Probating a Will Copy in North Dakota

Probating a Will Copy in North Dakota is possible, but not guaranteed.

A person who dies having executed a valid Will – otherwise known as a testamentary instrument – is said to have died testate, and is referred to as a testator.

If a testator dies owning real or personal property in North Dakota, and the surviving family members are able to locate:

a copy of the testator’s Will,
but not the original of the testator’s Will,

can the copy of the testator’s Will be accepted for probate in North Dakota?

Yes – if the proponents of Probating a Will Copy in North Dakota can meet certain procedural, and evidentiary, requirements.

Manner of Revocation of Wills

N.D.C.C. Section 30.1-08-07

N.D.C.C. Section 30.1-08-07(1) identifies the manner in which a testator can revoke a Will, by providing in part as follows:

A will or any part thereof is revoked: A. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or B. By performing a revocatory act on the will,

if the testator performed the act with the intent and for the purpose of revoking the will or part or

if another individual performed the act in the testator’s conscious presence and by the testator’s direction.

For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it.

A burning, tearing, or canceling is a “revocatory act on the will“, whether or not the burn, tear, or cancellation touched any of the words on the will.

Revocation of Will by Subsequent Instrument

As identified above, the first method by which a testator can revoke a Will is by executing a subsequent will that revokes the previous will (or any part thereof), either expressly, or merely by being inconsistent with the terms of the former Will.

Revocation of Will by Other Action

The second method by which a testator can revoke a Will is by burning, tearing, canceling, obliterating, or destroying the Will or any part of it, with the intent – and for the purpose – of revoking the will (or any part thereof).

Probating a Will Copy in North Dakota

Estate of Conley;

2008 ND 148; 753 NW2d 384

In the Estate of Conley, the North Dakota Supreme Court declared that North Dakota generally applies the common law presumption that if the original Will cannot be provided to the Court, the Will was revoked by the testator by performing a revocatory act on the will – which can only be overcome by a preponderance of evidence to the contrary.

The Testator’s Survivors

In the Estate of Conley, the testator died in 2001, survived by one brother, two sisters, and two nephews whose father was the testator’s predeceased brother.

The testator had never married, and had no children.

The heirs entitled to receive his intestate estate if there was no Will admitted to probate included:

his surviving brother,
his two sisters, and
the two nephews whose father was the testator’s predeceased brother

The Testator’s Will

While the testator had executed a Will in 1982, the original Will could not be located.

Pursuant to the terms of the 1982 Will, one of the testator’s surviving sisters would be entitled to receive the entire probate estate.

2005 Application for Appointment

In 2001, the two sons of the predeceased brother petitioned for appointment as co-personal representatives of the estate of the testator in intestacy – meaning that they were not offering any Will for probate.

2006 Petition for Probate

After the two nephews provided the required notice of their application to the testator’s surviving brother and sisters, one of the sisters filed with the Court a Petition to Establish Testacy and Right of Succession to the Estate Assets, requesting that a conformed copy of the testator’s 1982 Will be admitted to probate.

2006 Response to the Petition for Probate

The two nephews, who had already been appointed as co-personal representatives of the estate, responded to the sister’s Petition by filing a motion, asserting the legal presumption that since the original Will had not been found, the testator had revoked any and all prior wills, and had died intestate – the condition when a person dies without having executed a valid Will, or having revoked all previously executed Wills.

Affidavits Filed Prior to the Hearing

(i) Surviving Brother’s Affidavit

The surviving brother’s affidavit filed with the Court asserted that:

he had seen the Will within six months of the testator’s death;
just prior to the testator’s death, the testator had asked the surviving brother to take him to a lawyer so he could change his Will, and
it was his opinion that the testator had revoked the Will.

(ii) Surviving Sister’s Affidavit

The affidavit of the surviving sister filed with the Court – who was the proponent of the copy of the Will – asserted that:

the testator had never indicated to her that he intended to revoke the 1982 Will;

and that

the testator had stated to her that he intended for her to receive the property at issue pursuant to the Will.

Probating a Will Copy in North Dakota

2007 District Court Hearing

The district court conducted a hearing on the estate in 2007, and held for the surviving sister with respect to Probating a Will Copy in North Dakota.

The two sons, who had been appointed as co-personal representatives of the estate, appealed the decision to the North Dakota Supreme Court.

