Curtis L. Erickson, Petitioner and Appellee
Dean Olsen, Susan Olsen, Bobby Olsen, Clee Raye Olsen, Marion Bergquist, and the Estate of Clarence Erickson, Respondents Dean Olsen, Susan Olsen, Bobby Olsen, Clee Raye Olsen, and Marion Bergquist, Appellants
[Copyrighted Material Omitted]
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.
Daniel J. Nagle, Mandan, ND, for petitioner and appellee.
David J. Smith (argued), Tyler J. Malm (appeared), and Sheldon A. Smith (on brief), Bismarck, ND, for respondents and appellants.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] Dean Olsen, Susan (" Sue" ) Olsen, Bobby Olsen, Clee Raye Olsen, and Marion Bergquist (" the appellants" ) appeal a district court judgment invalidating transfers of money and real property from Clarence Erickson to the appellants and invalidating Clarence Erickson's will on the bases of lack of capacity and undue influence. The appellants also appeal a district court order denying the appellants' N.D.R.Civ.P. 52(b) motion to amend the district court's findings and judgment. Because the district court findings were not clearly erroneous, we affirm the district court judgment. The appellants' appeal of the district court's Rule 52(b) order is dismissed.
[¶2] Clarence Erickson had four natural children from a first marriage: Curtis Erickson, Carol Wolf, Craig Erickson, and Colin Erickson. Clarence Erickson and his first wife divorced, and Clarence Erickson married Clara Olsen. Clara Olsen had six children from a previous marriage: Ardis Menager, Marion Bergquist, Larry Olsen, Martin Olsen, Dean Olsen, and Bobby Olsen. Clarence Erickson and Clara Olsen were married for 28 years until Clara Olsen's death, and all of the children and stepchildren were living at the time of both Clara Olsen and Clarence Erickson's deaths.
[¶3] Clara Olsen and Clarence Erickson lived on a farm outside Bowman, North Dakota. Bobby Olsen lived approximately two and a half miles away, and Dean Olsen lived approximately three miles away. Bobby Olsen saw Clarence Erickson at least every other day, and Dean Olsen saw Clarence Erickson daily. Dean Olsen sharecropped on a portion of Clarence Erickson's land. Three of Clarence Erickson's children lived out of state; Curtis Erickson lived in Minnesota and later moved to Bismarck, North Dakota.
[¶4] Clarence Erickson retired from farming in 1985. He discontinued his livestock operation in 2003. Since 2006, Curtis Erickson had noticed Clarence Erickson had gaps in memory and difficulty doing simple mathematical calculations. Sometime prior to Clara Olsen's death in 2009, Clarence Erickson stopped driving. Clarence Erickson's eyesight began deteriorating in 2009.
[¶5] In 2008, Clarence Erickson and Clara Olsen gave Dean and Sue Olsen a cashier's check for over $42,000 to cover the cost of Dean Olsen's hip replacement. While Clara Olsen was still living, Dean Olsen's wife, Sue Olsen, began assisting Clarence Erickson by filling out checks to pay bills. After Clara Olsen's death in 2009, Clarence Erickson continued to live at the farm. Sue Olsen saw Clarence Erickson daily and wrote all of his checks. During this time, Sue Olsen wrote two checks to herself, totaling $9,000. According to Sue Olsen, Clarence Erickson gave her the money as a token of appreciation for her help.
[¶6] Curtis Erickson noticed that, on the day of Clara Olsen's funeral in 2009, Clarence Erickson had no emotion or response. In November 2009, Curtis Erickson became concerned that Clarence Erickson should not be living alone, and Clarence Erickson moved in with Dean and Sue Olsen. However, Dean Olsen did not think Clarence Erickson needed constant supervision at that time.
[¶7] In November 2009, January 2010, and February 2010, while Clarence Erickson was living with Dean and Sue Olsen, Sue Olsen wrote a third check to herself
and two checks to her husband from Clarence Erickson's checking account, totaling $12,500. According to Sue Olsen, these checks were also written at Clarence Erickson's direction and in appreciation for her and Dean Olsen's help. According to Sue and Dean Olsen, Clarence Erickson told them not to tell the other siblings about the money transfers.
[¶8] Around February 2010, Bobby Olsen took Clarence Erickson to a law office in Bowman to have a will drafted. In March 2010, Clarence Erickson signed two warranty deeds transferring all of his real property in two parcels--one to Bobby Olsen and one to Dean Olsen--for $200 per acre, despite the estimated value of the land being at least $400 per acre. According to Bobby Olsen, Clarence Erickson sold the land for half of what it was worth because Clarence Erickson felt half of the land should be considered to have belonged to the stepchildren's mother, Clara Olsen.
[¶9] Two days after the land sale, Clarence Erickson was moved to Bismarck to live with Marion Bergquist. While Marion Bergquist was at work, her son and his fiancé would stop by her apartment to check on Clarence Erickson. During the time Clarence Erickson lived with Marion Bergquist, Clarence Erickson's brother died. At the funeral, Clarence Erickson could not recognize one of his sisters. Curtis Erickson and Clarence Erickson's other children became aware of the land sale around June 2010. When asked, Clarence Erickson could not remember any specifics of the transactions.
[¶10] In September 2010, Marion Bergquist took Clarence Erickson to Bowman to sign his will. She and Bobby Olsen also took Clarence Erickson to Wells Fargo Bank in Bowman, where his accounts were closed. New accounts were opened in Clarence Erickson's name at Dakota Community Bank, where Bobby Olsen had accounts.
[¶11] In October 2010, due to concerns for Clarence Erickson's mental health, Curtis Erickson sought and was granted temporary guardianship of Clarence Erickson. After being granted temporary guardianship, Curtis Erickson learned of the change to Clarence Erickson's bank accounts and the checks written to Dean and Sue Olsen in 2009 and 2010. When asked, Clarence Erickson was unable to provide any explanation for the transactions and had no clear memory of the events or details surrounding the transactions.
[¶12] After becoming temporary guardian, Curtis Erickson moved his father into his home, where he noticed that his father would become confused, especially in the evenings, and had difficulty staying asleep. Clarence Erickson also frequently got up in the middle of the night and began getting ready for the day.
[¶13] In November 2010, in preparation for a permanent guardianship hearing, Clarence Erickson was evaluated by Dr. David Brooks. Dr. Brooks found Clarence Erickson suffered from neurological impairment, was not competent to make decisions, and required 24-hour supervision. His pattern of performance was consistent with probable dementia of the Alzheimer's type. Dr. Brooks opined it was very likely Clarence Erickson would have been impaired a month or two before the evaluation, maybe even a few months before, but Dr. Brooks could not come to a conclusion about whether impairment existed earlier in time. Although Dr. Brooks had no contact with ...