Estate of Grenz

Filed 8/31/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 189
In the Matter of the Estate of Leo Grenz, Deceased
Kelly Grenz, personal representative of
the Estate of Leo Grenz, deceased, Petitioner and Appellant
v.
Donavin Grenz, David Grenz, Respondents and Appellees
and
Lee Atta Horner and Kelly Grenz,
personal representative of the Estate of
Sally Grenz, Respondents
No. 20190363
Appeal from the District Court of Emmons County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices VandeWalle and Crothers joined. Surrogate Judge Sandstrom filed a
dissenting opinion.
Timothy D. Lervick, Bismarck, N.D., for petitioner and appellant and
respondent Kelly Grenz.
Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, N.D., for
respondents and appellees Donavin Grenz and David Grenz.
Estate of Grenz
No. 20190363
Tufte, Justice.
Kelly Grenz, as personal representative of the Estate of Leo Grenz,
appeals from orders and judgments partially invalidating the will of Leo Grenz.
The district court invalidated a portion of the will resulting from undue
influence and gave effect to a portion of a contingent distribution clause the
court found was consistent with Leo Grenz’s testamentary intent. We affirm,
concluding the court properly applied the equitable doctrine of partial
invalidity.
I
Leo Grenz died testate. Leo and his second wife, Sally Grenz, had one
child together, Kelly Grenz. Leo also had three children with his first wife:
Donavin Grenz, David Grenz, and Lee Atta Horner. Leo Grenz was survived
by Sally Grenz and all of his children. Sally Grenz died during these
proceedings. She has been replaced by Kelly Grenz as the personal
representative of her estate.
Leo Grenz’s will disposes of his estate, and, as relevant to this appeal,
the shares he owned in JT Ranch, via its residuary clause, which provides:
ARTICLE FIVE. RESIDUE.
A. Surviving Spouse. I give and devise all of the rest, residue
and remainder of my property of every kind and description,
wherever situated and whether acquired before or after the
execution of this Will, to my spouse, Sally Grenz, if she shall
survive me.
B. Children. In the event that my spouse does not survive me,
I make the following bequests:
(1) I give and devise an undivided one-third of my stock in
JT Ranch, Inc., to each of my sons, namely, Donavin
Grenz, David Grenz and Kelly Grenz.
(2) I give and devise to my daughter, Leatta Horner, the
sum of $10,000.00.
1
(3) I give and devise all of the rest, residue and remainder
of my property of every kind and description, wherever
situated and whether acquired before or after the
execution of this Will, to my son and daughter-in-law,
Kelly Grenz and Kelley Grenz, in equal shares.
The will was admitted to probate, and Kelly Grenz was appointed
personal representative. Donavin Grenz and David Grenz objected to the
probate, arguing Leo Grenz intended to devise his ownership in JT Ranch to
them but he was unduly influenced not to do so by Sally Grenz and Kelly
Grenz.
The district court held a hearing on the objection. On the basis of
consistent statements over many years that Leo Grenz made to his family
members and to an individual who rented a portion of JT Ranch, the court
found Leo Grenz’s testamentary intent was for the ranch shares to go to
Donavin Grenz and David Grenz. The court found Leo Grenz was suffering
from Parkinson’s disease and declining memory when he executed the will.
The court also found Sally Grenz and Kelly Grenz isolated Leo Grenz from his
other family members and they transported him to appointments with the
attorney who prepared the will, which they also attended.
The district court concluded that Sally Grenz and Kelly Grenz exercised
undue influence over Leo Grenz and that the will’s disposition of the JT Ranch
shares was contrary to his testamentary intent. To accomplish Leo Grenz’s
testamentary intent, the court ordered the portions of the will’s residuary
clause to be struck to the extent they devised the JT Ranch shares to Sally
Grenz and Kelly Grenz. The court gave effect to a portion of the contingent
distribution clause that favored Donavin Grenz and David Grenz and ordered
the JT Ranch shares be distributed to them.
II
Kelly Grenz argues the district court improperly “rewrote” the will. He
does not challenge the district court’s finding regarding Leo Grenz’s
testamentary intent or the court’s determination that he and Sally Grenz
exercised undue influence. Nor does he challenge the court’s decision to
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partially invalidate the will. However, he argues that because of his and Sally
Grenz’s undue influence, the will does not effectively dispose of the JT Ranch
shares. He therefore claims the shares should be distributed according to
intestate succession.