Probating a Will Copy in North Dakota

2008 Supreme Court Decision

The North Dakota Supreme Court began its analysis by reciting the provisions of N.D.C.C. Section 30.1-08-07(1), which identifies the manner in which a testator can revoke a Will, but does not address the issue of a missing Will.

This statute does not specifically speak to the effect of losing or misplacing a will; rather, this section discusses physical acts or acts of writing that may be used by a testator to revoke a will.

No portion of N.D.C.C. ch. 30.1-08 provides a specific provision explaining the effect of factual circumstances in which a testator loses or misplaces a will.

Section 30.1-08-07, N.D.C.C., does not lack clarity, nor does it conflict with another statute on point.

This provision is merely silent as to the loss of a will.

The commentary in N.D.C.C. § 30.1-08-07(1)(a) and (b) does not deliver any guidance on this point.

[¶18] While N.D.C.C. § 30.1-08-07 does not speak to admitting a lost will, the drafters of the Code did contemplate the probate of lost wills; this intent is evidenced by the commentary contained in other sections.

See N.D.C.C. § 30.1-14-03.

The commentary in N.D.C.C. § 30.1-14-03 states,

“Lost or destroyed wills must be established in formal proceedings.”

The commentary in N.D.C.C. § 30.1-14-03 further directs that the probate of a lost, destroyed, or “otherwise unavailable” will be conducted under N.D.C.C. § 30.1-15-02, which reads:

1. Petitions for formal probate of a will, or for adjudication of intestacy . . . must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section.

A petition for formal probate of a will: . . . .

c. States whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.

If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition must also state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

N.D.C.C. § 30.1-15-02(1)(c).

[¶19] Neither N.D.C.C. §§ 30.1-14-03 nor 30.1-15-02 provide specific presumptions for admitting a missing will, but these statutes clearly indicate the drafter’s intent to allow, under certain circumstances, the probate of lost or missing wills.

[¶20] To date, this Court has not had an opportunity to interpret any of the statutes related to the probate of missing wills, and thus there is no clear authority on how to probate such a will. . . .

Estate of Conley, 2008 ND 148, 753 NW2d 384, 390

The North Dakota Supreme Court identified a common law presumption of revocation of a will – known by the Latin phrase amino revocandi – if the original cannot be found after the death of the testator, which may preclude Probating a Will Copy in North Dakota.

[¶21] The amino revocandi presumption is founded upon the observation that

[p]ersons in general keep their wills in places of safety, or, as we here technically express it, among their papers of moment and concern.

They are instruments in their nature revocable: testamentary intention is ambulatory till death; and if the instrument be not found in the repositories of the test[at]or, where he had placed it, the common sense of the matter, prima facie, is that he himself destroyed it, meaning to revoke it . . . .

Matter of Hartman’s Estate, 563 P.2d 569, 571 (Mont. 1977) (citations and internal quotations omitted).

The presumption intends to protect the testator’s right to “change [his will] at pleasure” and recognizes “that wills are almost always destroyed secretly.”

Tipton’s Estate, 113 N.W.2d 644, 647 (Neb. 1962).

Consequently, when a will cannot be found upon the death of the testator, the presumption arises that the testator secretly chose to revoke the missing will.

Id.

The fact that a conformed copy of the missing will is in the office of the attorney who drafted it does not alter the rationale for the presumption.

Estate of Conley, 2008 ND 148, 753 NW2d 384, 390

The North Dakota Supreme Court then declared that the common law presumption of revocation of a will – amino revocandi – is generally applicable in North Dakota if the original Will cannot be found after the death of the testator, which may preclude Probating a Will Copy in North Dakota.

[¶24] Like Montana, we conclude the repeal of the pre-Code statute did not repeal the common law presumption of animo revocandi. To interpret and apply Uniform Laws uniformly, we therefore join the majority of jurisdictions that have adopted the Code and that have concluded the presumption of animo revocandi can be and will be used with the Code.

See Estate of Mecello, 633 N.W.2d 892, 899-903 (Neb. 2001); Estate of Phillips, 833 N.E.2d 895, 901 (Ill. App. 2005).

Estate of Conley, 2008 ND 148, 753 NW2d384, 391

The North Dakota Supreme Court then identified how and when the common law is applicable in North Dakota:

North Dakota incorporates the common law as part of the law of North Dakota.

“The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law.”

N.D.C.C. § 1-01-03(7).

