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In the Matter of the Estate of Lee S. Paulson, Deceased v. Robyn Risovi

February 21, 2012

IN THE MATTER OF THE ESTATE OF LEE S. PAULSON, DECEASED CARMEN PAULSON, MICHAEL PAULSON, KIM PAULSON, CHARLENE (PAULSON) JOHNSON, AND LYNN PAULSON,
APPELLANTS
v.
ROBYN RISOVI, APPELLEE



Appeal from the District Court of Benson County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

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

N.D. Supreme CourtEstate of Paulson,

2012 ND 40

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

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AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

Estate of PaulsonNo. 20110154

[¶1] Lee Paulson's mother and siblings ("the Paulson family") appealed from district court orders interpreting the will of Lee Paulson in favor of his fiancee, Robyn Risovi, denying a motion for reconsideration, and ordering distribution of Lee Paulson's estate. We affirm.

I.

[¶2] Lee Paulson and Risovi were engaged to be married, with a wedding set for July 18, 2009. On June 26, 2009, Lee Paulson and Risovi executed an antenuptial agreement. The antenuptial agreement contained several terms: an agreement by Lee Paulson to name Risovi as the beneficiary of his life insurance policy, an agreement by Lee Paulson that his will would transfer specific real property to Risovi, and an agreement by Lee Paulson to establish a testamentary trust for the benefit of Risovi's daughter. On the same date, Lee Paulson executed a will. The will established the trust for Risovi's daughter, devised real property to "my wife, Robyn," bequeathed all of Lee Paulson's tangible personal property to "my spouse, Robyn," if she survived him, and devised his residuary estate to "my spouse, if my spouse survives me[.]" Article Six of the will outlined the definitions governing the will, and provided, "My spouse's name is Robyn Risovi and all references in this Will to 'my spouse' are to her only." A footnote followed this statement: "This Will has been prepared in anticipation of the upcoming marriage of . . . Lee Paulson and Robyn Risovi set for July 18, 2009." Lee Paulson died on July 15, 2009, three days before the scheduled wedding.

[¶3] Risovi filed a petition for construction of Lee Paulson's will, and the Paulson family also filed a petition for construction of the will. The district court held a hearing on the petitions and found Lee Paulson's will was unambiguous, Risovi was an unconditional devisee of the will, and she was entitled to take under the will. The district court found the definition and footnote in Article Six of the will did not manifest an intent to have the will conditioned upon the marriage, but described the beneficiaries and the circumstances surrounding the drafting of the will. The district court declined to read the antenuptial agreement together with the will to determine Lee Paulson's testamentary intent, as encouraged by the Paulson family, because the antenuptial agreement was not incorporated into the will by reference. The Paulson family appealed, and the appeal was remanded to determine if the estate was supervised. The district court entered an order for supervision, and this Court dismissed the Paulson family's appeal without prejudice. The Paulson family moved for reconsideration, which was denied. The district court entered orders distributing the estate according to Lee Paulson's will and the court's previous order and staying distribution pending the current appeal.

II.

[¶4] "We decide for ourselves the construction of an unambiguous will." Estate of Zimbleman, 539 N.W.2d 67, 70 (N.D. 1995). Our purpose in construing a will is to determine the testator's intent "from a complete consideration of the will given the surrounding circumstances." Id. at 71. The testator's intent as expressed in the will controls the legal effect of the testator's dispositions. N.D.C.C. § 30.1-09-03. If the will's language is clear and unambiguous, the testator's intent is ascertained from the language of the will and not from extrinsic evidence. Estate of Neshem, 1998 ND 57, ¶ 7, 574 N.W.2d 883. Whether a will contains an ambiguity ...


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