Estate of Howser

20010185 In the Matter of the Estate of Irene Howser, Deceased
--------------
Kevin G. Connole
and Kim P. Connole, Petitioners and Appellants
v.
Jerry Anderson, Personal
Representative of the
Estate of Irene Howser, Respondent and Appellee

Appeal from: District Court, Northeast Central Judicial District, Nelson County
Judge Lawrence E. Jahnke
Nature of Action: Probate - Wills - Trusts
Counsel:
Appellant: Pringle & Herigstad, P.C.
Appellee: Devine Law Office
Term: 01/2002   Argument: 01/16/2002  2:45pm
ND cite: 2002 ND 33
NW cite: 639 N.W.2d 485

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Issues: 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.

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Docket entries:
107/27/2001 NOTICE OF APPEAL: 07/24/2001
207/27/2001 ORDER FOR TRANSCRIPT (OTR sent directly to Ct. Reptr, not filed in Tr. Ct., see PM ltr of 7-27-01): 07/24/2001
308/01/2001 RETENTION OF RECORD ON APPEAL: 09/12/2001
408/21/2001 RECORD ON APPEAL including 3 depositions. Not sent with the record was No.70 (shorthand Notes)
509/05/2001 TRANSCRIPT DATED April 5, 2001
609/06/2001 DISK - TRA of April 5, 2001
709/07/2001 Certificate of Service of Copies of Transcript (inserted into orig. TRA)
810/11/2001 MOT. EXT/TIME APPELLANT BRIEF
910/12/2001 MOT. EXT/TIME APPELLANT BRIEF (Fax copy)
1010/12/2001 ACTION BY CLERK. Granted: 10/31/2001
1110/31/2001 APPELLANT BRIEF
1210/31/2001 APPELLANT APPENDIX
1311/01/2001 DISK - ATB
1411/06/2001 Docket Sheet of Lower Court and corrected Table of Contents
1511/28/2001 APPELLEE BRIEF
1611/30/2001 DISK - aeb
1712/12/2001 REPLY BRIEF
1812/13/2001 DISK of RYB
1901/02/2002 Request for Radio/TV Coverage (AP) (e-mail dated 1-02-02 from Dale Wetzel) (APPROVED)
2001/16/2002 APPEARANCES: Carol K. Larson, Kevin Connole & Kim Connole; Terence P. Divine
2101/16/2002 ARGUED: Larson; Devine (Vol. X; Page 193)
2201/16/2002 ORAL ARGUMENT WEBCAST
2302/20/2002 DISPOSITION: AFFIRMED
2402/20/2002 UNANIMOUS OPINION: Maring, Mary Muehlen
2502/20/2002 Costs on appeal taxed in favor of Appellee.
2602/21/2002 Order/Judgment Mailed to Parties
2703/05/2002 PETITION FOR REHEARING
2803/06/2002 DISK - PER
2903/12/2002 ACTION BY SUPREME COURT (PER). Denied
3003/22/2002 MANDATE
3103/28/2002 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3209/18/2007 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 04/23/2014