“The common law is therefore adopted by statute as the basic law applicable to civil rights and remedies not defined by the statute.

Where there is no express constitutional or statutory declaration upon the subject the common law is applied.”

Tarpo v. Bowman Pub. Sch. Dist., 232 N.W.2d 67, 70 (N.D. 1975) (quoting McLaughlin Oil Co. v. First State Bank of Buffalo, 57 N.W.2d 860, 864 (N.D. 1953) (internal citations omitted).

In this case, because there is no express law regarding the animo revocandi presumption, the common law is applied.

Zueger v. Carlson, 542 N.W.2d 92, 95-96 (N.D. 1996).

[¶26] Section 1-01-05, N.D.C.C., states that

“[t]he evidence of the common law is found in the decisions of the tribunals.”

Section 1-01-05, N.D.C.C., does not provide that the common law is derived only from the decisions of North Dakota tribunals.

This Court has been called upon to discuss the source and breadth of the common law:

In determining the common law of this state we are not restricted to the law as it has evolved over the centuries in England.

The common law, which is based on reason and public policy, can best be determined by studying the decisions of our federal and state courts and the writings of past and present students of our country’s law over all the years of American judicial history.

This is not to say that help in determining the common law may not be found by studying the ancient law of England, but we are in no wise limited to such a study for a determination of the common law of North Dakota.

Lembke v. Unke, 171 N.W.2d 837, 842 (N.D. 1969).

Estate of Conley, 2008 ND 148, 753 NW2d 384, 392

. . . the animo revocandi presumption was an English common law rule, which was carried over and adopted by a majority of jurisdictions in the United States.

The presumption exists at common law, and the district court erred in deciding such a presumption could not and did not exist because that issue had not been adjudicated by this Court.

We adopt the presumption and must turn to the question of what standard of evidence is required to rebut the presumption.

Estate of Conley, 2008 ND 148, 753 NW2d 384, 392

Probating a Will Copy in North Dakota – Standard of Proof Required to Rebut the Presumption

The North Dakota Supreme Court then identified that a preponderance of the evidence – which is somewhat less than a clear and convincing standard – is required in order to overcome the common law presumption against the admission of anything other than the original Will in North Dakota, and allow for Probating a Will Copy in North Dakota.:

Because the presumption in the instant case is one derived of the common law, and not one in a statute that provides its own evidentiary burden, N.D.R.Evid. 301(a) requires the party seeking to probate the missing will to demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.

Estate of Conley, 2008 ND 148, 753 NW2d 384, 392

Probating a Will Copy in North Dakota – Procedural Requirements to Rebut the Presumption

The North Dakota Supreme Court then identified the procedural requirements necessary for Probating a Will Copy in North Dakota:

[¶29] A party requesting the probate of a missing will must first comply with the procedures required under N.D.C.C. § 30.1-15-02(1)(c), which requires the party petitioning to probate the missing will to

“[s]tate[] whether the original of the last will of the decedent is in the possession of the court or accompanies the petition[,]”

and

“[i]f the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.”

See also Matter of Hartman’s Estate, 563 P.2d 569, 571 (Mont. 1977) (providing a statutory provision, identical to N.D.C.C. § 30.1-15-02(1)(c), and explaining that the party seeking the probate of the lost will must comply with such requirements in the petition).

After meeting the requirements of the petition provided in N.D.C.C. §30.1-15-02(1)(c), the party petitioning for the probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator’s death, that the will was fraudulently destroyed in the lifetime of the testator, or by other evidence demonstrating the testator did not intend to revoke the missing will.

N.D.R.Evid. 301(a) (stating the preponderance standard for presumptions);

Estate of Mason, 346 S.E.2d 28, 31 (S.C. App. 1986) (citing Lowell v. Fickling, 36 S.E.2d 293, 295 (1945) (emphasis in original) (“Once this presumption arises, the proponent of the missing will has the burden of rebutting it by showing either that: the will existed at the time of the testator’s death, was lost after his death, or was destroyed by a third party without the testator’s knowledge or consent.”);

Estate of Mecello, 633 N.W.2d 892, 901 (Neb. 2001) (providing that the presumption may be rebutted by several methods, so long as the missing will’s proponent provides “circumstantial or other evidence to the contrary”).

Only after the petitioners meet the requirements for the petition, as provided in N.D.C.C. §30.1-15-02(1)(c), and rebut, by a preponderance of the evidence, the presumption that a missing will is revoked, may a conformed copy of the will be probated.

