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In the Matter of v. Kenneth Evanson

February 17, 2012


Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

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

N.D. Supreme Court

Estate of Clemetson, 2012 ND 28

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

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Opinion of the Court by Kapsner, Justice.

[¶1] Philip Sprague appeals from an order denying his petition for formal probate of a will allegedly executed by Harriet O. Clemetson. Because we conclude the district court correctly applied the law on the presumption that a missing will is revoked, and because the court's findings of fact are not clearly erroneous, we affirm the order.


[¶2] Harriet and Earl Clemetson were married for approximately 45 years and lived in Grand Forks County. The couple had no children together, but each had a child from a previous relationship. Harriet Clemetson's son, Ritchie Evanson, died in 2003 and left four biological and two adopted children: Lauri Bartlett, Shawn Evanson, Stephen Evanson, Kenneth Evanson, Dawn Chaffee and Ross Evanson. Earl Clemetson's daughter, Carolyn Sprague, is married to Kevin Sprague and they have three children: Philip Sprague, Kevin Joseph Sprague II and Jennifer Sprague.

[¶3] In 1995, Harriet and Earl Clemetson met with a Grand Forks attorney, now deceased, for the purpose of preparing wills. After Earl Clemetson died on January 18, 2009, his estate was probated in accordance with his will dated October 9, 1995. Earl Clemetson devised a quarter section of land to Carolyn Sprague and devised his personal property, vehicles, farm machinery, equipment, crops, and bank and savings accounts to Harriet Clemetson. The will directed that if Harriet Clemetson did not survive Earl Clemetson, the property would be awarded to Carolyn Sprague. The remainder of the estate was devised to Carolyn Sprague, subject to a life estate in Harriet Clemetson. The remainder included another quarter section of land, less the five-acre farmstead. The farmstead was devised to Harriet Clemetson to be sold at a price she determined, with the sale proceeds kept by her. Under the will, if Carolyn Sprague did not survive him, Earl Clemetson devised the property to her three children. Earl Clemetson did not devise any property to Harriet Clemetson's six grandchildren.

[¶4] After Earl Clemetson died, Harriet Clemetson revoked a power of attorney Harriet Clemetson had given to Carolyn Sprague and also removed her as the contingent beneficiary on an investment account she received from Earl Clemetson after his death. On August 1, 2009, Carolyn Sprague purchased Harriet Clemetson's interest in her life estate through a family distribution agreement under which the farmstead would be sold and Harriet Clemetson would move elsewhere. Harriet Clemetson became very distraught at the subsequent auction sale where most of her belongings were sold.

[¶5] On October 2, 2009, Harriet Clemetson died from injuries suffered in a car accident. Her grandson, Kenneth Evanson, applied for appointment as personal representative and stated in the application that "after the exercise of reasonable diligence, [he] is unaware of any unrevoked testamentary instrument relating to the property having a situs in this state." Evanson listed Harriet Clemetson's six grandchildren as her surviving heirs entitled to her estate under the laws of intestate succession. After Kenneth Evanson was appointed personal representative, Harriet Clemetson's step-grandson and Carolyn Sprague's son, Philip Sprague, filed a petition for formal probate of a will and asserted Harriet Clemetson had executed an unrevoked will that should be probated. Philip Sprague presented an undated and unsigned document purported to be a copy of Harriet Clemetson's will in which all nine of her grandchildren and step-grandchildren were named as devisees. Kenneth Evanson objected to probate of the alleged will and asserted that the will was not duly executed and that because he could not find the original will, it was revoked under the presumption that a missing will has been revoked.

[ΒΆ6] Following a trial, the district court determined Harriet Clemetson's will was duly executed but could not be found after her death. The court further found Sprague had failed to rebut the presumption that a missing will is revoked. The court concluded Harriet Clemetson's surviving heirs under the laws of ...

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