924 N.W.2d 762
N.D.2019Background
- Decedent Ann Biel Brandt died in 2014; her will residuary devised equally to her three children: Kathleen Bouchard, Thomas Biel, and Marilyn Knudson.
- Biel and Knudson (acting in 2013 under a 2007 power of attorney) created the Ann Biel Brandt Legacy Trust and transferred certain real property to it; Bouchard contested the transfers and later was appointed personal representative over their objection.
- A 1996 deed had conveyed surface and mineral rights to Knudson’s son and daughter‑in‑law "subject to a life estate" for the Brandts; oil production began in 2010 and payments were misdirected until corrected.
- Bouchard, both as personal representative and as an interested devisee, filed petitions in probate and a separate civil action to determine Brandt’s rights and the value of mineral royalties; probate court determined the Legacy Trust was void and included the trust property and Brandt’s life‑estate mineral revenue in the Estate.
- The probate court valued the Estate’s interest in the pending civil action at $197,117.11, allocated that value equally among the three children (with cash distributions), approved reimbursement to Bouchard for certain expenses and attorney fees (including pre‑appointment fees), denied Biel and Knudson’s fee requests, and entered final accounting and distribution.
Issues
| Issue | Plaintiff's Argument (Biel/Knudson) | Defendant's Argument (Bouchard/Estate) | Held |
|---|---|---|---|
| Whether a personal representative may also file as an "interested person" in supervised probate | N/K: Bouchard should be barred from acting in both capacities because of conflict | Statutes allow interested persons to petition; PR remains fiduciary and subject to court direction | PR may concurrently act as an interested person in supervised proceedings; probate court did not err |
| Whether probate court had jurisdiction to invalidate the Legacy Trust and determine title/value of mineral interests and pending civil action | Court lacked authority to adjudicate separate civil claims/values and the Trust should control distribution | District probate courts have exclusive jurisdiction to determine title to property alleged to belong to the estate and to value estate assets | Probate court had subject‑matter and personal jurisdiction; it properly determined the Trust was void and included property in the Estate |
| Sufficiency of procedure/evidence (unsigned affidavits, lack of oral testimony, cross‑examination) and valuation of litigation asset | Procedures and lack of sworn affidavits/tearing testimony deprived them of due process; valuation was erroneous | Filings are deemed to include oath under probate statute; parties got notice; evidence supported valuation | Petitions were sufficient under N.D.C.C. § 30.1‑02‑07; appellants’ procedural complaints not preserved on appeal; valuation not clearly erroneous |
| Reimbursement and attorney fees (pre‑death expenses, pre‑appointment fees, Estate counsel fees, appellants’ fee requests) | Bouchard not entitled to reimbursement for pre‑death acts or pre‑appointment counsel; Estate counsel fees partly for Bouchard’s benefit; appellants should get equitable fees | Statutes allow PR powers to relate back; fees and expenses that benefitted the Estate are recoverable; Estate counsel fees were reasonable | Court did not abuse discretion: awarded Bouchard reasonable pre‑appointment fees and expenses; approved Estate counsel fees; denied appellants’ fee requests |
Key Cases Cited
- Estate of Hogen v. 863 N.W.2d 876 (N.D. 2015) (statutory interpretation principles for probate statutes)
- Estate of Lutz v. 620 N.W.2d 589 (N.D. 2000) (family caregiver services presumed gratuitous; exceptions for extraordinary services)
- Matter of Curtiss A. Hogen Trust B v. 911 N.W.2d 305 (N.D. 2018) (probate/valuation of contingent trust claims)
- Estate of Flaherty v. 484 N.W.2d 515 (N.D. 1992) (attorney fees by personal representative may be charged to estate)
- Estate of Johnson v. 897 N.W.2d 921 (N.D. 2017) (standards for reviewing probate accounting and fee awards)