In re: Estate of Loretta M. Chisholm, Decedent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0123

In re: Estate of Loretta M. Chisholm, Decedent.

Filed January 22, 2018
Affirmed
Jesson, Judge

Clay County District Court
File No. 14-PR-12-4412

Michael T. Andrews, Ann E. Miller, Anderson, Bottrell, Sanden & Thompson, Fargo,
North Dakota (for appellant Randal Chisholm)

Berly D. Nelson, Ian R. McLean, Serkland Law Firm, Fargo, North Dakota (for appellant
Kevin Chisholm)

Todd E. Zi mmerman, Benjamin J. Hasbrouck, Aubrey J. Zuger, Fredrickson & Byron,
P.A., Fargo, North Dakota (for respondents Barbara Seelhammer, Darcy Nordick, Daryl
Chisholm, and SuRae Schmidt)

Sara Sorenson, Christopher McShane, Ohnstad Twichell, P.C., West Fargo, North Dakota
(for Heartland Trust Company as special administrator of the Estate of Loretta M.
Chisholm)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After Loretta Chisholm passed away, the original version of her will was missing
and a copy was submitted to probate. Against a backdrop of interfamily feuds and
2
deteriorating relationships, the district court determined the will was missing because
Loretta intended to revoke it. The court concluded that the will wa s invalid and that
Loretta’s assets should be distributed through the laws of intestacy. Two of her children
now appeal, arguing the district court was precluded from determining the validity of the
will, the district court erred in determining it was revoked, and the dependent relative
revocation doctrine should have applied. We affirm.
FACTS
Loretta Chisholm passed away in 2012, leaving behind multiple wills that have since
become the focus of two appeals, including this one. 1 Loretta was survived by her seven
children, including her sons Randal and Kevin, appellants in this current appeal.
Respondents are four of Loretta’s other children: Barbara, Darcy, SuRae, and Daryl.2 The
last two years of Loretta’s life provide the ma jority of the facts on appeal, but the
interfamily dispute is longstanding.
Loretta and her husband owned several pieces of farmland, in addition to their
family home. Loretta’s husband passed away in 1994 and left two trusts containing much
of the farmland. Loretta was the sole income beneficiary of each trust. Randal and Daryl
were the original trustees, but Kevin eventually replaced Daryl. Randal and Kevin served
as trustees through Loretta’s death, and both initially rented farmland from the trusts.

1 Loretta’s estate was the issue of a 2015 probate appeal before this court. See In re Estate
of Chisholm, No. A14-1347, 2015 WL 4528782, at *1 (Minn. App. July 6, 2015).
2 A seventh child, Byron, is not a named party.
3
In May 2010, Loretta executed a will (2010 will), which gave Randal and Kevin the
bulk of the farmland and did not give any farmland to Barbara, Darcy, Daryl, or SuRae. It
also devised the family home to her daughters, Barbara, Darcy, and SuRae. This will was
prepared by Loretta’s longtime attorney, Tom Opheim. Opheim officially retired in 2011,
but began ending his practice earlier and stopped representing Loretta by the end of 2010.
In September 2010, Loretta contact ed a new attorney, Ken Norm an, about potential
changes to her estate planning . In a March 2012 letter, Norman wrote to Loretta stating
that he understood, based on previous discussions, that she intended to leave the farmland
to Kevin, and any other land in her name, such as the fa mily home, to her daughters. In
July 2012, Norman sent Loretta estate planning documents, including a draft of a will that
left most of her assets to Kevin. Notably, Randal would receive much less under these
proposed plans than in the 2010 will.3 Loretta did not execute the will sent to her.
In August 2012, Loretta, who had cancer, was hospitalized for three days. While in
the hospital, Darcy and Barb visited her frequently, but did not permit any other visitors.
After Loretta was discharged, Barb moved in with Loretta, and both Darcy and Barb began
round-the-clock supervision of Loretta. Barb and Darcy had unfettered access to Loretta
and her documents and determined who was able to visit her. Loretta was admitted to
hospice care in September 2012 . Barbara arranged for a meeting between Norman and
Loretta to discuss estate planning. A few days later, Loretta executed a new will ( 2012

