Estate of Beach , 2022 ND 13 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JANUARY 6, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 13In the Matter of the Estate of Skip Beach, a/k/a Skip Tracy Beach, Deceased
Monte Beach and Dell T. Beach,
Co-Personal Representatives, Petitioners and Appellees
v.
Tracy Burris, Trudy Dunn, Tina Lantz,
Terrel Beach, Murril Beach, Respondents
and
Clark Beach, Respondent and Appellant
No. 20210077
Appeal from the District Court of Golden Valley County, Southwest Judicial
District, the Honorable Rhonda R. Ehlis, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Ronald S. Efta, Wibaux, MT, for petitioners and appellees.
Aaron W. Roseland, Hettinger, ND, for respondent and appellant.
Estate of Beach
No. 20210077
VandeWalle, Justice.
[¶1] Clark Beach appealed from a district court order denying his petition for
formal probate of a holographic will. Clark Beach argues the district court
erred in finding the material portions of the holographic will were not in the
testator’s handwriting. We affirm the order denying the petition for formal
probate.
I
[¶2] Clark Beach is the brother of Skip Beach (“decedent”) who died on July
8, 2020 at 59 years old. The decedent was domiciled in Golden Valley County,
North Dakota. He was survived by seven siblings and one daughter.
[¶3] In July 2020, the estate of the decedent was submitted to informal
probate and co-personal representatives were appointed. In September 2020,
Clark Beach filed a petition for formal probate of a holographic will. The
purported holographic will reads:
My Last Will and Testament
Skip Beach
I leave to Clark Beach
Everything I own
P.S. Bury me in Carlyle
4-8-04
[¶4] In November 2020, a hearing on the petition was held. At the hearing,
Clark Beach presented testimony from seven witnesses. Many of them testified
that the signature and all portions of the document were in the decedent’s
handwriting. The purported holographic will was marked as exhibit 1. In
admitting the exhibit:
Mr. Roseland: At this time, Your Honor, we seek to admit what’s
been previously marked as Exhibit 1 for the purposes of not
proving it as a will, but just as a piece of evidence on its own.
...
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The Court: Any objection?
Mr. Efta: No.
The Court: All right. Exhibit 1 is received.
[¶5] The district court requested the parties submit written closing
arguments on the issue. The court entered its order denying the petition for
formal probate of the holographic will. The court found the signature “Skip
Beach” on the proposed holographic will was the decedent’s signature based on
the evidence. The court held the clause “Everything I own” was a material
portion and was not in the decedent’s handwriting. The court reasoned that
the clause appeared to have been written in different ink, was lighter in
appearance, and was slanted different than the rest of the document.
Additionally, the court found the clause was smaller in text and was written
in only printed letters while other portions of the document use a mix of cursive
and printed letters. The court stated the testimony given by Clark Beach, his
siblings, and others did not change the court’s finding and stated “[n]one of
these individuals are handwriting experts, and none of them ever saw this
purported will before Skip’s death.” The court was not convinced that the
material clause “Everything I own” was in the decedent’s handwriting and held
that Clark Beach failed to meet his burden of proof that a material portion of
the document was in the testator’s handwriting as required by law.
II
[¶6] Clark Beach argues the district court erred in denying his petition for
formal probate of the holographic will. He contends the district court erred in
finding the material portions of the holographic will were not in the testator’s
handwriting.
[¶7] The standard of review of findings of fact in probate proceedings is clear:
We review factual findings in a probate proceeding under the
clearly erroneous standard of review in N.D.R.Civ.P. 52(a). A
finding of fact is clearly erroneous if it is induced by an erroneous
view of the law, if there is no evidence to support it, or if, after
reviewing all of the evidence, we are left with a definite and firm
conviction a mistake has been made. Under N.D.R.Civ.P. 52(a)(1),
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in an action tried on the facts without a jury, the court must find
the facts specially and state its conclusions of law separately. A
district court must make findings of fact and conclusions of law
that are sufficient to enable an appellate court to understand the
factual determinations made by the district court and the basis for
its conclusions of law.
Estate of Johnson, 2015 ND 110, ¶ 20, 863 N.W.2d 215 (quoting Estate of
Wicklund, 2012 ND 29, ¶ 22, 812 N.W.2d 359) (quotation marks omitted).
