Estate of Howser
In the Matter of the Estate of Irene Howser, Deceased
Kevin G. Connole
and Kim P. Connole, Petitioners and Appellants
Jerry Anderson, Personal
Representative of the
Estate of Irene Howser, Respondent and Appellee
Northeast Central Judicial District,
Judge Lawrence E. Jahnke
|Nature of Action:||Probate - Wills - Trusts|
|Term:||01/2002  Argument: 01/16/2002|
|ND cite:||2002 ND 33|
639 N.W.2d 485
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I. The trial court correctly found that the presumption of undue influence applies against the drafting attorney.
A. Section 59-01-16 sets forth a statutory presumption against trustees who obtain advantage.
B. Prior North Dakota cases have not applied Section 59-01-16 to will contests.
C. Two prior North Dakota cases have addressed attorneys as beneficiaries.
D. The conduct of attorneys in North Dakota is governed by the North Dakota Rules of Professional Conduct.
E. Rules of professional conduct are relevant in determining whether an attorney has breached an already existing civil duty or common law obligation as attorney owes to a client.
F. The trial court correctly found that Section 59-01-16 applies to attorneys who have attorney/client relationships with the testator, actively participate in the preparation of the will, and benefit by the will.
G. The benefits to the trustee under the will are such substantial incidental benefits to make it a beneficiary.
II. The trial court's finding that the will proponent has successfully rebutted the presumption of undue influence is clearly erroneous.
III. Should Jerry Anderson be removed as personal representative.
Appellee's Statement of the Issues:
I. The complaining party bears the burden of demonstrating a finding is clearly erroneous.
II. The Trial Court correctly found the will proponent successfully rebutted any presumption of undue influence.
III. The Trial Court erred in applying N.D.C.C. Section 59-01-16 to a will contest.
IV. Rules of Professional Conduct are not relevant in a will contest.
V. The Trial Court correctly held Jerry Anderson should not be removed as Personal Representative.
|Add Docket 20010185 RSS|
|1||07/27/2001 NOTICE OF APPEAL: 07/24/2001|
|2||07/27/2001 ORDER FOR TRANSCRIPT (OTR sent directly to Ct. Reptr, not filed in Tr. Ct., see PM ltr of 7-27-01): 07/24/2001|
|3||08/01/2001 RETENTION OF RECORD ON APPEAL: 09/12/2001|
|4||08/21/2001 RECORD ON APPEAL including 3 depositions. Not sent with the record was No.70 (shorthand Notes)|
|5||09/05/2001 TRANSCRIPT DATED April 5, 2001|
|6||09/06/2001 DISK - TRA of April 5, 2001|
|7||09/07/2001 Certificate of Service of Copies of Transcript (inserted into orig. TRA)|
|8||10/11/2001 MOT. EXT/TIME APPELLANT BRIEF|
|9||10/12/2001 MOT. EXT/TIME APPELLANT BRIEF (Fax copy)|
|10||10/12/2001 ACTION BY CLERK. Granted: 10/31/2001|
|11||10/31/2001 APPELLANT BRIEF|
|12||10/31/2001 APPELLANT APPENDIX|
|13||11/01/2001 DISK - ATB|
|14||11/06/2001 Docket Sheet of Lower Court and corrected Table of Contents|
|15||11/28/2001 APPELLEE BRIEF|
|16||11/30/2001 DISK - aeb|
|17||12/12/2001 REPLY BRIEF|
|18||12/13/2001 DISK of RYB|
|19||01/02/2002 Request for Radio/TV Coverage (AP) (e-mail dated 1-02-02 from Dale Wetzel) (APPROVED)|
|20||01/16/2002 APPEARANCES: Carol K. Larson, Kevin Connole & Kim Connole; Terence P. Divine|
|21||01/16/2002 ARGUED: Larson; Devine (Vol. X; Page 193)|
|22||01/16/2002 ORAL ARGUMENT WEBCAST|
|23||02/20/2002 DISPOSITION: AFFIRMED|
|24||02/20/2002 UNANIMOUS OPINION: Maring, Mary Muehlen|
|25||02/20/2002 Costs on appeal taxed in favor of Appellee.|
|26||02/21/2002 Order/Judgment Mailed to Parties|
|27||03/05/2002 PETITION FOR REHEARING|
|28||03/06/2002 DISK - PER|
|29||03/12/2002 ACTION BY SUPREME COURT (PER). Denied|
|31||03/28/2002 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|32||09/18/2007 EXPUNGED - Nonpermanent record items destroyed|