Donavin Grenz and David Grenz argue the district court properly
applied the doctrine of partial invalidity to avoid an unjust result. They note
that under the laws of intestacy, Sally Grenz’s estate would acquire the
majority of the shares, and Kelly Grenz would be entitled to a share as Leo
Grenz’s descendant plus the interests he inherits from Sally Grenz. They claim
the court properly applied its equitable powers to accomplish Leo Grenz’s
testamentary intent and to prohibit the wrongdoers from benefitting from their
misconduct.
A
Although neither party objects to the district court’s application of the
doctrine of partial invalidity, we must determine whether it is a remedy
available under North Dakota law. The answer to that question, which we have
not decided, is necessary for us to determine whether the relief granted by the
district court was proper.
The doctrine of partial invalidity allows a court to separate a portion of
a will that is the product of undue influence from other portions of the will that
are valid:
[T]he great majority of American jurisdictions have endorsed the
view that where a part of a testamentary instrument is shown to
have been the result of undue influence and therefore not the
testator’s will, other portions of the instrument may nevertheless
be given effect, at least if such other portions are separable from
the concededly invalid ones.
Alan R. Gilbert, Annotation, Partial Invalidity of a Will, 64 A.L.R. 3d 261
(1975). Courts do not apply the doctrine when it will “defeat the manifest intent
of the testator, interfere with the general scheme of distribution, or work an
injustice to other heirs.” 79 Am. Jur. 2d Wills § 357 (2d ed. 2020). See also
Estate of Lloyd, 189 N.W.2d 515, 520 (S.D. 1971).
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Prior to North Dakota’s adoption of the Uniform Probate Code, this
Court applied the doctrine of partial invalidity in Black v. Smith, 58 N.D. 109,
224 N.W. 915 (1929). The testator and his wife became severely ill, and the
testator’s wife died. Id. at 917. Shortly after her death, the testator executed
a will. Id. There was a factual dispute concerning whether the beneficiaries
allowed the testator to execute the will while concealing from him the fact that
his wife had died. Id. at 923-24. Because she had predeceased him, he had
inherited her property and his will governed its disposition. Id. at 920. The
will was challenged, and on appeal this Court explained that even if the
beneficiaries’ motive for concealing the wife’s death was not malicious, their
behavior was still fraudulent. Id. at 924. The Court then held the fraud could
only invalidate the portion of the will that was fraudulently induced:
[T]he effect of any fraud resulting from an innocent concealment
of the fact of [the wife’s] death would . . . extend no further than to
render void the will in so far as it would operate upon the property
which the deceased had inherited from his wife almost
immediately before the making of the will. A majority of the court
is agreed that it was error to submit the question of fraud to the
jury in such a manner as to warrant the setting aside of the will
altogether on that account, and that at most it could have had but
the limited effect indicated.
Id. at 925.
Although our common law recognizes the doctrine of partial invalidity,
“there is no common law in any case in which the law is declared by the
code.” N.D.C.C. § 1-01-06. The Uniform Probate Code now governs probate
proceedings in North Dakota. See N.D.C.C. tit. 30.1. We must therefore
determine whether it has supplanted our common law rule.
In Estate of Conley, 2008 ND 148, 753 N.W.2d 384, we were tasked with
determining whether the Uniform Probate Code displaced the common law
presumption of animo revocandi, which assumes a lost will was intentionally
revoked. We noted that the Uniform Probate Code did not provide specific
guidance on the issue. Id. at ¶¶ 18-20. Citing N.D.C.C. § 1-01-03(7), which
incorporates North Dakota’s common law into its general body of law, we
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reasoned the common law presumption applied “because there is no express
law regarding the animo revocandi presumption.” Id. at ¶¶ 25, 27.
Similar to Estate of Conley, North Dakota’s Uniform Probate Code is
silent on the issue of whether it supplanted the prior common law rule of
partial invalidity. There is no provision expressly allowing it; nor is there one
expressly prohibiting it. Given this uncertainty, we look to our neighboring
jurisdiction of South Dakota, which is a Uniform Probate Code state and has
faced a similar issue. N.D.C.C. § 1-02-13 (stating a “uniform statute must be
so construed . . . to make uniform the law of those states which enact it”); Estate
of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594 (considering Uniform
Probate Code editorial board comments and decisions of other uniform
jurisdictions for guidance).