3 In these plans Randal either received nothing or very little , when in the 2010 will, he
received a large portion of the farmland.
4
will), which gave most of the farmland to Barbara, Darcy, Daryl, and SuRae, while giving
little land to Kevin, and nothing to Randal. In October 2012, Loretta passed away.
Daryl, Barbara, Darcy, and SuRae filed a petition for probate of the 2012 will .
Randal and Kevin objected and urged the district court to instead determine the 2010 will
was valid and should be submitted to probate. A trial was held in February 2014, where
the majority of the testimony focused on the validity of the 2012 will.4 In a 2014 order,
the district court determined that the 2012 will was invalid and should not be admitted to
probate due to a lack of testamentary capacity and undue influence , and the 2010 will
should instead be submitted to probate. While the court did not make any determinations
regarding the validity of the 2010 will, it did compare the contents of the 2010 will to the
contents of the 2012 will to assess the validity of the 2012 will. The version of the 2010
will that was submitted as an exhibit in the case was not the original, but merely a copy.
The district court’s order was appealed to this court, where it was affirmed. This court did
not discuss the validity of the 2010 will, although it did state, “Loretta’s original 2010 will
was consistent with her long-expressed intent.”5
After the 2012 will was determine d to be invalid , respondents Daryl, Barbara,
Darcy, and SuRae filed a motion for clarification regarding the validity of the 2010 will.
Respondents argued that the validity of the 2010 will was not an issue in the earlier

