McNamara v. Feist
2012 ND 62
| N.D. | 2012Background
- Edith Harms’ 1995 will creates Share A and Trust B, funded to maximize the federal unified credit (marital deduction).
- After Edith’s death in 2001, Arne Harms as personal representative distributed assets to himself, prompting objections by Thomas McNamara (Edith’s son).
- Arne later transferred property to the Edith Harms testamentary trust (Trust B) and proposed distributions via an amended notice of proposed distribution in 2002.
- Arne and Thomas McNamara died; in 2010-2011 William McNamara and Cheryl Feist were appointed co-personal representatives and sought distribution of undistributed assets (including mineral rights and a checking account).
- The district court held the undistributed assets pass to Arne Harms’ estate; McNamara appealed.
- The Supreme Court reversed and remanded, holding the district court misinterpreted the will and directing it to fund Trust B first using Edith Harms’ available unified credit and then fund Share A if any assets remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of rights by Feist | McNamara: Feist’s actions constituted an implied waiver. | Feist: waiver requires court-accepted agreement; amended notice not binding. | Waiver not established as a matter of law. |
| Whether amended notice constitutes a binding family settlement | McNamara: amended notice binding under probate settlement rules. | Feist: issue not properly raised; amended notice not court decision binding on appeal. | Issue not raised below; not considered on appeal. |
| Interpretation of Item V to fund Trust B first | McNamara: will directs undistributed assets to arise under the Trust/Share structure as drafted; trusts not necessarily funded first. | Feist: district court properly analyzed; funds first to Share A then Trust B. | Item V unambiguously funds Trust B to the extent of Edith Harms’ unified credit; Trust B first. |
| Remand for value determinations and proper distribution | McNamara: district court must apply correct formula with precise values. | Feist: proper distribution follows the court’s interpretation once values are determined. | Remand to determine residuary estate value and applicable exclusion; fund Trust B first, then Share A. |
Key Cases Cited
- Pfeifle v. Tanabe, 620 N.W.2d 167 (ND 2000) (waiver generally a fact question; not per se implied waiver)
- First Int'l Bank & Trust v. Peterson, 776 N.W.2d 543 (ND 2009) (waiver and issue preservation matters)
- Estate of Eggl, 783 N.W.2d 36 (ND 2010) (de novo review of questions of law)
- Matter of Hirsch Trust, 770 N.W.2d 225 (ND 2009) (issues not properly raised are precluded on appeal)