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In re Estate of Bartelson

Supreme Court of North Dakota

June 11, 2015

In the Matter of the Estate of Ralph Bartelson, deceased; Jean Valer and Jane Haught, Petitioners and Appellees
v.
Neil Bartelson, Steven M. Fischer, Personal Representative of the Estate of Diane Fischer and Guardian and Protective Services, Personal Representative, Respondents, Neil Bartelson, Appellant

Page 442

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

William C. Severin, Bismarck, N.D., for petitioners and appellees.

Clark J. Bormann (argued) and Sophie Y. Morgan (appeared), Bismarck, N.D., for respondent and appellant.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.

OPINION

Page 443

Dale V. Sandstrom, Justice.

[¶1] Neil Bartelson appeals from an order denying his petition to remove Guardian and Protective Services (" GAPS" ) as personal representative of Ralph Bartelson's estate and to appoint him as successor personal representative. Because the district court failed to apply the presumption of undue influence and incorrectly presumed there can be no undue influence if the principal is lucid, we reverse and remand.

I

[¶2] This is the third time this case has been before us. The facts of this case have been explained in detail in Estate of Bartelson, 2011 ND 219, 806 N.W.2d 199 (" Bartelson I" ), and Estate of Bartelson, 2013 ND 129, 833 N.W.2d 522 (" Bartelson II" ), and will be repeated as necessary to explain the resolution of the issues in this appeal.

[¶3] Ralph Bartelson had four children: Neil Bartelson, Diane Fischer, Jean Valer, and Jane Haught. Because of Ralph Bartelson's declining health, the children agreed Ralph Bartelson would reside with Valer and she and Haught would receive compensation for the care they provided. While living under the care of Valer, Ralph Bartelson gave her a power of attorney and established a joint checking account, naming both Valer and Haught co-owners with rights of survivorship and allowing them to issue checks from the account. Alleging Valer and Haught had misappropriated funds, Neil Bartelson and Fischer petitioned for the appointment of Neil Bartelson as Ralph Bartelson's guardian and conservator. In July 2008, the parties stipulated that Valer would act as guardian with limitations and GAPS would be appointed conservator and be responsible for investigating the alleged misappropriation of funds. This stipulation provided:

[T]he conservator . . . will be empowered to investigate and pursue any inappropriate expenditures from the ward's funds if the conservator deems it appropriate so to do . . . . [T]ransfers Ralph made to Jean Valer, Jane Haught and Diane Fischer in December of 2007 of $12,000 and in January of 2008 of $60,000 will not be contested but all other transfers are subject to review by the conservator.

Page 444

[¶4] Upon Ralph Bartelson's death in August 2008, the district court granted Valer's and Haught's request that Ralph Bartelson's will be admitted to informal probate, and the court appointed Valer and Haught as co-personal representatives of the estate. In February 2009, Neil Bartelson and Fischer petitioned for formal probate of Ralph Bartelson's will and requested the appointment of a different personal representative. Prior to the hearing on the petition, Neil Bartelson, Fischer, Valer, and Haught stipulated to admitting Ralph Bartelson's will to formal probate and to appointing GAPS as successor personal representative. The district court then ordered formal probate for Ralph Bartelson's will and appointed GAPS as personal representative of his estate.

[¶5] In July 2009, GAPS moved for court approval of compensation to Valer and Haught for the expenses they incurred while serving as personal representatives of Ralph Bartelson's estate. Neil Bartelson and Fischer objected to the expenditure requests and reasserted their allegation that Valer and Haught had misappropriated estate funds prior to GAPS' appointment as personal representative. In March 2010, the parties stipulated to payment of the expenditures requested by GAPS, but conditioned the payments upon the parties reaching a settlement or abiding by a court judgment on the issue of misappropriation of funds. As part of the stipulation, the parties agreed to fully cooperate with GAPS in preparation of an inventory and accounting of assets, income, withdrawals, and deposits and to allow GAPS to employ a forensic accountant to analyze the misappropriation claims. The stipulation stated:

4. Before any payment is made from the assets of the Estate to any heir, the parties will either
a. reach a settlement agreement pertaining to the claims identified in Paragraph 5 below or
b. abide by a final Judgment of the Trial Court determining the merits of the claims identified in Paragraph 5 below if settlement cannot be reached. The amounts awarded to the Estate in either the settlement agreement or Judgment of the Trial Court, as the case may be, shall then ...

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