In Estate of O’Keefe, 1998 SD 92, 583 N.W.2d 138, the beneficiaries of a
will inflicted fraud upon the testator while he was alive. Id. at ¶ 3. After he
died, the testator’s estate sued the beneficiaries and was awarded damages.
Id. An innocent beneficiary petitioned the court to prohibit the wrongdoers
from sharing in the award, a portion of which they were entitled to under the
terms of the will. Id. at ¶ 4. The wrongdoers argued the court had no authority
to act contrary to the will. Id. at ¶ 9. They claimed South Dakota’s adoption
of the Uniform Probate Code foreclosed the equitable power of courts sitting in
probate. Id. at ¶ 10.
The Supreme Court of South Dakota disagreed. It noted that, under
South Dakota law, rules of equity supplement the Uniform Probate Code where
it is silent. O’Keefe, 1998 SD 92, ¶ 10, 583 N.W.2d 138. The court found
guidance in the Uniform Probate Code provision prohibiting slayers from
inheriting from their victims. Id. at ¶ 13. The court reasoned that South
Dakota has a similar public policy that prohibits perpetrators of fraud from
benefitting from their misconduct. Id. at ¶ 14. It held the probate court could
prohibit the wrongdoers from taking a share of the estate to which they were
otherwise entitled under the terms of the will. Id.
As in South Dakota, the district courts of this State are courts of general
jurisdiction with equitable powers. N.D.C.C. § 27-05-06(3). The Legislature
5
has given the district courts the power to fashion remedies in both law and
equity “necessary to . . . the full and complete administration of justice.” Id.
There is no exception or limitation in probate proceedings. Cf. Estate of
Rohrich, 496 N.W.2d 566, 571-72 (N.D. 1993) (overturning prior decisions that
held county courts sitting in probate could not exercise equitable jurisdiction).
We also follow the principle that “a wrongdoer may not take advantage of his
own wrong against the victim of his wrongdoing.” Beavers v. Walters, 537
N.W.2d 647, 650-51 (N.D. 1995). That maxim has been codified. N.D.C.C.
§ 31-11-05(8) (“A person cannot take advantage of that person’s own wrong.”).
We conclude the doctrine of partial invalidity is an available remedy
under North Dakota law. It is part of our common law. It is consistent with
the jurisdiction of our district courts. There is nothing in the Uniform Probate
Code to indicate the legislature intended to supplant it. And it follows our
codified public policy against wrongdoers benefiting from their wrongs. We
make this determination while keeping in mind that “equity follows the letter
and the spirit of the law and courts of equity are bound by and must follow and
apply the principles of substantive law.” Schwarting v. Schwarting, 354
N.W.2d 706, 708 (N.D. 1984). See also Estate of Voeller, 534 N.W.2d 24, 26
(N.D. 1995) (“an equitable remedy cannot avoid the meaning of an
unambiguous statute”).
B
Having determined the doctrine of partial invalidity is an available
remedy in this state, we turn to whether the district court erred in fashioning
the equitable relief it granted here.
We review a district court’s exercise of its equitable powers under the
abuse of discretion standard. Estate of Albrecht, 2018 ND 67, ¶ 23, 908 N.W.2d
135. We will not overturn a court’s exercise of its equitable powers unless it
acts arbitrarily, unreasonably, or unconscionably; its decision is not the
product of a rational mental process leading to a reasoned determination; or it
misinterprets or misapplies the law. Id.; see also Rohrich, 496 N.W.2d at 573.
6
Kelly Grenz argues the district court misapplied the law. He cites
N.D.C.C. § 30.1-04-01(1), which states, “Any part of a decedent’s estate not
effectively disposed of by will passes by intestate succession . . . .” Kelly Grenz
argues that “[a]pplying this law to the facts of the case, because Leo’s will did
not effectively dispose of his JT Ranch shares due to undue influence by Sally
and Kelly, the JT Ranch shares pass by intestate succession to Leo’s heirs.”
