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In re Estate of Wicklund

Supreme Court of North Dakota

April 3, 2014

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

Page 566

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

Kathleen K. Imes (argued), Williston, N.D. and Christopher T. Lindsay (on brief), Northville, MI, for petitioner and appellee.

Elizabeth L. Pendlay (argued), Crosby, N.D., and Toni M. Sandin (on brief), Fargo N.D., for respondents and appellants.

Dale V. Sandstrom, Carol Ronning Kapsner, Lisa Fair McEvers. Gerald W. VandeWalle, C.J., concur in the result. Crothers, Justice, concurring in part and dissenting in part.

OPINION

Page 567

Sandstrom, Justice.

[¶1] Brian Wicklund and Deborah Williams, the surviving children of Maurice Wicklund, appeal from an order granting Betty Wicklund's petition for an elective share, personal representative fees, attorney fees, and funeral and last illness expenses from Maurice Wicklund's estate after remand in Estate of Wicklund, 2012 ND 29, 812 N.W.2d 359. The surviving children argue the district court erred in awarding Betty Wicklund an elective share of $52,911.32, personal representative fees of $10,000, attorney fees and administration costs of $53,411.03, and funeral and last illness expenses of $15,414. We conclude the court did not abuse its discretion in granting Betty Wicklund's petition, and we affirm.

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 his surviving spouse, 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 had no children together. Brian Wicklund and Deborah Williams are his adult children from a prior marriage.

[¶3] In Wicklund, 2012 ND 29, ¶ ¶ 3-4, 812 N.W.2d 359, we described the creation of Maurice and Betty Wicklund's joint estate plan:

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.
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

Page 568

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.

[¶4] The parties agree Maurice Wicklund did not convey his North Dakota mineral interests to the Trust during his lifetime, and after he died in September 2009, his will was admitted for informal probate in North Dakota in April 2010. Betty Wicklund was appointed as personal representative of the estate, and she thereafter petitioned the North Dakota probate court for an elective share, statutory allowances, personal representative fees, and administration costs under Michigan law. The district court initially awarded Betty Wicklund an elective share of $67,000 plus one-fourth of Maurice Wicklund's estate, a homestead allowance of $20,000, an exempt property allowance of $13,000, a family allowance of $24,000, a reasonable amount of personal representative fees, and reimbursement for costs of administration, attorney fees, last illness, funeral, medical and hospital expenses in an amount exceeding $30,000. The court awarded Betty Wicklund title to Maurice Wicklund's North Dakota mineral interests as an in-kind payment for her allowances and claims, which the court found exceeded the estate's fair market value of $138,500 at the time of his death.

[¶5] In Wicklund, 2012 ND 29, ¶ ¶ 9-20, 812 N.W.2d 359, we construed documents in Maurice and Betty Wicklund's joint estate plan, including Maurice Wicklund's pour-over will and the couple's Trust agreement, to provide for the surviving spouse during his or her lifetime and to authorize the trustee to pay all expenses of administration, allowances, and claims allowed in the probate of the estate of either settlor. We concluded:

Maurice Wicklund's will provided a pour-over mechanism upon his death for the mineral interests to transfer to the Trust through the residue of his estate to be administered and disposed of in the manner provided in the Trust. The plain language for administration of the Trust provides for a revocable trust during the lifetime of both Maurice and Betty Wicklund, or the surviving spouse to provide them with income and principal from the Trust during their lifetimes. That plain language further provides for payment of all administration expenses, allowances, and claims relating to the probate or non-probate estate of either settlor.
The plain language of the will and the Trust, construed together, evidences an intent to pay administration costs and expenses, allowances, and claims allowed in the estate of either settlor, or if there was no estate subject to probate administration, to pay all expenses, allowances, and claims related to the non-probate estate before triggering any specific conveyance of Maurice Wicklund's mineral interests. The language creating a revocable trust during the lifetime of both settlors, or during the lifetime of the surviving settlor further evidences the settlors' intent to provide for a surviving settlor during his or her lifetime. The plain language distributed upon his death, the plain language of the will and the Trust permits the settlors, or the surviving settlor, to use the property in the Trust for their benefit and at their

Page 569

discretion during their lifetime. The Trust language pertaining to the mineral interests does not explicitly require distribution upon Maurice Wicklund's death; rather, the language for the minerals refers to the disposition of " [a]ny and all interest of settlor, or either of the persons herein designated as settlor, or this trust." We construe the language of the Trust, as a whole, to evidence an intent to subject the mineral interests to the Trust provisions during the lifetime of the surviving settlor, including the language authorizing the trustee to distribute the original investment together with additions and accumulations in accordance with the Trust and as directed by the persons designated as settlor or the surviving settlor and the language directing the trustee to pay all expenses of administration, allowances, and claims allowed in the probate estate or non-probate estate of either of the persons designated as settlor.

Id. at ¶ ¶ 15-16. We affirmed the district court's award to Betty Wicklund of $20,000 for a homestead allowance, $24,000 for a family allowance, and $13,000 for an exempt property allowance. Id. at ¶ ¶ 1, 27-29. We concluded, however, the court's findings were not adequate to understand the rationale for its decision on her claim against her husband's estate for an elective share, administration costs, and personal representative fees, and we remanded for further findings on those issues. Id. at ¶ ¶ 1, 24-25, 32-33.

[¶6] After an evidentiary hearing on remand, the district court determined Betty Wicklund was entitled to: (1) $52,911.32 for her elective share; (2) $53,411.03 for attorney fees and administration costs; (3) $10,000 for personal representative fees; and (4) $15,414 for funeral and last illness expenses. Because the total monetary award to Betty Wicklund for statutory allowances and expenses exceeded the value of Maurice Wicklund's estate at his death, as found by the district court to be $138,500, the court again distributed the mineral interests to Betty Wicklund in-kind.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § § 27-05-06 and 30.1-02-02. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, ...


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