4 The only references to the validity of the 2010 will were mentioned in passing or in
conclusory statements. For example , Norman testified that the will was effective to the
best of his knowledge, and Kevin testified that there was a valid will in place from 2010.
5 For more details on this original appeal, please refer to our previous decision, In re Estate
of Chisholm, No. A14-1347, 2015 WL 4528782, at *1.
5
proceedings and that the 2010 will was invalid. They pointed out that the original version
of the 2010 will was missing, and under Minnesota law, this means it is presumed to be
revoked and invalid. In support of their motion, respondents submitted a receipt showing
Loretta took the original version of the 2010 will from her attorney Opheim’s office in
October 2011. Appellants Kevin and Randal both filed separate responses oppos ing
respondents’ motion. They contended that respondents were precluded from contesting
the validity of the 2010 will pursuant to several different legal theories.
In March 2016, the district court determined a trial was needed to assess the validity
of the 2010 will. At the outset of trial, the district court clarified that the first trial solely
considered the validity of the 2012 will, and the 2010 will was not at issue:
I want to make one thing very clear here. That in my prior
ruling invalidating the 2012 will I did not find that the 2010
will was valid. I said that it should be submitted to probate.
Probate is a Latin word that means to prove. So my intent was
to submit it to that process whereby it would be proved that
that was a valid will an d should be implemented. I did not
order that it be implemented. I ordered that it be submitted to
probate. And I later issued a clarification on that. So I
definitely am of the view that I did not make a finding on the
validity and continued operational effect of the 2010 will.
The trial lasted for three days. T he testimony focused on the validity of the 2010 will,
which centered around three subjects: (1) Randal’s falling out with Loretta; (2) the physical
status of the 2010 will; and (3) Loretta’s intent and knowledge of revoking wills.
The poor relationship between Loretta and Randal took center stage at the trial.
Soon after the execution of the 2010 will, a full-blown dispute developed between Loretta
and Randal regarding Randal’s role as trustee. Daniel Johnson, Loretta’s trust -related
6
attorney, testified that Loretta informed him that she decided to remove Randal as a trustee.
Loretta explained that Randal failed to meet her standards for trustee responsibilities and
used farming practices she opposed. In April 2011, Johnson sent a letter to Randal on
Loretta’s behalf, requesting that he voluntarily resign or legal action would be taken.
Randal refused to resign, upsetting Loretta. Later, Randal attached conditions to resigning,
which further distressed his mother . Soon afterwards, Loretta told Johnson to start legal
proceedings to rem ove Randal. She listed several reasons to justify his removal ranging
from deficiencies in his duties as trustee to insults and threats he made toward her.
Testimony showed that Randal attempted to meet with Loretta over the trust dispute,
but Loretta refused. In a September 2011 letter , Johnson wrote to Randal that Loretta did
not intend to disinherit Randal or to stop him from renting the trust land. Johnson testified
that he interpreted this to mean that Loretta would not disinherit Randal or prevent him
from renting land if he resigned as trustee, but she would potentially take those steps if he
refused to resign. This interpretation was consistent with a subsequent letter, where
Johnson informed Randal that Loretta was not going to allow him to ren t the land. And
indeed, at the end of the farmland lease, Loretta did not allow Randal to continue to rent
the land. At no point did Randal resign as trustee.
Several other individuals testified regarding Randal and Loretta’s deteriorated
relationship. Barbara testified that Loretta wanted to remove Randal from the land because
of his farming practices. She also testified that in 2010 or 2011, Randal and Loretta got in
an argument, and Randal threw a cross at her. Kevin testified that the falling out began in
2005 and escalated from there. Their strained relationship continued up through Loretta’s
7
death, and Randal did not attend the funeral. Norman testified that Loretta’s intent
regarding estate planning was in a state of flux and included plans to leave the bulk of her
estate to Kevin or the daughters. Norman also testified that Loretta was upset with Randal
in 2012 and that there were no discussions to leave any assets to Randal.
The physical status of the 2010 will also was a focus at trial . When Loretta’s
attorney Opheim retired, she needed to retrieve legal documents he had in his possession.
In October 2011, Loretta went to Opheim’s office to obtain the original of the 2010 will,
and she received it in a blue folder. The following year, on August 21, 2012, Loretta
brought a large box of items and documents to Norman’s office for safekeeping. These
were the items and documents Loretta thought were the most important. Kevin testified
that he accompanied Loretta to Norman’s office but did not look at the contents of the box.
However, he did recall seeing a blue folder in the box, similar to the blue folder that Loretta
received at Opheim’s office. A later inventory of these boxed documents showed it did
not contain the original version of the 2010 will.
No witnesses testified that they had seen the original version of the 2010 will after
Loretta obtained it. Barbara and Darcy both testified they never saw the 2010 will prior to
litigation. Barbara testified that she and the other daughte rs cleaned out Loretta’s house
after her death, and there was no 2010 will. She further stated that any legal documents
they found were provided to lawyers. Kevin testified that he believed the original 2010
will was at Loretta’s home, but had not actually seen it there.
Finally, evidence was presented regarding Loretta’s knowledge of destroying wills
and her past habits. Opheim stated that whenever he drafted a new will, Loretta would
8
give him the previous will to destroy. He further explained that as far as he knew, Loretta
never destroyed a will on her own. Norman testified that after Loretta became his client,
he informed her about storing, revoking, and destroying wills. Norman also testified that
Loretta had no intent to die without a will or to leave any assets to Byron. He further
testified that there were no indications Loretta wished to proceed under the 2010 will.
In its findings of fact, t he district court determined that Loretta was the last
individual to be in possession of the original 2010 will and that it was missing at the time
of litigation. This created a presumption that it was revoked. The court held, in light of
the falling out between Randal and Loretta and the evidence establishing Loretta did not
want to proceed under the 2010 will , that Loretta personally destroyed the will before
August 21, 2012. The court found that August 21 was the latest date Loretta could have
destroyed the will, because that was the day she brought her most important documents to
Norman, and the 2010 will was not there. The district court acknowledged Loretta did not
want to die intestate, but found that she would have actually preferred to die intestate than
have her assets distributed in accordance to the 2010 will, because of her falling out with
Randal. The court concluded that the 2010 will was revoked and invalid and that her estate
should be divided according to the laws of intestacy. This appeal follows.
D E C I S I O N
Appellants argue the district court erred in three different manners by: (1) reaching
the issue of the 2010 will’s validity because that issue was precluded under several legal
theories; (2) determining the 2010 will was revoked and invalid; and (3) holding the
dependent relative revocation doctrine did not apply. We address each issue in turn.
9
I. The district court was not precluded from determining whether the 2010 will
was invalid.
Appellants provide several different legal theories to support their argument that the
district court should not have reached the validity issue of the 2010 will: (1) law-of-the-
case doctrine; (2) Minnesota Statutes sections 524.3 -412 (2016); (3) collateral estoppel;
and (4) res judicata.6 These arguments boil down to appellants’ contention that either the
validity of the 2010 will was addressed during the probate proceedings for the 2012 will,
so it cannot be litigated a second time , o r that respondents missed their opportunity to
litigate the validity of the 2010 will during the earlier proceeding. The district court did
not address each argument explicitly, but instead rejected them all on the grounds that it
never reached the issue of the 2010 will during the first trial.