We are not persuaded. Courts apply “a strong presumption” that
testators do not intend for any portion of their estate to pass via intestacy and
they construe wills accordingly. Estate of Klein, 434 N.W.2d 560, 562 (N.D.
1989). The district court invalidated the will only to the extent it devised any
interest in JT Ranch to Kelly Grenz and Sally Grenz. On the basis of Leo
Grenz’s testamentary intent, the court gave effect to part of the contingent
distribution clause that devised the JT Ranch shares to Donavin Grenz and
David Grenz. Because the court gave effect to a portion of the will to distribute
the shares, it cannot be said the will did “not effectively” dispose of the JT
Ranch shares. The laws of intestacy therefore do not apply here.
When a beneficiary attempts to obtain property by undue influence, “the
beneficiary, although a survivor in fact, is not a survivor in the contemplation
of law.” Mundwiller v. Mundwiller, 822 S.W.2d 863, 866 (Mo. Ct. App. 1991).
“[A] finding of undue influence . . . is analogous to that of the murder of the
testator . . . .” Id. at 865. See also N.D.C.C. § 30.1-10-03(2) (“An individual who
intentionally and feloniously kills the decedent forfeits all benefits under this
title with respect to the decedent’s estate, including an intestate share, an
elective share, an omitted spouse’s or child’s share, a homestead allowance,
exempt property, and a family allowance.”). Whether a beneficiary whose
undue influence invalidated a will may still claim an intestate share is a
question we have not answered, and need not answer here. The district court
invalidated the portion of the will resulting from undue influence and equitably
treated the perpetrators of the undue influence as if they had not survived. We
conclude the district court did not abuse its discretion when it applied the
doctrine of partial invalidity and gave effect to a portion of Leo Grenz’s will.
7
III
We affirm the district court’s orders and judgments.
Jerod E. Tufte
Gerald W. VandeWalle
Daniel J. Crothers
Jon J. Jensen, C.J.
The Honorable Dale V. Sandstrom, Surrogate Judge, sitting in place of
McEvers, J., disqualified.
Sandstrom, Surrogate Judge, dissenting.
I respectfully dissent.
The district court rewrote the will of Leo Grenz.
The district court judgment says “the Will shall be rewritten as
follows . . . .”
The proposed judgment had been filed with the district court by the
contestants Donavin and David Grenz saying “the Will shall be rewritten as
follows . . . .”
The personal representative, the appellant here, says the district court
rewrote the will and identifies the lack of authority for the district court to
rewrite the will as the issue on appeal.
On appeal—despite what they said in the district court—the contestants
claim the district court did not rewrite the will because “all the district court
did” was rearrange words and sentences already in the will and drop other
words and change who inherits 93 percent of the estate. The contestants
Donavin and David Grenz say the only issue on appeal is whether the district
court could partially invalidate the will, something not disputed by the
personal representative.
The majority opinion dwells on the undisputed question of whether
North Dakota should recognize partial invalidity of a will, while the opinion
8
obscures the fact that the district court rewrote the will and failed to properly
apply our law.
I
The finding of undue influence was questionable, and recognition of the
doctrine of partial invalidity of a will was interesting. On appeal, the personal
representative chose to forgo any dispute on those issues, willing to accept the
remedy provided by a proper application of the law, the contested property
passing by intestacy as provided by statute.
A
Leo and Sally Grenz were approaching 40 years of marriage, apparently
without ever having prepared wills. It was a second marriage for each of them.
They each had children from their prior marriages. They had one son together,
Kelly Grenz. The three had lived as a family unit, eventually with Kelly Grenz
marrying and his spouse and their children joining them, all on the Braddock
farm. Then over a two-month period they met with a respected lawyer, and
then on October 8, 2009, Leo and Sally Grenz executed simple reciprocal wills.
Article one identified their place of residence and their families. Article two
appointed their son, Kelly Grenz, as personal representative. Article three
directed payment of expenses of administration and claims against the estate.
Article four provided for a list of tangible personal property to be left to
devisees named on the list. Article five provided that the rest of their estates
would go to the spouse, if the spouse was the survivor. The final portion of
article five provided what would happen to the property of each if the other
spouse did not survive.
