C0-99-1484

In Re:

Estate of Clara Marie Snow,

Deceased.

Filed May 30, 2000

Affirmed

Amundson, Judge

Dodge County District Court

File No. P998298

William G. Skemp, William P. Skemp, pro hac vice, William Skemp Law Firm, 700 North Third Street, Suite 202, P.O. Box 397, LaCrosse, WI 54602 (for appellants)

Mark D. Nyvold, 46 East Fourth Street, Suite 1030, St. Paul, MN 55101; and

Michael R. LaFleur, 4687 Clark Avenue, White Bear Lake, MN 55110 (for respondents)

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.^*

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

AMUNDSON, Judge

The proponent of decedent’s will appeals the district court’s order determining that the decedent’s will is invalid and refusing to admit it to probate, arguing that the district court clearly erred with respect to a number of its findings. We affirm.

FACTS

In 1975, Clara and Henry Snow executed wills containing provisions stating that upon their deaths, the remainder of the estate would pass to the surviving spouse, and upon death of the surviving spouse, to the three children in equal divisions. In 1991, Clara and Henry Snow revised their wills providing that the farm machinery, tools, and equipment were to descend to their son, Jerry Snow, and the remainder of the estate to the surviving spouse. In 1994, Henry Snow died and, pursuant to his will, Jerry Snow was bequeathed the farm machinery, tools, and equipment.

In January 1995, Clara Snow went to an attorney’s office to discuss revising her will, but no revisions were made. On April 27, 1995, Clara Snow allegedly signed a new will that was witnessed by Bill Ogle and Kathy Collazo. In April 1996, Jerry Snow, Clara Snow’s son, retained an attorney to draft a will for her. Clara Snow died on April 2, 1998, and Jerry Snow, as personal representative of the Estate of Clara Snow and sole beneficiary of the farm, petitioned to admit to probate a will dated April 27, 1995. Probate of the will was contested and, following a hearing, the district court ruled that the purported will of Clara Snow had not been duly executed and was therefore invalid. This appeal followed.

D E C I S I O N

Appellant contends the district court erred by ruling in favor of the respondent, arguing that the evidence did not support the district court’s findings. A district court’s findings of fact may not be set aside on review unless clearly erroneous. Minn. R. Civ. P. 52.01. Further, an appellate court will only reverse a district court’s findings of fact if, “upon review of the entire evidence, the reviewing court is left with a definite and firm conviction that a mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). Findings of fact are considered clearly erroneous only if the evidence does not reasonably support them. Flectcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999).

The district court found that the proponents of the will failed to meet their burden of proving due execution. See Minn. Stat. § 524.3-407 (1998) (“proponents of a will have the burden of establishing prima facie proof of due execution in all cases”). The district court found that evidence presented demonstrated (1) that Clara Snow’s signature was traced or forged; (2) that the will was not witnessed by two witnesses in compliance with Minn. Stat. § 524.2-502 (1998); and (3) that the proponent’s credibility was questionable.

The district court found that the signatures on the purported will were not Clara Snow’s. The district court relied on the testimony a handwriting expert, Ann Hooten, who testified that the signature on the signature line of the will was “highly suspect” because it deviated from other known signatures of the decedent. Hooten also testified that there was a “strong probability” that the signature on the will was not Clara Snow’s, and that the signatures appeared to be traced or forged.

Appellant argues that Hooten’s testimony was insufficient to support the district court’s finding that the signature on the will was traced or forged. Appellant relies on the case of Walton v. Jones, 286 N.W.2d 710 (Minn. 1979), for its contention that Hooten’s testimony needed to establish to a reasonable probability that the testatrix’s signature was traced or forged. But Walton stands for the proposition that, in a medical malpractice case, the expert testimony must establish that defendant’s negligence was the proximate cause of the injury. Id. at 715.

Additionally, appellant contends that the district court’s reliance on Hooten’s testimony was in error because five people who knew Clara Snow testified that the signatures on the will were hers. But the district court was entitled to believe Hooten and disbelieve the other witnesses. SeeMinn. R. Civ. P. 52.01 (district court's findings of fact may not be reversed unless clearly erroneous, with due regard given to the court's opportunity to judge credibility of witnesses). Thus, we conclude that the evidence reasonably supports the district court’s finding that Clara Snow’s signature was traced or forged.

The district court also found that appellant failed to prove the will was witnessed by at least two persons in compliance with Minn. Stat. § 524.2-502, which requires that a will be “signed by at least two individuals, each of whom signed within a reasonable time after witnessing * * * the signing of the will.”

The district court concluded that because the will was dated April 27, 1995, a witness would have had to attest to the authenticity of the signature within a reasonable time after April 27, 1995. Bill Ogle, a witness to the will, testified that he was in the presence of the testatrix and witnessed her signature on a Saturday. But April 27, 1995 was a Thursday, whereas April 27, 1996 was a Saturday. Because the district court found that there was no evidence that the will was incorrectly dated, the district court concluded that Ogle witnessed the signature one year after Clara Snow allegedly signed the will. Thus, the district court concluded that Ogle’s witnessing of the signature was not in compliance with the statute’s requirement that it be signed within a reasonable time after witnessing the testatrix’s signature.

Ogle testified in detail about witnessing the testatrix actually sign her will. But the district court disbelieved all of that testimony, as well as that of Kathy Collazo, who also testified to witnessing the testatrix sign the will. Furthermore, the district court found that the

[p]ersonal [r]epresentative and sole beneficiary under the alleged Will retained William P. Skemp, Attorney at law, to draft a Will for decedent in April of 1996. The Personal Representative had previously testified in a deposition that he had used this Will when drafting the alleged 1995 Will being submitted to probate. The court is satisfied that the Will provided by Mr. Skemp in 1996 and the will drafted by proponents bear significant resemblance, casting doubt on the validity of the will being executed in April of 1995.

Accordingly, the district court’s determination that the signing of the will was not witnessed by two persons on April 27, 1995, or within a reasonable time after that date, is reasonably supported by the evidence and not clearly erroneous.

Finally, the appellant challenges the district court’s finding that his credibility was questionable. But this, like the other challenges appellant has made to the district court’s findings of fact, involves a credibility determination that we will not upset because no showing has been made to suggest that the district court clearly erred.

Affirmed.

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