6 Appellants also argue respondents waived their argument that the 2010 will was invalid.
Waiver “is the intentional relinquishment of a known right.” Valspar Refinish, Inc. v.
Gaylord’s, Inc., 764 N.W.2d 359, 367 (Minn. 2009) (quotation omitted). Knowledge and
intent are both necessary elements of waiver. Id. Here, the petition for probate was for the
2012 will, the first trial was regarding the validity of the 2012 will, and the appeal addressed
the 2012 will. After this appeal, respondents for the first time asserted their argument about
the 2010 will. Because this issue had not yet been argued, and the previous trial determined
a different issue, this is not a rare instance where this court should find waiver as a matter
of law. See id., 764 N.W.2d at 367 (stating waiver should “rarely” be inferred as a matter
of law). Furthermore, a ppellants do not cite to any case law holding waiver in similar
circumstances apart from a readily distinguishable Texas decision. See Brown v. Traylor,
210 S.W.3d 648, 667 (Tex. App. 2006) (analyzing waiver in the context of a sufficiency -
of-the-evidence argument and holding the argument was waived when it was not raised
with the district court in an appropriate motion or objection). Appellant Kevin also argues
that respondents’ argument was barred by rule 60.02 of the Minnesota Rules of Civil
Procedure. But this was the extent of the argument and not accompanied by legal authority
or analysis. As a result, the issue is forfeited. See Melina v. Chaplin, 327 N.W.2d 19, 20
(Minn. 1982) (stating that issues not briefed on appeal are not properly before the appellate
court).
10
Whether these legal theories are available to the district court is a question of law
that we review de novo. See Hauschildt v. Beckingham, 686 N.W.2d 829, 837, 840 (Minn.
2004) (stating whether res judicata applies to a set of facts is reviewed de novo and whether
collateral estoppel applies is a mixed question of law and fact that we review do novo);
Correll v. Distinctive Dental Servs., P.A. , 607 N.W.2d 440, 443 (Minn. 2000) (stating
questions regarding statutory construction are legal issues this court reviews de novo). But
for several of these theories, including res judicata, if they can apply, whether to apply
them is within the trial court’s discretion. 7 See Dixon v. Depositors Ins. Co., 619 N.W.2d
752, 755 (Minn. App. 2000) (stating the district court’s decision to apply res judicata, once
it is determined to be available, is reviewed for abuse of discretion). Based upon our
review, we conclude that these preclusion arguments are inapplicable for two reasons.
First, the majority of these theorie s require that the validity issue of the 2010 will was
litigated in the first trial or appeal, which it was not. Second, the res judicata theory that
conceivably could have applied is a discretionary doctrine, and the facts of this case do not
lead us to disturb the district court’s exercise of that discretion.
The law-of-the-case doctrine, collateral estoppel, and Minnesota Statutes section s
524.3-412 all require the issue in question —here the validity of the 2010 will—to have
been previously litigated for it to be subsequently precluded. The law-of-the-case doctrine
applies when an appellate court has ruled on a legal issue and remanded the case for further

