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In the Matter of the Estate of Maxine J. Vestre, Deceased Rose Morgan v. James Vestre

July 13, 2011

IN THE MATTER OF THE ESTATE OF MAXINE J. VESTRE, DECEASED ROSE MORGAN,
PETITIONER AND APPELLANT
v.
JAMES VESTRE,
RESPONDENT AND APPELLEE



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme CourtEstate of Vestre,

2011 ND 144

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Rose Morgan appeals from the district court's judgment denying probate of Maxine Vestre's will after a jury found Maxine Vestre lacked testamentary capacity to make a will and the will was the product of undue influence. Morgan argues the district court erred by allowing a jury trial after James Vestre ("Vestre") waived his right to a jury trial, by denying her motions for summary judgment and judgment as a matter of law, by admitting certain evidence and by refusing to use her proposed jury instruction on forgetfulness. We affirm.

I

[¶2] Maxine Vestre died on December 26, 2008. On January 27, 2009, Morgan, Maxine Vestre's friend, applied for appointment as the personal representative for the estate and to informally probate the will executed on February 2, 2007. Morgan is the personal representative named in the February 2, 2007 will. On February 4, 2009, Vestre filed an objection to probate of the will and to appointment of Morgan as the personal representative, alleging that the will was invalid because Maxine Vestre was subject to undue influence and that Maxine Vestre lacked testamentary capacity when she executed the will.

[¶3] On April 28, 2009, the court issued a scheduling order, stating a jury trial was requested. On May 26, 2009, Vestre's attorney wrote a letter to the court, stating Vestre waived his right to a jury trial. On September 1, 2009, Vestre demanded a jury trial. Morgan objected to the jury demand, arguing Vestre waived his right to a jury trial. The district court held a jury trial.

[¶4] On January 8, 2010, Morgan moved for summary judgment, arguing Vestre had not met his burden of raising more than a mere suggestion of undue influence and lack of testamentary capacity. Vestre opposed the motion, arguing he raised questions of material facts. The court denied Morgan's summary judgment motion.

[ΒΆ5] Before trial, Morgan proposed a jury instruction using the term "mere forgetfulness." The district court concluded that those words are covered by the term "memory" in a different instruction and that including them would confuse the jury. On October 5, 2010, a three-day jury trial began. Morgan lodged several objections to evidence presented by Vestre, arguing the evidence was not relevant because it was remote in time to the execution of the will. The court overruled the objections, stating the timing of the evidence was an issue of weight for the jury to decide. At the conclusion of evidence, Morgan moved for judgment as a matter of law, which the court denied. The jury returned a special ...


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