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In the Matter of the Estate of Maurice M. Wicklund, Deceased v. Brian Wicklund and

February 17, 2012

IN THE MATTER OF THE ESTATE OF MAURICE M. WICKLUND, DECEASED
BETTY J. WICKLUND,
PETITIONER AND APPELLEE
v.
BRIAN WICKLUND AND DEBORAH WILLIAMS,
RESPONDENTS AND APPELLANTS



Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

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

N.D. Supreme Court

Estate of Wicklund,

2012 ND 29

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

[Download as WordPerfect]

REVERSED AND REMANDED.

Opinion of the Court by Maring, Justice.

[¶1] Brian Wicklund and Deborah Williams, the surviving children of Maurice Wicklund, appeal from an order granting a petition by Maurice Wicklund's surviving spouse, Betty Wicklund, for an elective share, a homestead allowance, an exempt property allowance, a family allowance, personal representative fees, and administration costs from Maurice Wicklund's estate. The surviving children claim their father intended to transfer North Dakota mineral interests to them under a will and Trust agreement, and they argue the district court erred in failing to address issues relating to their father's intent and erred in granting the surviving spouse an elective share, a homestead allowance, an exempt property allowance, a family allowance, personal representative fees, and administration costs from Maurice Wicklund's estate. We conclude the district court's decision effectuates Maurice Wicklund's intent from the plain language of his will and the Trust, but the court's findings are inadequate to explain the bases for granting Betty Wicklund an elective share, administration costs, and personal representative fees. We reverse and remand for further proceedings.

I

[¶2] When Maurice Wicklund died at the age of 94 in September 2009, he owned mineral interests in Sargent, Mountrail, Burke, and Divide Counties in North Dakota, and he and Betty Wicklund were domiciled in Michigan, near Betty Wicklund's daughter from a prior marriage, Sandra Miller. Maurice and Betty Wicklund had been married for 16 years, and they had no children together. Maurice Wicklund's survivors included Miller and his two adult children from a prior marriage, Brian Wicklund and Deborah Williams.

[¶3] On August 22, 2006, Maurice and Betty Wicklund executed a joint estate plan, including Maurice Wicklund's will and the Maurice M. Wicklund and Betty J. Wicklund Living Trust. There were no amendments to Maurice Wicklund's will or to the Trust before his death. Maurice Wicklund's will appointed Betty Wicklund as his personal representative, directed his personal representative to pay his debts and the expenses of his last illness, devised his personal property to Betty Wicklund, and devised the residue of his estate to Betty Wicklund, as trustee of the Living Trust, to be disposed of as provided in the Trust agreement. His will directed the trustee to comply with the provisions of the Trust agreement for payment of expenses of administration, allowances, and claims allowed. His will also stated that he had not forgotten Brian Wicklund and Deborah Williams and had intentionally omitted to provide for them.

[¶4] The Living Trust named Maurice and Betty Wicklund as the trust settlors and appointed the settlors, or either of them, as trustee. The Trust allowed the settlors to make contributions to the Trust, but the record does not reflect any conveyances to the Trust during Maurice Wicklund's lifetime. The Trust generally granted the trustee authority over any property held by the Trust and authorized the trustee to disburse income and principal as directed by the settlors during their lifetime, or by the surviving settlor during his or her lifetime. The Trust authorized the trustee "to pay all expenses of administration, allowances, and claims allowed in the estate of either" settlor, and if there was no estate subject to probate administration, "to pay all expenses, allowances, and claims pertaining to settlor's estate related to the non-probate estate" of either settlor. The Trust explicitly authorized the settlors to amend or revoke the Trust during their lifetime and also authorized the surviving settlor to amend or revoke the Trust after the death of the other settlor.