7 We note that the argument involving Minnesota Statutes sections 524.3-412 is a statutory
question of law reviewed de novo and is not discretionary. See Correll, 607 N.W.2d at
443.
11
proceedings on other matters. Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d
793, 795 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). It does not reach issues
that could have been, but were not, litigated. Sigurdson v. Isanti Cty., 448 N.W.2d 62, 66
(Minn. 1989). Similarly, Minnesota Statutes sections 524.3 -412 states that formal
testimony orders are final with respect to all issues the “court considered” or “ might have
considered incident to its rendition relevant to the question of whether the decedent left a
valid will.”8 Lastly, collateral estoppel precludes parties from arguing subsequent issues
in a later action only if the issue is “the same as that adjudicated in the prior action and it
must have been necessary and essential to the resulting judgment in that action.” 9
Hauschildt, 686 N.W.2d at 837. The issues must have been “distinctly contested and
directly determined in the earlier adjudication.” Id. at 837-38. To apply, these preclusion
arguments demand that the 2010 will validity issue was litigated in the first proceeding.
Here the law -of-the-case doctrine, collateral estoppel, and Minnesota Statutes
sections 524.3-412 are inapplicable because the issue of the 2010 will’s validity was not

8 Minnesota Statute s sections 524.3-412 also reaches issues that might have been
considered “incident to” the issue of the validity of the 2012 will. While we do not
comment on whether the district court may have considered the validity of the 2010 will
during the first trial, we note that “in cident to” is narrower than may or could have. See
Black’s Law Dictionary 879 (10th ed. 2014) (defining “incident” as, “ Dependent on,
subordinate to, arising out of, or otherwise connected with ”). T he 2010 will’s validity
would not have been considered “ incident to” the validity of the 2012 will. Instead the
validity of the 2010 will is a separate issue from—and does not need to be reached in order
to determine—the validity of the 2012 will.
9 For collateral estoppel to apply, it requires that “(1) the issue was identical to one in a
prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was
a party or in privity with a party to the prior adjudication; and (4) the estopped party was
given a full and fair opport unity to be heard on the adjudicated issue.” Illinois Farmers
Ins. Co. v. Reed, 662 N.W.2d 529, 531 (Minn. 2003).
12
considered in the first proceeding. The district court explicitly stated in subsequent orders
it never consid ered the validity of the 2010 will in the first proceeding, 10 there was no
evidence presented establishing or attacking the validity of that will, and at the time of the
2014 trial , the district court was not even aware the original version of th at will was
missing. Simply put, the validity of the 2010 will was never at issue during the first
proceeding or appeal. But w hile law -of-the-case doctrine , collateral estoppel, and
Minnesota Statutes sections 524.3-412 are inapplicable for this reason, this does not resolve
the broader doctrine of res judicata.
Res judicata does not require the issue or claim to have been previously raised. Res
judicata, or claim preclusion, precludes parties from raising subsequent claims in a later
action when “(1) the earlier claim involved the same set of factual circumstances; (2) the
earlier claim involved the same parties or their privities; (3) there was a final judgment on
the merits; (4) the estopped party had a full and fair opportunity to litigate the matter.”
Brown-Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 220 (Minn. 2007) (quoting
Hauschildt, 686 N.W.2d at 840) (internal quotations omitted). Res judicata applies to both
claims that were actually litigated and claims that could have been litigated. Id.

