In Re the Estate of McCue

449 N.W.2d 509, 1989 Minn. App. LEXIS 1374, 1990 WL 59
CourtCourt of Appeals of Minnesota
DecidedJanuary 2, 1990
DocketCX-89-809
StatusPublished
Cited by3 cases

This text of 449 N.W.2d 509 (In Re the Estate of McCue) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Estate of McCue, 449 N.W.2d 509, 1989 Minn. App. LEXIS 1374, 1990 WL 59 (Mich. Ct. App. 1990).

Opinions

OPINION

KLAPHAKE, Judge.

Decedent’s will was admitted to formal probate October 11,1988. On February 21, 1989, appellant moved the probate court for vacation of the order on the grounds of excusable neglect in having not earlier filed objections to the will. The court granted appellant’s motion limited to a contest on the execution of the will, and denied a hearing on claims of undue influence and lack of testamentary capacity. Appellant challenges the court’s partial denial of his motion, while respondent appeals the court’s decision to vacate on any ground. We affirm in part, reverse in part, and remand.

FACTS

Decedent Willard McCue (Willard), a retired farmer, had three sons, Paul, Mark and John, and one daughter, Sister Marilyn Marie McCue, S.S.N.D. Willard entered a nursing home in Cold Spring in October 1984, where, except for a six month period in 1985, he remained until his death on August 30, 1988.

On April 9, 1986, respondent Mark McCue (Mark) visited his father at the nursing home where the two discussed making changes in Willard’s will. Mark then drove to Mankato to talk to Willard’s attorney, Jack Regan, about the changes. Regan called Willard that afternoon, and the two talked for about ten minutes. After the conversation, Regan prepared a revised will. Along with the revised will, Regan prepared a letter detailing the changes made to the will, and the procedure for its proper execution.

The next day, Mark picked up the revised will and the letter from Regan and drove to Cold Spring to deliver them to his father at the nursing home. Mark claims to have then taken his father from the nursing home to the local bank to have the will executed. Two bank employees signed the will as witnesses, another notarized it.

After Willard’s death, the witnesses stated in affidavits that although their signatures on the will were authentic, neither of them remembered ever seeing Willard, and that on April 10, 1986 they may have only witnessed the signature of the notary. The notary stated she did not think she had ever seen Willard in person, and that she [511]*511probably notarized the will at the request of a third party.

Willard’s original will established a small trust for his daughter, and made several small distributions to his grandchildren, but divided the bulk of the estate equally between Mark and one of his brothers, appellant John McCue (John). Willard’s third son, Paul, was not included in the will because of “the gifts, sales, and other provisions” made to him during Willard’s lifetime. When the will was revised in April 1986, the trust and the smaller distributions were continued. Mark’s share, however, represents approximately 97.5% of the estate or $470,000, while John’s share is $5,000.

Willard died on August 30, 1988. A hearing on the petition for formal probate of will was held on October 11,1988. John, who had recently been released from intensive care following a heart transplant, appeared at the hearing without counsel and requested a continuance of the hearing. The court denied the motion and entered an order for formal probate. On February 11, 1989, John moved to vacate the order for probate of the will. The court found that (1) John had a reasonable excuse for failing to object sooner to the allowance of Willard’s will, (2) John had acted with due diligence in bringing his motion, and (3) no substantial prejudice would result to the estate by granting the motion. The order for formal probate of the will was vacated on a finding that objections to the execution of the will were meritorious. However, a hearing on claims of undue influence and lack of testamentary capacity was denied.

ISSUE

Did the trial court abuse its discretion by granting appellant’s motion to vacate the order for formal probate of decedent’s will but limiting the hearing to the issue of its execution?

ANALYSIS

Minnesota law provides:

[T]he [probate] court shall have power to correct, modify, vacate or amend its records, orders and decrees:
* * * * * *
* * * [w]ithin two years after the date of filing of any record, order or decree, for excusable neglect, inadvertence or mistake. Minn.Stat. § 525.02(d) (1988).

The power of a probate court to vacate its order is the same as that of the district court. In re Estate of Weber, 418 N.W.2d 497, 501 (Minn.Ct.App.1988), pet. for rev. denied (April 4, 1988). An order denying a motion to vacate should not be reversed unless the denial constitutes an abuse of discretion. Weber, 418 N.W.2d at 502 (citing Howard v. Frondell, 387 N.W.2d 205, 207-08 (Minn.Ct.App.1986), pet. for rev. denied (Minn. July 31, 1986)).

To relieve a party from a final judgment for “excusable neglect” under Minn. R.Civ.P. 60.02, the Minnesota Supreme Court said:

[I]t is the duty of the trial court, in furthering justice by adopting a liberal policy conducive to the trial of causes on their merits, to grant a motion to open a * * * judgment and permit a party to answer, if the party * * * shows that he (a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) that no substantial prejudice will result to the other party.

Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952) (footnotes omitted) (emphasis in original). We conclude the same standard applies to a motion to vacate a probate order under Minn.Stat. § 525.02(d) (1988).

The trial court used the appropriate standard. The trial court found John “had a reasonable excuse for failing to object to the allowance of the will because of his health problem's.” The court also found John acted with due diligence in bringing his motion to vacate after he learned of the entry of judgment, and noted that Mark made no claim that he would be prejudiced by a hearing on the admissibility of the will [512]*512to probate. The court reasoned that contradictory evidence over the validity of the execution of the will gave rise to a “meritorious defense in favor of the contestants.”

Respondent, however, argues that Willard’s will was self-proved and, consequently, proper execution is conclusively presumed.

[Compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal * * * unless there is proof of fraud or forgery affecting the acknowledgement or affidavit.

Minn.Stat. § 524.3-406(b) (1988).

Respondent acknowledges that this claim of conclusive “signature requirements” was not presented to the trial court. Nor did appellant argue at the trial level that the statements of witnesses and notaries established a fraud or forgery. The scope of review for an appellate court “is necessarily limited to issues which the record establishes were actually raised in, and decided by, the trial court. In re Estate of Magnus,

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Related

In Re the Estate of McCue
449 N.W.2d 509 (Court of Appeals of Minnesota, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
449 N.W.2d 509, 1989 Minn. App. LEXIS 1374, 1990 WL 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mccue-minnctapp-1990.