On February 27, 2015, Leo Grenz died at age 89 and after more than 40
years of marriage. Under the terms of his will—after expenses, bills, and any
separately listed personal property—all of his estate passed to his wife.
More than a year later, Donavin Grenz objected, claiming his father
lacked testamentary capacity and mental ability to make a will, the will
resulted from undue influence, and the will was contrary to the intent his
father had expressed.
9
More than a year later, on July 26, 2017, a hearing was held on the
objections. Those contesting the will, Donavin and David Grenz, presented
testimony that from time-to-time over the years their father, Leo Grenz, had
said he was going to leave them his minority shares in the JT Ranch. They
dropped their claim that their father lacked testamentary capacity, which, if
established, would have completely invalidated the will. They sought to paint
a picture of their father as impaired by Parkinson’s disease and memory
problems, and no longer exercising his free will. They said his wife, Sally
Grenz, was responsible for his not attending gatherings with his “first family.”
The personal representative argued it was just as likely Leo Grenz chose to
stay away from the gatherings. His staying away was apparently nothing new.
As the district court would find, “Over the period of nearly forty years, from
the early 1970's until 2014, Leo attended only a handful of family events that
Donavin or David invited him to attend.”
Neither side called the treating physician, but Leo Grenz’s medical
records were admitted. The records reflected Parkinson’s and memory
problems by the time of the 2009 will, but the first diagnosis of Parkinson’s
Dementia was in mid-2012. The contestants called a neuropsychologist who
treats patients with Parkinson’s disease. He never saw Leo Grenz but read the
medical file and listened to the other contestant witnesses. On the basis of
what he read and heard, he said Leo Grenz would have been vulnerable to
undue influence from 2008 on. The court would find this testimony “relevant
and compelling.”
Experienced probate attorney Malcolm Brown had prepared the wills,
meeting with Leo, Sally, and Kelly Grenz and his wife twice over an eight-week
period. His notes reflect that he also was preparing wills for Kelly Grenz and
his wife. He testified he had no reason to believe that Leo Grenz lacked the
capacity to execute the will or that the will was the product of undue influence.
A year after the execution of the will, the contestant Donavin Grenz, a
lawyer and former judge, drafted for his father a power of attorney naming
Sally Grenz but limiting what she could do with the ranch interests during his
lifetime. Although in his initial filing in this will contest he had contended his
father, suffering from “parkinsonism and dementia,” had become incompetent
10
more than a year before, Donavin Grenz apparently saw no problem with his
father’s ability to execute this new document.
Sally Grenz did not testify during the hearing. She would die July 31,
2019, at age 81.
Seven months after the hearing, February 6, 2018, the court issued its
memorandum opinion and order. It found undue influence. The court wrote, “If
Leo’s Will is probated as it is currently written, Sally, and eventually Kelly and
Kelly’s wife Kelley, end up with all of Leo’s shares of JT Ranch and Donavin
and David receive nothing.” The court then directed the rewriting of the will
in the manner that will be described in detail below.
The contestants promptly filed the proposed judgment. The judgment
was entered on February 16, 2018.
B
There is nothing ambiguous about Leo Grenz’s will as written and signed
by him. He died first and his wife of more than 40 years, Sally Grenz, inherited
his entire estate. Everything to a surviving spouse is probably the most
common will provision in the state.
Under the will as rewritten by the court, Donavin and David Grenz
received more than $4.5 million, and the surviving spouse received
approximately $250,000.
Apparently, never before has this Court struck down or upheld the
striking down of a bequest to a surviving spouse on the grounds of undue
influence.
North Dakota has by code defined undue influence since statehood, now
codified as N.D.C.C. § 9-03-11:
Undue influence defined. Undue influence consists:
1. In the use, by one in whom a confidence is reposed by
another or who holds a real or apparent authority over that
11
person, of such confidence or authority for the purpose of
obtaining an unfair advantage over that person;
2. In taking an unfair advantage of another’s weakness of
mind; or
3. In taking a grossly oppressive and unfair advantage of
another’s necessities or distress.
The meaning applies throughout our law. N.D.C.C. § 1-01-09 (“Whenever the
meaning of a word or phrase is defined in any statute, such definition is
applicable to the same word or phrase wherever it occurs in the same or
subsequent statutes, except when a contrary intention plainly appears.”).