10 Even if the post-trial order for the first trial was ambiguous as to whether the validity of
the 2010 will was determined, this court defer s to the district court’s interpretation of its
own order when interpreted by the same judge who authored the order. LaChapelle v.
Mitten, 607 N.W.2d 151, 162 (Minn. App. 2000), review denied (Minn. May 16, 2000).
Here, the same judge wrote both orders, and the district court stated, “I did not find that the
2010 will was valid.” Therefore, we afford the district court’s determination that the 2010
will’s validity was not decided at the first trial a large amount of deference.
13
But res judicata is not to be applied rigidly . Instead the focus is whether applying
the doctrine would create an injustice for the party it is being used against. Hauschildt,
686 N.W.2d at 837. Res judicata should not be applied when it would contravene public
policy. AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd., 356 N.W.2d 295, 299 (Minn.
1984) (stating res judicata should not override public policy) . Thus, whether to apply the
theory of res judicata is a matter of judicial discretion for the district court. Dixon, 619
N.W.2d at 755. And appellate courts should decline to interfere with the district court’s
discretionary decision to not apply the doctrine, if applying the doctrine would result in a
denial of a party’s right to a fair hearing and an opportunity for judicial review on the issue.
See D.H. Blattner & Sons, Inc. v. Firemen ’s Ins. Co., 535 N.W.2d 671, 674 (Minn. App.
1995) (holding res judicata w as properly denied when the parties would be denied a fair
hearing and the opportunity to be heard), review denied (Minn. Oct. 18, 1995).
Here, the district court declined to apply the theory of res judicata , and we decline
to interfere with that discretionary decision. The first proceeding looked at the validity of
the 2012 will. In their initial objection to respondents’ petition for probate of the 2012 will,
appellants urged the district court to instead determine the 2010 will was valid and should
be probated instead. But just as respondents did not argue the 2010 will was invalid at the
first proceeding, appellants never argued it was valid and did not address why the original
was missing. The district court noted it did not make any determinations on the validity of
the 2010 will during the first proceeding, and thus applying res judicata would prevent the
parties from having a fair hearing on the issue. Additionally, appellants were not unfairly
prejudiced by allowing the validity issue to be litigated. They were afforded a full
14
opportunity to argue the 2010 will was valid during the second proceeding. Because res
judicata is a discretionary doctrine, and the district court declined to apply it, this court will
not disturb the district court’s decision.
II. The district court did not err in determining the 2010 will was revoked and
invalid.
Appellants argue the district court , if it properly reached the issue, erred in
determining the 2010 will was revoked and invalid. Appellants contend the district court
erred because (1) it improperly placed the burden of proof on appellants; (2) its findings of
fact were not supported by the record; and (3) its finding that appellants did not overcome
the presumption that the will was revoked was clearly erroneous. We disagree.
Whether the burden of proof was erroneously placed on appellants involves the
interpretation of a statute, which we review de novo. See In re Estate of Sullivan , 868
N.W.2d 750, 752 (Minn. App. 2015). A will is revoked by “performing a revocatory act”
on the will. Minn. Stat. § 524.2 -507(a)(2) (2016). This includes “burning, tearing,
canceling, obliterating, or destroying the will or any part of it.” Id. The party asserting the
testator intentionally revoked a valid will must prove that there was a valid and effective
revocation. Minn. Stat. § 524.3 -407 (2016). And parties maintain the ultimate burden of
persuasion as to matters for which they have the initial burden of proof. Id. This means
that here, respondents had the initial burden of proof and the ultimate burden of persuasion
that the will was revoked . However, if the original will is not produced, it permits a
rebuttable presumption that the will was revoked. In re Estate of Botko, 541 N.W.2d 616,
15
619 (Minn. App. 1996) , review denied (Minn. Feb. 27, 1996) .11 Here, the original 2010
will was not produced, and the district court acted within its proper scope of discretion in
determining there was a presumption that the original will was revoked. 12 As a result, the
district court did not err in concluding that appellants had the burden of overcoming this
presumption with evidence of nonrevocation, while respondents maintained the ultimate
burden of persuasion.
Nor are we persuaded by appellants’ argument that the district court’s findings of
fact are not supported by the record. A district court’s findings of fact are set aside only if
clearly erroneous. M & G Servs., Inc. v. Buffalo Lake Advanced Biofuels, LLC, 895 N.W.2d
277, 281 (Minn. App. 2017), review denied (Minn. June 28, 2017). The district court
determined that Loretta was the last to have possession of the original will ; no one else
ever saw the will after Loretta took possession of it ; the will was not given to attorney
Norman when Loretta brought him her boxed important documents; Loretta was informed
about how to revoke a will; Loretta and Randal had a large falling out; and Loretta would
rather die intestate than under the 2010 will, where Randal would inherit a large amount of