[¶5] The Trust also included language for the disposition of property and provided:

ELEVENTH: A. Upon the death of settlor husband, Maurice M. Wicklund, if his son, Brian M. Wicklund, is then surviving, trustee shall distribute to him settlor husband's 1.26 carat diamond gold ring and Rolex wristwatch, and if settlor husband's son, Brian M. Wicklund, is not then surviving, this gift shall lapse and be distributed according to the provisions of paragraph TWELFTH below. B. Any and all interest of settlor, or either of the persons herein designated as settlor, or this trust, in and to oil, gas and other minerals in and under and that may be produced from the following described lands, located in the State of North Dakota, to-wit: [land description for mineral interests in Mountrail, Burke, and Divide Counties] to settlor husband's son, Brian M. Wicklund, and settlor husband's daughter Deborah Ann Williams, as tenants in common. TWELFTH:

Upon the death of the survivor of the persons herein designated as settlor, trustee shall hold, administer, and dispose of the entire remaining corpus and undistributed income of this trust, after the payment of taxes and expenses, to settlor wife's daughter, Sandra S. Miller, if she is then surviving, and if she is not then surviving, to the following persons in the following proportions: A. Settlor wife's rings and watches to her daughter-in-law, Benjawan Miller, if she is then surviving, and if she is not then surviving, this gift shall lapse and be paid to the person or persons who take under sub-paragraph B. below, proportionately; B. All the rest, residue, and remainder to the following persons in the following proportions: 1. Fifty percent (50%) equally to the members of the class composed of settlor husband's children, Brian M. Wicklund and Debra [sic] Ann Williams, the issue of any deceased child to take his, her, or their parents share, by right of representation; 2. Fifty percent (50%) equally to the members of the class composed of settlor wife's children, Randall Richard Miller and Bill Lew Miller, the issue of any deceased child to take his, her, or their parents share, by right of representation. The parties agree that Maurice Wicklund did not convey his North Dakota mineral interests to the Trust during his lifetime.

[¶6] In April 2010, Maurice Wicklund's will was admitted for informal probate in North Dakota, and Betty Wicklund was appointed his personal representative. Betty Wicklund thereafter petitioned the North Dakota probate court for an elective share of $67,000 under Michigan law, a homestead allowance of $20,000 under Michigan law, an exempt property allowance of $13,000 under Michigan law, a family allowance of $24,000 under Michigan law, her fees as a personal representative in a reasonable amount, and reimbursement in an amount exceeding $30,000 for costs of administration, attorney fees, and last illness, funeral, medical, and hospital expenses. According to Betty Wicklund, before Maurice Wicklund's death, they hired a lawyer to apply for Medicaid for him and to set up a "Medicaid exemption trust," which was funded with "what little money [they] had left . . . approximately $14,000." Betty Wicklund claimed that Maurice Wicklund's North Dakota mineral interests disqualified him for Medicaid benefits and he died before he became eligible for those benefits. According to Betty Wicklund, Maurice Wicklund had "no estate in Michigan" when he died and the couple had "no testamentary assets and only a little bit of money left in the Medicaid trust[, t]he house [they] lived in was bought and paid for by . . . Miller[, and t]he only thing he had were some small items of personal property." Miller also indicated that Maurice Wicklund did not have any property in Michigan when he died, and the parties stipulated that no probate proceedings were undertaken in Michigan. Betty Wicklund claimed the value of Maurice Wicklund's mineral interests when he died was $37,260, and for her claims, she sought an in-kind distribution of those interests to the exclusion of Brian Wicklund and Deborah Williams.

[¶7] Brian Wicklund and Deborah Williams opposed Betty Wicklund's petition, claiming their father's testamentary intent was memorialized in his will and in the Trust. They asserted they were entitled to his North Dakota mineral interests in Divide, Burke, and Mountrail Counties, but because the Trust did not include language for disposition of the Sargent County mineral interests, they have not claimed an interest in those minerals.

[¶8] At a hearing on Betty Wicklund's petition, the district court stated the will and the Trust spoke for themselves and any proffered testimony about Maurice Wicklund's intent was not relevant. After the hearing, the district court issued a written order granting Betty Wicklund's petition for an elective share of $67,000 plus one-fourth of the estate under Mich. Comp. Laws § 700.2202, a homestead allowance of $20,000 under Mich. Comp. Laws § 700.2402, an exempt property allowance of $13,000 under Mich. Comp. Laws § 700.2404, and a family allowance of $24,000 under Mich. Comp. Laws § 700.2403. The court also awarded Betty Wicklund personal representative fees in a "reasonable amount" under N.D.C.C. § 30.1-18-19 and reimbursement for costs of administration, attorneys fees, and last illness, funeral, medical and hospital expenses in an amount exceeding $30,000 under N.D.C.C. § 30.1-19-05. The court awarded Betty Wicklund title to Maurice Wicklund's North Dakota mineral ...


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