“The law does not condemn all influence, only undue influence.” Matter
of Estate of Wagner, 265 N.W.2d 459, 464 (N.D. 1978). “A mere suspicion of
undue influence is not sufficient to require submission of the question of undue
influence to the jury or to sustain a verdict.” Id. at 465; In re Burris’ Estate, 72
N.W.2d 884, 889 (N.D. 1955); Kronebusch v. Lettenmaier, 311 N.W.2d 32, 35
(N.D. 1981).
We have rejected the argument that whenever a confidential
relationship exists between a party and the testator, coupled with the same
party participating in the preparation of the will and receiving a benefit by its
terms, a presumption of undue influence arises. Matter of Estate of Polda, 349
N.W.2d 11, 15 (N.D. 1984) (quoting Matter of Estate of Thomas, 290 N.W.2d
223, 227 (N.D. 1980)).
We have long recognized the concept of “the natural objects of his bounty”
as relating to family members, see Black v. Smith, 58 N.D. 109, 224 N.W. 915,
921 (1929). Other Uniform Probate Code states have expounded on the
importance of this principal. “A failure to show an unnatural disposition
defeats a claim of undue influence. . . . Courts have consistently found that it
is not unnatural to dispose of property to family members with whom one
maintains a close relationship.” M.S. v. M.L., 89 Mass. App. Ct. 1126 (2016).
Our neighboring Uniform Probate Code State of Montana has said:
“To establish undue influence, a party must present specific
acts showing that undue influence actually was exercised upon the
12
mind of the testator directly to procure the execution of the will.”
A trier of fact should consider “the opportunity for undue influence,
including the testator’s susceptibility to influence, and whether
the disposition of property was natural.” The mere “opportunity to
exercise undue influence on the testator is not sufficient to prove
undue influence and invalidate a will. Rather, the opportunity to
exercise undue influence is to be considered and correlated with
the alleged acts of influence to determine if the acts amount to
undue influence.”
Matter of Estate of Edwards, 2017 MT 93, ¶ 56, 387 Mont. 274, 393 P.3d 639
(internal citations omitted).
This court has cautioned against seeking evidence of a testator’s “real
intent” from outside the will:
Where the language of a will is clear and unambiguous, the
intent of the decedent must be determined from the language of
the will itself. Jordan v. Anderson, 421 N.W.2d 816, 818 (N.D.
1988). Unless a duly executed will is ambiguous, the testamentary
intent is derived from the will itself, not from extrinsic evidence.
Matter of Estate of Ostby, 479 N.W.2d 866, 871 (N.D. 1992). Once
it is shown that the will was properly executed, “the executed will
is the decedent’s testamentary intent.” Id. The purpose of drafting
and executing an unambiguous will is to give it legal effect upon
death. Matter of Estate of Duemeland, 528 N.W.2d 369, 371 (N.D.
1995). A contrary holding would leave every will open to attack as
to the testator’s alleged “real” intent, and would deprive decedents
of any certainty about the eventual disposition of their estates. Id.
Matter of Estate of Brown, 1997 ND 11, ¶ 16, 559 N.W.2d 818.
Because the correct application of the law on partial invalidity of a will
yields a result acceptable to the personal representative and also presumably
because of the normally difficult clearly erroneous standard of review on a
finding of undue influence, he has not challenged the finding, even though it
appears to be based on circumstance and suspicion.
II
The district court wrongly rewrote the will.
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The Leo Grenz will provides:
ARTICLE FIVE. RESIDUE.
A. Surviving Spouse. I give and devise all of the rest, residue
and remainder of my property of every kind and description,
wherever situated and whether acquired before or after the
execution of this Will, to my spouse, Sally Grenz, if she shall
survive me.
B. Children. In the event that my spouse does not survive me,
I make the following bequests:
(1) I give and devise an undivided one-third of my stock in
JT Ranch, Inc., to each of my sons, namely, Donavin
Grenz, David Grenz and Kelly Grenz.
(2) I give and devise to my daughter, Leatta Horner, the
sum of $10,000.00.
(3) I give and devise all of the rest, residue and remainder
of my property of every kind and description, wherever
situated and whether acquired before or after the
execution of this Will, to my son and daughter-in-law,
Kelly Grenz and Kelley Grenz, in equal shares.