11 Appellant Randal argues this presumption can be imposed only if respondents meet their
burden in establishing there was no evidence that the will was kept by someone other than
Loretta. But caselaw does not establish that such a burden exists. In In re Estate of Botko,
the court determined there was a presumption the will was revoked when (1) the original
was not produced and (2) the record showed no evidence that the original will was kept by
someone else. 541 N.W.2d at 619. But this case is silent on the burden on the second
requirement. And we do not need to reach the issue of whether respondents had a burden
because h ere there is no evidence in the record that anyone other than Loretta had
possession of the original 2010 will.
12 Appellant Kevin argues that the failure to introduce the original version does not prove
revocation. However, neither the district court nor respondents have asserted the failure to
introduce the original version is dispositive. It merely creates a presumption.
16
farmland. A close review of the record shows that each one of these facts was supported
by the record. The district court did not commit clear error.
Finally, appellants contend the district court err ed by determining that they did not
overcome the presumption that the lost will was revoked . Whether a will is executed in a
manner prescribed by statute is a question of fact that we review under the clearly erroneous
standard. See In re Estate of Sullivan , 868 N.W.2d at 752; see also Matter of Estate of
Langlie, 355 N.W.2d 732, 735 (Minn. App. 1984) (reviewing whether the district court
erred in determining a lost will was not revoked under the clearly erroneous standard).
Appellants argue they rebutted the presumption because they established that respondents
had access to Loretta’s documents and they had unduly influenced her previously . While
both of these facts are supported by the record, the district court determined that no one—
including respondents—possessed the will at any time, and the court stated that there was
“no evidence to support any theory that the [respondents] destroyed” the original will .
Appellants also emphasize the fact that Kevin testified that he saw a blue folder, similar to
the one containing the original 2010 will Loretta received, in the box Lore tta gave to
Norman. But the district court found Kevin’s testimony deserving of little evidentiary
weight, and we defer to the court’s credibility determinations. See Vangsness v. Vangsness,
607 N.W.2d 468, 472 (Minn. App. 2000). 13 Because of the numerous pieces of evidence
suggesting the will was revoked, the district court’s finding that appellants were unable to
overcome the presumption that the will was revoked was not clearly erroneous.

13 Furthermore, the district court acknowledged this fact about the blue folder, but still
made the determination that Loretta did not include the 2010 will in the box of documents.
17
III. The district court did not err in determining the dependent relative revocation
doctrine did not apply.
Appellants argue that if the 2010 will was invalid, the district court erred by not
applying the dependent relative revocation doctrine. This is a mixed question of law and
fact, and this court corrects erroneous applications of law, but “accord[s] the district court
discretion in its ultimate conclusions and review[s] such conclusions under an abuse of
discretion standard.” In re Estate of Sullivan, 868 N.W.2d at 754.
The dependent relative revocation doctrine allows courts to give the intended effect
to the terms of a revoked will in certain situations, if doing so would be consistent with the
testator’s intent.14 See id.; In re Anthony’s Estate, 265 Minn. 382, 390, 121 N.W.2d 772,
778-79 (1963). The doctrine applies when the circumstances connected with the revocation
“are such as to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of the new disposition intended to be substituted.” 15 In re Nelson’s