Estate of Conley, 2008 ND 148, 753 NW2d 384, 392

In the Estate of Conley, the North Dakota Supreme Court determined that while one of the surviving sisters obtained a “conformed copy” of the Will from the attorney who had prepared the Will and offered it for probate in lieu of the missing original Will, the district court failed to apply the proper required test in determining whether such copy should be admitted to probate.

The matter was then remanded back to the district court for a determination of the issue of Probating a Will Copy in North Dakota using the above identified standards.

Estate of Conley, 2008 ND 148, 753 NW2d 384, 393

Probating a Will Copy in North Dakota – N.D.C.C. § 30.1-15-02(1)(c)

As recited in the Estate of Conley decision, N.D.C.C. Section 30.1-15-02(1)(c) identifies requirements for the initial probate documents in order to seek the admission of a copy of the Will to probate, by providing in part as follows:

1. Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, andcontain further statements as indicated in this section.

A petition for formal probate of a will:

C. States whether the original of the last will of the decedentis in the possession of the court oraccompanies the petition.

If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

“Authenticated” and “Certified” Documents

Please note that “authenticated” documents are generally different than “certified” documents.

In many states, an “authenticated” document will provide that:

the signing judge certifies that the court clerk who certified the document properly holds the office of court clerk, and
the court clerk certifies that the signing judge properly holds the office of judge.

In contrast, a certified document will generally state that the court clerk certifies that the copy which has been produced is a true and correct copy of the original document, and when applicable, is still in effect.

Certification Statements

One certification statement of a certified copy of a Will issued by the probate court in Meade County, South Dakota, read as follows:

STATE OF SOUTH DAKOTA, FOURTH JUDICIAL CIRCUIT COURT

I hereby certify the within document to be a true and correct copy of the original will on file in this office. I further certify that the document was (formally/informally) admitted to probate, and that at the time of death, the decedent was domiciled in the State of South Dakota.

Courts in some states, or even counties within certain states, may not issue “authenticated” documents.

Exemplified Documents

For example, in certain Minnesota counties, the Court does not issue “authenticated” documents – but rather a similar document known as an “exemplified” document.

However, whether such documents are referred to as authenticated documents, or certified documents, perhaps the key requirement is that the original will was “probated“, or “admitted to probate“, in such jurisdiction.

Probating a Will Copy in North Dakota – Must Proceed Formally in North Dakota.

In any event, a person seeking to admit a copy of a Will to probate in North Dakota must proceed formally, with a hearing held on the petition, after notice is provided to all known interested persons, and notice of the hearing is published in a legal newspaper in the county of the hearing.

Probating a Will Copy in North Dakota – Requisite Foundational Facts

In 2012 in the Estate of Clemetson, the North Dakota Supreme Court upheld a District Court’s refusal with respect to Probating a Will Copy in North Dakota by reason of the common law presumption of revocation of a will if the original cannot be found after the death of the testator.

Estate of Clemetson v. Evanson, 812 N.W.2d 388, 2012 ND 28 (N.D., 2012)

However, in that decision the North Dakota Supreme Court identified a preliminary foundational requirement before such a presumption can be applied:

[¶ 10] “Before a presumption arises, the party seeking to rely upon it must prove the requisite foundational facts by credible evidence.”

Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d 401, 406 (N.D.1989);

see also N.D.R.Ev. 301;

Eddy v. Lee, 312 N.W.2d 326, 330 (N.D.1981) (“the party wishing to rely upon a presumption created by law must introduce credible evidence to establish the presumption before it will be effective”).

Estate of Clemetson v. Evanson, 812 N.W.2d 388, 392, 2012 ND 28 (N.D., 2012)

Once the presumption arises

“the party petitioning for the probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator’s death, that the will was fraudulently destroyed in the lifetime of the testator, or by other evidence demonstrating the testator did not intend to revoke the missing will.”

Conley, 2008 ND 148, ¶ 29, 753 N.W.2d 384.

Estate of Clemetson v. Evanson, 812 N.W.2d 388, 393, 2012 ND 28 (N.D., 2012)

The party seeking to rely upon the presumption of revocation would be the party claiming that if the original Will cannot be found, it must have been revoked.

Such a party must have diligently looked for the original Will, before declaring that it could not be found.

