Vanlishout v. N.D. Department of Transportation, 2011 ND 138

Decedent Maxine Vestre executed a will on Feb. 2, 2007; Rose Morgan sought probate as personal representative.
Vestre initially waived a jury trial, but later demanded one, and the district court conducted a jury trial.
Morgan challenged probate on undue influence and lack of testamentary capacity.
A jury found Maxine lacked capacity and the will was the product of undue influence; probate was denied.
Morgan challenged evidentiary rulings, the jury trial after waiver, and motions for summary judgment/JML; court affirmed the verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a jury trial was properly held after a waiver	Morgan argues waiver prevented a jury trial	Vestre consented to a jury trial; waiver reinstated by court	No reversible error; court had discretion to reinstate and use advisory jury if needed
Whether remote evidence was improperly admitted	Evidence remote in time supports undue influence/competency	Evidence relevant to condition at signing; remoteness weighs on weight not admissibility	Admissible; district court did not abuse its discretion
Whether summary judgment/JML were wrongly denied	Undue influence/capacity not supported by the record	Evidence viewed in light favorable to verdict supports triable issues	Remedies rely on the eventual undue influence finding; JML denied not reversible
Whether the forgetfulness instruction was appropriate	Proposed instruction clarifies memory/forgetfulness impact	Instruction covered by existing memory instructions	Not reached; undue influence finding controls the outcome

First Western Bank v. Wickman, 500 N.W.2d 896 (N.D. 1993) (withdrawal of jury demand requires client consent in Wickman context)
Steckler v. Steckler, 492 N.W.2d 76 (N.D. 1992) (attorney may withdraw jury demand with client consent)
Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571 (N.D. 1999) (advisory jury permissible; factual questions may be submitted)
Sargent County Bank v. Wentworth, 500 N.W.2d 862 (N.D. 1993) (advisory/factual questions; standard of review for advisory jury)
Van Sickle v. Hallmark & Assocs., Inc., 2008 ND 12, 744 N.W.2d 532 (N.D. 2008) (advisory opinions; no advisory issue dismissed)
In re Estate of Stave, 2007 ND 53, 729 N.W.2d 706 (N.D. 2007) (undue influence framework for wills; four-part test)
In re Estate of Howser, 2002 ND 33, 639 N.W.2d 485 (N.D. 2002) (testamentary undue influence standard; four elements)
Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549 (N.D. 2009) (standard for reviewing motions for judgment as a matter of law)
Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, 643 N.W.2d 29 (N.D. 2002) (review of motions for judgment as a matter of law)
Okken v. Okken Estate, 348 N.W.2d 447 (N.D. 1984) (remoteness of evidence and relevance in probate)
Stormon v. Weiss, 65 N.W.2d 475 (N.D. 1954) (critical inquiry is time of signing will; extrinsic evidence limited)