Sprague v. Evanson, 812 N.W.2d 388

Harriet Clemetson and Earl Clemetson were long‑time spouses with no shared children; each had children from prior relationships.
Earl’s 1995 will left property to Carolyn Sprague and Harriet, with a life estate for Harriet and a contingent remainder to Sprague’s line; Harriet’s will was prepared contemporaneously but its original has been lost.
After Earl’s death in 2009, Harriet revoked a durable power of attorney for Carolyn Sprague and removed Carolyn as a contingent beneficiary on an investment account; an agreement later allocated Harriet’s life estate to Carolyn in a farm-distribution arrangement.
Harriet died on October 2, 2009; Kenneth Evanson, Harriet’s grandson, was appointed personal representative and believed there were no unrevoked testamentary instruments with situs in North Dakota.
Philip Sprague and Carolyn Sprague’s son Phillip Sprague filed for formal probate asserting Harriet executed an undated and unsigned will naming all grandchildren and step-grandchildren as devisees; Kenneth Evanson objected and argued the missing will was revoked under the presumption of animo revocandi.
The district court found Harriet’s will had been duly executed, that it could not be found at Harriet’s death, and Sprague failed to rebut the presumption of revocation; it denied probate to Sprague and judged the heirs under intestacy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harriet’s undated, unsigned will was duly executed	Sprague argues the will was duly executed under statutory rules	Evanson contends the will was not properly executed or found, thus not probated	The will was duly executed under ND execution requirements and a prima facie case established
Whether the presumption of revocation applies and was rebutted	Sprague argues presumption did not apply or was rebutted	Evanson contends the presumption applied and Sprague failed to rebut by preponderance	Presumption of revocation applied; Sprague failed to rebut by a preponderance of the evidence
Whether Kenneth Evanson proved the missing will could not be found	Sprague asserts Evanson did not meet credible-evidence standard	Evanson showed multiple thorough searches and credibility issues resolved against Sprague	Evanson’s searches were credible; missing will could not be found, supporting presumption
Whether the evidence supports revocation by Harriet Clemetson	Sprague claims no revocation evidence was credible	Evanson presents trial credibility supporting revocation	District court’s credibility determinations support revocation finding; presumption not rebutted

Estate of Conley, 753 N.W.2d 384 (ND 2008) (presumption of lost will (animo revocandi) governs missing wills; rebuttal by preponderance required)
Helbling v. Helbling, 541 N.W.2d 443 (ND 1995) (prima facie proof of due execution is a minimal threshold)
O’Neill v. O’Neill, 619 N.W.2d 855 (ND 2000) (procedural standard for establishing prima facie case; burden shifting)
Quarne v. Quarne, 601 N.W.2d 256 (ND 1999) (clarifies standards for presumptions and rebuttals in probate)
State v. Glaesman, 545 N.W.2d 178 (ND 1996) (credibility and weight of testimony in fact‑finding)
Estate of Mecello, 633 N.W.2d 892 (Neb. 2001) (distinguishes application of animo revocandi based on access to will)
Howser v. Howser, 639 N.W.2d 485 (ND 2002) (clearly erroneous standard for presumption rulings)
Tank v. Tank, 673 N.W.2d 622 (ND 2004) (prima facie proof as a minimum threshold)