“Under N.D.R.Civ.P. 52(a), we do not reweigh conflicting evidence, and we give
deference to the district court’s opportunity to judge the credibility of the
witnesses.” Estate of Blikre, 2019 ND 257, ¶ 22, 934 N.W.2d 867 (citing Estate
of Clemetson, 2012 ND 28, ¶ 11, 812 N.W.2d 388).
[¶8] “Proponents of a will have the burden of establishing prima facie proof
of due execution in all cases[.]” N.D.C.C. § 30.1-15-07. “To be ‘duly executed,’ a
will must comply with the statutory requirements for execution.” Estate of
Wagner, 551 N.W.2d 292, 295 (N.D. 1996). The requirements for execution are
found in N.D.C.C. § 30.1-08-02. A holographic will is valid if “the signature and
material portions of the document are in the testator’s handwriting.” N.D.C.C.
§ 30.1-08-02(2). Material portions of a holographic will express donative and
testamentary intent. Estate of Krueger, 529 N.W.2d 151, 154 (N.D. 1995).
“Parties have the ultimate burden of persuasion as to matters with respect to
which they have the initial burden of proof.” N.D.C.C. § 30.1-15-07.
[¶9] Clark Beach contends the district court erred in finding the material
portions of the holographic will were not in the decedent’s handwriting. He
argues the court cannot arbitrarily create a new steeper evidentiary standard
by requiring a handwriting expert because the handwriting in this case was
properly authenticated under N.D.R.Ev. 901.
[¶10] To authenticate evidence under N.D.R.Ev. 901(a), the proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is. Rule 901(a), N.D.R.Ev., treats authentication as a
matter of conditional relevance to be decided under N.D.R.Ev. 104(b). R & D
Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D. 1986). If the
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court decides sufficient proof has been introduced to allow a finding the
document is authentic, Rule 901(a) is satisfied and the question of weight is for
the trier of fact. Id. Here, the district court judge was also the trier of fact.
[¶11] The purported holographic will was admitted “for the purposes of not
proving it as a will, but just as a piece of evidence on its own.” Clark Beach
misinterprets Rule 901 as if it requires a finding from the evidence. He argues
that the witnesses testified that all the writing on the purported holographic
will was the genuine, true, and authentic handwriting of the decedent and that
once that fact was established, the requirements of N.D.C.C. § 30.1-08-02 were
met. He argues no contradictory testimony was offered by the personal
representatives or their witnesses. However, “[t]estimony may be
uncontradicted, but not credible.” Clemetson, 2012 ND 28, ¶ 19. “A trier of fact
need not accept undisputed testimony.” Id. Clark Beach not only had the initial
burden of proof to show due execution of the purported holographic will, but he
also had the burden of persuasion under N.D.C.C. § 30.1-15-07.
[¶12] The district court in this case properly weighed the competing testimony
and evidence and, on the record, has support for its findings. The court found
that the clause “Everything I own” was a material portion and reasoned that
without this clause, the document does not express a donative and
testamentary intent. Additionally, the court held the clause was not in the
decedent’s handwriting. The court reasoned that the clause appeared to have
been written in different ink, was lighter in appearance, and was slanted
different than the rest of the document. The court found the clause was smaller
in text and was written in only printed letters while other portions of the
document use a mix of cursive and printed letters. The court stated the
testimony given by Clark Beach, his siblings, and others did not change the
court’s finding and stated “[n]one of these individuals are handwriting experts,
and none of them ever saw this purported will before Skip’s death.” The
weakness of the witness testimony goes to credibility, not admissibility as
Clark Beach argues. The court was not convinced based on the evidence and
testimony that the material clause “Everything I own” was in the decedent’s
handwriting. The court held that Clark Beach failed to meet his burden of proof
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that the material portions of the purported holographic will were in the
testator’s handwriting as required by law.
[¶13] We conclude the district court did not clearly err in finding that the
material portions of the purported holographic will were not in the testator’s
handwriting. The court’s finding was not induced by an erroneous view of the
law, nor are we left with a definite and firm conviction a mistake has been
made.
III
[¶14] The order denying the petition for formal probate is affirmed.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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