Under Leo Grenz’s will, the JT Ranch transfers under Five (A). With the
transfer under Five (A) invalidated, there is no other portion of the will that
transfers the property. Five (B) by its explicit language applies only if his
spouse did not survive him, and his spouse did survive him. The Uniform
Probate Code as adopted by North Dakota, N.D.C.C. § 30.1-04-01(1), provides,
“Any part of a decedent’s estate not effectively disposed of by will passes by
intestate succession to the decedent’s heirs as prescribed in this title.” With
the invalidity of the transfer of the ranch under the will, it is not effectively
disposed of by will and it passes by intestate succession.
Citing no authority at all to do so, the district court said it rewrote the
will to provide:
ARTICLE FIVE. RESIDUE.
A (1) I give and devise an undivided one-third of my stock in
JT Ranch, Inc., to each of my sons, namely, Donavin Grenz
[and] David Grenz and Kelly Grenz.
(2) Surviving Spouse. I give and devise all of the rest,
residue and remainder of my property of every kind
14
and description, wherever situated and whether
acquired before or after the execution of this Will, to
my spouse, Sally Grenz, if she shall survive me.
B. Children: In the event that my spouse does not survive me,
I make the following bequests:
(1) I give and devise to my daughter, Leatta Horner, the
sum of $10,000.00.
(2) I give and devise all of the rest, residue and remainder
of my property of every kind and description, wherever
situated and whether acquired before or after the
execution of this Will, to my son and daughter-in-law,
Kelly Grenz and Kelley Grenz, in equal shares.
Not only did the district court make the contingent grant of the ranch the
primary grant, it changed the terms of the clause that would have become
effective had the contingency arisen by striking Kelly Grenz from that grant.
A
The contestants, after having acknowledged in their proposed judgment
that the district court rewrote the will, on appeal boldly assert: “The district
court did not re-write the Will.”
In a footnote, the contestants mention two cases relating to the power of
the district court regarding probate. Matter of Estate of Peterson, 1997 ND 48,
¶¶ 14-16, 561 N.W.2d 618; Matter of Estate of Johnson, 501 N.W.2d 342, 346
(N.D. 1993). Both cases relate to poorly drafted wills. In Peterson, the district
court and this Court applied the statute: “The intention of a testator as
expressed in the testator’s will controls the legal effect of the testator’s
dispositions.” N.D.C.C. § 30.1-09-03. In Johnson, the courts had to determine
the intent of language in the will that was ambiguous and capable of disparate
meanings. Neither case is helpful to the contestants.
The contestants mention that Kelly Grenz cannot benefit from his
wrongdoing to justify rewriting the will to exclude Kelly Grenz from receiving
ranch shares. The principal is not one of substantive law but one related to
competing reasonable interpretations and is codified and limited by statute,
N.D.C.C. § 31-11-05:
15
The maxims of jurisprudence set forth in this section are not
intended to qualify any of the provisions of the laws of this state,
but to aid in their just application:
....
8. A person cannot take advantage of that person’s own
wrong.
....
So this maxim does not alter an unambiguous statute, nor does it create any
new provision of the probate code.
B
The majority fails to acknowledge the district court said it rewrote the
will. It obscures what the district court did, saying “the court gave effect to part
of the contingent distribution clause that devised the JT Ranch shares to
Donavin Grenz and David Grenz.” There are at least three problems with this
assertion.
First, that is not what the district court said it did. The district court
says it rewrote the will: “The will is rewritten as follows . . . .”
Second, if the provision in the will leaving the ranch shares to the wife
is invalidated, the contingency clause by its terms is not activated because it
was predicated on the wife’s not surviving, but the wife survived.
Third, the contingency clause it says was “given effect” was not followed
by the district court. The contingency clause in Leo Grenz’s will would have
left the ranch shares to all three sons equally, but the “contingency clause” in
the district court’s will left the property only to Donavin and David Grenz.
The majority says there is no problem with what the district court did
because it just rearranged words, sentences, and beneficiaries already there,
and renumbered things. Under this rationale, if a will says, “I leave everything
to A and nothing to B,” the will would not have been rewritten if the court had
rearranged the words to say, “I leave nothing to A and everything to B.”
