This opinion will be unpublished and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 Josephine Hindt,


Filed November 17, 1998


Thoreen, Judge[*]

Murray County District Court

File No. P7-96-59

Stephen F. Rufer, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538-0866 (for appellant Richard Hindt)

Stephen Torvik, Nelson Oyen Torvik P.L.L.P., 221 North First Street, P.O. Box 656, Montevideo, MN 56265 (for respondents Gehlsen & Nelson Oyen Torvik P.L.L.P.)

Paul M. Malone, Malone & Mainlander, 2605 Broadway Avenue, P.O. Box 256, Slayton, MN 56172 (for estate)

Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Thoreen, Judge.



Appellant and both respondents, all claimants against an estate, challenge the district court's denial of their claims. Because we see no abuse of discretion, we affirm.


The district court denied four claims against the estate of Josephine Hindt: two brought by her son, appellant Richard Hindt, one brought by her daughter, respondent Dorothy Gehlsen, and one brought by a law firm, respondent Nelson Oyen Torvik P.L.L.P.

Appellant claimed $864 in reimbursement for 12 days he spent caring for decedent and $26,008.63 for attorney fees he incurred when two of his siblings, acting as attorneys-in-fact for decedent, sued him in an effort to have his leases of decedent's agricultural property declared unconscionable, unfair, and the result of undue influence (lease case). Appellant prevailed in that action. He did not seek attorney fees in the case, but brought a counterclaim for them when he was sued at a later date by seven of his siblings for rent of property between the time they inherited it in March 1996 and the time he purchased it in July 1996 (rent case). Both the siblings' claim for rent and appellant's counterclaim for attorney fees were dismissed.

Respondent law firm, retained by the attorneys-in-fact to bring the lease action, claimed $1,779.31 for out-of-pocket litigation expenses, arguing that the estate would have benefited had the lawsuit succeeded.

Respondent Dorothy Gehlsen claimed $986.60 for expenses incurred in connection with a piece of property adjacent to decedent's homestead which Gehlsen allegedly bought at decedent's request and maintained before and after her death. Decedent's attorney-in-fact at the time of the purchase refused Gehlsen's request for reimbursement. The property was sold with the homestead and added between $5,000 and $8,000 to the homestead's value.

The district court denied each of these claims. Appellant challenges the denial of his claims. The law firm and Gehlsen filed notices of review as to the denial of their claims.


Standard of Review

When a probate court's decisions involve allowance of claims against the estate rather than the construction of a will, this court applies an abuse of discretion standard. See, e.g., In re Estate of Hoppke, 388 N.W.2d 754, 756 (Minn. App. 1986).

1. Appellant's claim for reimbursement for care of decedent.

Appellant argues that the estate owes him $864 for care he provided to decedent, not because she agreed to pay him, but because she allegedly paid some of his siblings for similar care. There is a presumption that care provided by family members is gratuitous.

The evidentiary presumption arises where there is a family relationship, as evidenced by a close blood relation * * *. If one party rendered or received an obviously disproportionate share of services, the absence of mutuality may obviate the presumption.

In re Estate of Novak, 398 N.W.2d 653, 656 (Minn. App. 1987), review denied (Minn. Feb. 18, 1987). The amount of care appellant provided, 12 days over an 18-month period, was not disproportionate. The fact that prior to and during this period he was renting decedent's agricultural land for significantly less than its market value further supports the presumption of gratuitous service. There was no abuse of discretion in denying this claim.

2. Appellant's claim for attorney fees incurred in the lease action.

Appellant's claim for attorney fees is based on alleged bad faith.

A request for bad-faith attorney fees arising out of the conduct of a party in trial court proceedings must be presented to the trial court at a stage in the proceedings at which the deterrent effect of Minn. R. Civ. P. 11 and Minn. Stat. Sec. 549.21(1990) will be advanced.

Empire Fire & Marine Ins. Co. v. Carlson, 476 N.W.2d 666, 667 (Minn. App. 1991). At the time appellant counter-claimed for attorney fees in the rent case, the lease case in which the fees were incurred had been terminated, so an award of fees in the rent case would have had no deterrent effect and the court in the rent case properly dismissed appellant's counter-claim. Appellant has failed to provide authority for his assertion that he can recover bad-faith attorney fees in a subsequent action.

The trial court in this case likewise properly denied this claim. There was no abuse of discretion.

3. Respondent Gehlsen's claim.

The trial court concluded that the property Gehlsen purchased was "a gift to [decedent] rather than a valid claim against her estate." The facts support this conclusion. Decedent's then attorney-in-fact had told Gehlsen that decedent would not pay for the land. Gehlsen nevertheless proceeded with the purchase and paid taxes and maintenance costs on the property until decedent's death five years later, when she claimed reimbursement from the estate.

Neither the facts nor the law supports Gehlsen's claim. There is no factual basis for her assertion that this property was purchased at the request of decedent, and there is no legal support for her view that a gift made to a living person that increases the value of an estate is recoverable from that estate, particularly when the "giver" stands to benefit as an heir. There was no abuse of discretion in denying Gehlsen's claim.

4. Respondent law firm's claim for litigation expenses.

The law firm argues that because the lease action was brought by the attorneys-in-fact not for their personal benefit but for decedent's, and because decedent's estate would have benefited if that litigation had been successful, the estate should bear the law firm's expenses for litigation costs. No support is offered for the implied argument that a law firm retained by two individuals acting as attorneys-in-fact for a third party may recover the costs of unsuccessful litigation from the estate of the third party. There was no abuse of discretion in denying the law firm's claim.

Nor was there an abuse of discretion in denying appellant's claims or respondent Gehlsen's claim. We therefore affirm the district court's denial of the claims.


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