[¶ 11] Whether a presumption arises, and whether a presumption has been rebutted, are questions of fact governed by the clearly erroneous standard of review under N.D.R.Civ.P. 52(a).

See Estate of Howser, 2002 ND 33, ¶ 7, 639 N.W.2d 485 (whether presumption rebutted);

Durward v. Nelson, 481 N.W.2d 586, 589 (N.D.1992) (whether presumption applicable).

A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made.

Carlson v. Carlson, 2011 ND 168, ¶ 15, 802 N.W.2d 436.

Under N.D.R.Civ.P. 52(a), we do not re-weigh conflicting evidence and we give due regard to the district court’s opportunity to judge the credibility of the witnesses.

In re K.B., 2011 ND 152, ¶ 8, 801 N.W.2d 416.

A district court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the district court.

Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144.

[¶ 20] Philip Sprague argues Kenneth Evanson failed to meet his burden to prove that Harriet Clemetson’s will “could not have been found” because he

“cannot just testify, as he did, that he looked once, by himself, and concluded he could not find it.”

For the presumption to arise, Kenneth Evanson had the burden of proving by “credible evidence” that the will could not be found upon Harriet Clemetson’s death.

See N.D.R.Ev. 301; Conley, 2008 ND 148, ¶ 21, 753 N.W.2d 384.

The district court found that Kenneth Evanson searched for the will at least three times, noted his testimony that no will was found after a “thorough search” of Harriet Clemetson’s belongings, and concluded

“[t]hus, under common law, the lost or missing will is presumed to have been secretly destroyed by Harriet Clemetson.”

Kenneth Evanson’s testimony about his unsuccessful searches for a will, if believed as it was by the district court here, can constitute credible evidence that the will could not be found upon the death of Harriet Clemetson.

Cf. State v. Glaesman, 545 N.W.2d 178, 182 n. 1 (N.D.1996) (indicating testimony of single witness, if credible, constitutes evidence).

Estate of Clemetson v. Evanson, 812 N.W.2d 388, 393, 2012 ND 28 (N.D., 2012)

In the 2008 Estate of Conley decision, the North Dakota Supreme Court remanded the case back to the District Court for application of the missing Will presumption of revocation test.

While neither the North Dakota Supreme Court nor the District Court expressly applied the preliminary foundational requirement identified in the 2012 Estate of Clemetson, decision, the District Court in that case had found that there had been a diligent search for the Will.

Conclusion – Probating a Will Copy in North Dakota

If a testator dies owning real or personal property in North Dakota, and the surviving family members are able to locate a copy of the testator’s Will, but not the original of the testator’s Will, Probating a Will Copy in North Dakota may be allowed if the petitioner:

meets the procedural requirements of N.D.C.C. Section 30.1-15-02(1)(c),

and

satisfies the evidentiary requirements by a preponderance of the evidence.

Gary C. Dahle – Attorney at Law
2704 Mounds View Blvd.
Mounds View, MN 55112

Phone: 763-780-8390 Fax: 763-780-1735 gary@dahlelaw.com

Licensed in Minnesota and North Dakota

Gary C. Dahle has represented clients from the countries of Canada, Norway, and Sweden, and the states of Alabama, Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Tennessee, Texas, Virginia, Washington, and Wisconsin in the United States, with respect to North Dakota mineral rights and probate issues in various North Dakota Counties.

http://www.legis.nd.gov/general-information/north-dakota-century-code

Legal Disclaimer

Information provided herein is only for general informational and educational purposes.

Minnesota and North Dakota attorney Gary C. Dahle does not represent oil companies – only owners of North Dakota mineral and royalty interests, and is currently accepting new clients.

Attorneys not licensed in North Dakota are invited to refer possible North Dakota probate issues to Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Topics of Interest – North Dakota Ancillary Probate

Topics of Interest – North Dakota Intestate Succession.

Topics of Interest – North Dakota Inheritance Laws

Topics of Interest – North Dakota Intestate Estate

Topics of Interest – North Dakota Foreign Personal Representative

Topics of Interest – North Dakota Subsequent Administration

Topics of Interest – North Dakota Mineral Rights.

Topics of Interest – North Dakota Transfer on Death Deeds

Topics of Interest – North Dakota Affidavits of Heirship

Topics of Interest – North Dakota Informal Probate

Topics of Interest – North Dakota Formal Probate

Topics of Interest – North Dakota Probate Settlements