of the testator’s mental capacity, and expert testimony about the testator’s physical and mental condition.  In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986).  Contestants to a will have the burden of establishing lack of testamentary capacity.  Minn. Stat. § 524.3-407 (2004).

The record supports the district court’s dismissal of the contestants’ objection that Fischer lacked testamentary capacity.  The contestants provided no evidence to substantiate their claim.  The only evidence that they provided that related to capacity was the testimony of a doctor who treated Fischer in September 2002 and stated that without further tests he “really couldn’t tell very much about what [Fischer] could or could not do.”  This testimony is insufficient to establish lack of testamentary capacity.  In presenting proof of due execution of the will, the attorney who drafted Fischer’s will testified that he had drafted between 800 and 1,000 wills and had in the past refused to draft a will when he had concerns about capacity.  He testified that he had discussions and interactions with Fischer over a period of one and one-half years, that Fischer presented no signs of incapacity, and that he had also relied on recent nursing home discharge papers stating that Fischer’s memory was intact and he was capable of making a determination on whether to accept or reject a resuscitation order.  The district court did not err by dismissing the contestants’ objection for failure to present evidence that Fischer lacked testamentary capacity.


The proponent of a will must make a prima facie showing that the will was duly executed.  Minn. Stat. § 524.3-407 (2004).  But a will contestant who objects on the ground that undue influence affected the testator’s will must establish the undue influence and bear the ultimate burden of persuasion on that issue.  Id.

To invalidate a will based on undue influence the contestant must show that, at the time the testator executed the will, another person exercised influence to the degree that the will reflects his or her intent instead of the testator’s intent.  In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957).  Mere conjecture and suspicion are insufficient to prove undue influence.  Id.  The evidence must show that the influence exerted “was so dominant and controlling of the testator’s mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.”  Congdon, 309 N.W.2d at 268 (Minn. 1981) (quotation omitted).

In determining whether a testator was unduly influenced, courts consider several factors, including an opportunity to exercise influence; the existence of a confidential relationship between the testator and the person claimed to have influenced the testator; active participation by the claimed influencer in preparing the will; an unexpected disinheritance or an unreasonable disposition; singularity of will provisions; and inducement of the testator to make the will.  In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969); In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947).  Whether undue influence exists is a question of fact, and we will not reverse the district court’s determination unless its findings are clearly erroneous.  In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972); Reay, 249 Minn. at 124, 81 N.W.2d at 279.  A finding is clearly erroneous if this court “is left with the definite and firm conviction that a mistake has been committed.”  Balafas, 293 Minn. at 96, 198 N.W.2d at 261 (quotation omitted).

In support of its determination that Fischer executed his October 2002 will free from undue influence, the district court made extensive and detailed findings addressing the testimony of eleven witnesses and the forty-nine exhibits received as evidence.  These findings are supported by the evidence and are not clearly erroneous.

Furthermore, the factors that would suggest undue influence are absent in this case.  Bauer did not actively participate in preparing Fischer’s will.  She drove him to his attorney’s office but was not present when Fischer and his attorney discussed and formulated the will.  Fischer’s attorney asked Fischer why he was leaving Bauer his real property and, according to the attorney’s contemporaneous notes, Fischer replied, because “she was taking care of him so well.”  Bauer did not know the contents of Fischer’s will until he died.

Fischer’s will does not contain an unexpected disinheritance or an unreasonable disposition, nor do its provisions reflect singularity.  His wills consistently favored Elsie Radunz’s family.  His attorney specifically asked him why he omitted the devise of land to August Fischer when drafting his third will, and Arthur Fischer told him it was because his brother did not need it.  Bauer took Fischer into her home and cared for him.  Fischer’s attorney observed “a very warm, loving relationship” between Fischer and Bauer and commented on how Fischer’s appearance and attitude improved after Bauer took over his care.  Fischer did not have similar relationships with his other relatives.  Many of his relatives testified that they had not visited him in his final years.  Although the relatives attempted to attribute the lack of visits to Bauer isolating Fischer from the rest of the family, this claim is unfounded because Bauer only asked them to give her reasonable notice of the visits.  Most of the relatives admitted that they had not tried to visit Fischer while he lived with Bauer.

The record does not suggest that Bauer induced Fischer to make the will.  The contestants argue that it is unusual that Fischer let his 1978 will stand for more than twenty years and then changed it three times in about eighteen months.  But the record reflects that Fischer changed his will in response to changing circumstances.  By 2001, two of his sisters named in his 1978 will had died.  Emil Radunz was not in his 1978 will and Fischer wanted to provide for him in the event that Elsie Radunz predeceased her husband.  Fischer became closer to Bauer when she began caring for him full-time and his will reflects that relationship.

Finally, the record fails to support the contestants’ claim that Fischer was unable to read and write and that his physical condition made him vulnerable to Bauer’s influence.  Although Fischer had cancer and struggled with personal care, the evidence clearly establishes that he was literate, he remained alert, and he participated actively in decisionmaking. 

Sufficient evidence supports the district court’s determination that Fischer had testamentary capacity in October 2002 when he executed his last will and that he was not unduly influenced in the making of that will.  We therefore affirm the district court’s order admitting that will to probate.

            Affirmed; motion granted.

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