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 02:45pm

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:

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
30	03/22/2002	MANDATE
31	03/28/2002	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
32	09/18/2007	EXPUNGED - Nonpermanent record items destroyed

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