14 The dependent relative revocation doctrine is different from reviving a revoked will
pursuant to Minnesota Statutes section 524.2-509. This statute allows a previously revoked
will to be revived, if it is consistent with the testator’s intent, in circumstances where the
subsequent will is revoked by a revocatory act. Minn. Stat. § 524.2 -509(a). Here the
subsequent will was not revoked by a revocatory act, but was instead invalidated. That
statutory provision is inapplicable to these facts.
15 No published case has reduced this doctrine to elements, but in the unpublished case, In
re Estate of Perrault, this court listed three prerequisites: “(1) the decedent must have had
a valid will; (2) the decedent must have revoked or destroyed that will with the intention
of making a new will; and (3) the new will, if mad e, must fail for any reason or be
inoperative through lack of formality.” No. A09 -1103, 2010 WL 2035714, at *4 (Minn.
App. May 25, 2010), review denied (Minn. Aug. 10, 2010). The district court cited these
elements and found element two was lacking. But it is not necessary for this court to adopt
a bright line test as the doctrine is inapplicable here because applying the doctrine would
be inconsistent with Loretta’s intent and because the record does not support that the
revocation was contingent on the creation of the 2012 will.
18
Estate, 183 Minn. 295, 298, 236 N.W. 459, 461 (1931). This follows the common law
principle that when the revocation of a will is unconditional, then the will is revoked
regardless of whether the subsequent will is invalid, and courts do not look to the testator’s
intent. In re Scott’ s Will , 88 Minn. 386, 388, 93 N.W. 109, 110 (1903). But if the
revocation is condition al on the creation of a valid subsequent will, and that later will is
invalidated, then courts may look to the testator’s intent to determine if the revoked will
should be given its intended effect. See id.
At its essence, t his doctr ine is used to effectuate the testator’s intent in
circumstances where the revocation was conditional . See In re Anthony ’s Estate , 265
Minn. at 390, 121 N.W.2d at 779. Importantly, this doctrine only creates a presumption
that the revocation is ineffective. Its application is not ironclad against contrary evidence
suggesting the testator would not want the revoked terms to be given effect. See
Restatement (Third) of Property § 4.3 & cmt. a (1999). Because the revocation of the 2010
will was not dependent on the creation of a new will, and applying the doctrine would be
inconsistent with Loretta’s intent as determined by the district court, we determine that the
district court correctly held the doctrine is inapplicable.16

16 Applying the doctrine here, where the two wills drastically differ in their terms and
purpose, would also go against the grain of how the doctrine is traditionally applied. The
doctrine is generally used in circumstances where a mistake has been made or where there
are minor changes made in the subsequent will, as opposed to where there are wholesale
changes. See, e.g., Watson v. Landvatter, 517 S.W.2d 117, 121–22 (Mo. 1974) (stating the
doctrine is “particularly applicable” to where the second will does “not change the
testamentary purpose but only minor details” ); La Croix v. Senecal , 99 A.2d 115, 118
(Conn. 1953) (applying the doctrine when the testator made only a “very minor change”).
19
Here it is not a reasonable interpretation that Loretta’s revocation of the 2010 will
was dependent on the creation of the 2012 will. The district court’s determination that the
2010 will was destroyed, at the latest, on August 21, 2012, means that the will was revoked
at least one month prior to the execution of the 2012 will. The circumstances do not suggest
Loretta revoked the 2010 will on the condition that she would create the 2012 will. Instead,
the district court’s findings suggest that she wished to remove R andal from her will, and
destroyed the 2010 will that was favorable to him. Loretta’s revocation of the 2010 will
does not lead to the determination that the revocation was dependent on the execution of
the 2012 will.
And this leads to the critical point that applying the doctrine would not be consistent
with Loretta’s intent . The district court explicitly found that Loretta did not intend to
proceed with the terms of the 2010 will. It found that submitting the 2010 will to probate
would go against Loretta’s intent as she “would have actually preferred to risk having her
estate distributed via the laws of intestacy rather than having her estate distributed in
accordance with” the 2010 will. While appellants argue that it is undisputed that Loretta
did not intend to die intestate, this does not equate to determining Loretta intended to have
her estate distributed in accordance with the 2010 will, which the doctrine requires.
Because the revocation of the 2010 will was not conditional, and applying the
dependent relative revocation doctrine would not further Loretta’s intent, the district court
acted within its scope of discretion and did not erroneously apply the law.
Affirmed.