16
Here is another example. Testator’s will says, “I leave $1 million to my
spouse and $1,000 to Charity X.” Charity X, a beneficiary under the will,
challenges the will, saying it was the result of undue influence by the spouse;
after all, the testator had over the years told representatives of the charity and
some others that he was going to leave the charity $1 million. Further, in later
years the testator had not accepted invitations to the charity’s events (and no
doubt that was the spouse’s fault). In declining health and having never
written a will before, the testator accompanied by the spouse visited a lawyer
and had the will prepared. The district court agrees with the charity and says
it is rearranging the words so the will reads, “I leave $1,000 to my spouse and
$1 million to Charity X.” The majority would say the will has not been
rewritten.
Section 30.1-04-01(1), N.D.C.C., says any “part of a decedent’s estate not
effectively disposed of by will passes by intestate succession.” The will that
must effectively dispose of the property is the will of the decedent, Leo Grenz
here, not the will of the district judge. The Uniform Law Commission in
drafting the Uniform Probate Code or the Legislative Assembly in its
enactment in North Dakota could have provided something different than it
did for cases where a will failed to effectively distribute property because of a
finding of undue influence. They could have said in such cases a prior will
would be resurrected, if there were one. Or they could have said in such cases
the court may devise the property as it thinks the decedent would have if there
was no undue influence. But they did not do so.
The majority opinion looks to the non-Uniform Probate Code state of
Missouri and a 29-year-old lower court opinion never adopted by that state’s
supreme court, Mundwiller v. Mundwiller, 822 S.W.2d 863, 866 (Mo. Ct. App.
1991), to argue that a finding of undue influence is “analogous” to felony
murder. It notes that North Dakota has a felony murder inheritance
disqualification statute. The problems here are legion. The district court did
not use or even suggest it was considering such a rationale. The UPC drafting
could have made such a provision but did not. The standard of proof required
for felony murder is much greater, beyond a reasonable doubt. The concept
opens the door for courts in the future to completely disinherit spouses.
17
The majority argues there is “a strong presumption” that testators do not
intend for any of their estate to pass by intestacy, citing Estate of Klein, 434
N.W.2d 560, 562 (N.D. 1989). The majority ignores that this is a principal for
courts to interpret ambiguous wills, not to write new ones.
The majority seems to suggest that a court can ignore statutes and can
ignore plain words in the name of “equity.” It cites Estate of Albrecht, 2018 ND
67, ¶ 23, 908 N.W.2d 135, a case dealing with the intersection of divorce law
and probate law, and potential equitable remedies under the divorce. The
district court is specifically vested with broad equitable powers under the
divorce laws, see, e.g., N.D.C.C. § 14-05-24, including the authority to
“redistribute property and debts.” The district court is given no such equitable
powers under the Uniform Probate Code to rewrite wills or to redistribute
property and debts. As the majority concedes in another context, “equity
follows the letter and the spirit of the law and courts of equity are bound by
and must follow and apply the principles of substantive law.” Schwarting v.
Schwarting, 354 N.W.2d 706, 708 (N.D. 1984). See also Estate of Voeller, 534
N.W.2d 24, 26 (N.D. 1995) (“an equitable remedy cannot avoid the meaning of
an unambiguous statute”). The substantive law here is that if any part of the
decedent’s estate is not effectively disposed of by the decedent’s will, it passes
to the decedent’s heirs by intestate succession. N.D.C.C. § 30.1-04-01(1).
Even without N.D.C.C. § 30.1-04-01(1) being dispositive, the authorities
are in agreement as to the effect of undue influence on a will.
If undue influence has been exerted as to some of the gifts in
the will, and there is no residuary clause, the gifts as to which the
undue influence was exerted are invalid; and the property which
was attempted to give by such invalid gifts will pass as in
intestacy.
If undue influence has been exerted as to the residuary
clause only, the residuary clause is invalid but the other gifts are
valid; and the residue will be distributed as in intestacy.
Jeffrey A. Schoenblum, Page on the Law of Wills § 15.12 (2003) (footnotes
omitted).
18
III
I would reverse and remand for the district court to distribute the shares
of JT Ranch under the laws of intestacy.
Dale V. Sandstrom, S.J.
19