In the Matter of the Trust Created by Eileen Carlson Kasell, dated September 10, 2013, as amended.

This opinion will be unpublished and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
A18-0340

In the Matter of the Trust Created by Eileen Carlson Kasell,
dated September 10, 2013, as amended.

Filed November 13, 2018
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-TR-CV-15-186

Donald W. Carlson, Otsego, Minnesota (pro se appellant)

William R. Asp, Best & Flanagan LLP, Minneapolis, Minnesota (for respondent
Associated Trust Company)

Steven R. Little, SRL Law, PLLC, Minneapolis, Minnesota (for respondent Eileen Kasell).

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this trust dispute, pro se appellant challenges the district court’s order removing
him as a beneficiary of the trust. We affirm.

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FACTS
Respondent E ileen Carlson Kasell is the trustor and primary beneficiary of the
Eileen Carlson Kasell Revocable Trust Agreement. Article One, Paragraph 1.1 of the Trust
reserves to Kasell the right to “amend, in whole or in part, or to revoke the dispositive
provisions [of the Trust] by a writing delivered to [the] Trustees.” Associated Trust
Company, N.A. (Associated Trust), serves as the current trustee of the Trust. Kasell has
two adult sons, appellant Donald William Carlson and G.C ., who were, until recently, the
named contingent beneficiaries of the trust at Kasell’s death.
On January 6, 2016, Carlson, Kasell, Associated Trust, and G.C. entered into a
settlement agreement which provided that Kasell waived her right to freely amend the Trust
and that a court order would be require d for future amendments. On August 11, 2017,
Kasell signed the Third Amendment and Complete Restatement of the Eileen Carlson
Kasell Revocable Trust Agreement (Third Amendment) . Th at amendment removed
Carlson as a contingent beneficiary of the Trust, leaving G.C. as the sole beneficiary.
On August 31, 2017, Kasell appeared before the district court for matters relating to
the Trust but not pertaining to the Third Amendment and not encompassed by this appeal.
At that hearing, the district court asked K asell to testify about the amendment. Kasell
testified that she had amended her trust approximately two weeks earlier, of her own free
will, and with the intent to remove Carlson as a beneficiary. Kasell testified that she was
of sound mind at the time o f the hearing, but when asked whether she was of sound mind
when she signed the amendment, the discussion went off topic and she did not answer the

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question. On September 13, 2017, Kasell petitioned the district court to authorize the Third
Amendment.
On September 26 and October 16, 2017, Carlson filed objections to the Third
Amendment. He claimed that Kasell’s amendment was based on “misinformation”
provided by G.C., that Kasell’s attorney was “selected by” G.C. and was acting “more in
the interests of G.C. and [G.C.’s wife] than the interests of [Kasell],” and that he (Carlson)
was suffering from a medical disability and required a continuance of the contested
hearing. The district court denied Carlson’s request for a continuance.
On October 26, 2017, the district court held a hearing on the petition for the Third
Amendment. At that hearing, Carlson argued that Kasell was not “ competent” to make
this amendment, citing to Kasell’s “multiple brain surgeries, [the] drains planted in h er
brain,” and various unspecified “psychiatric or medical opinions that [Kasell] was not
competent.” Carlson also argued that Kasell mistakenly believed that he had taken money
from her, that “her legal representation [had] been effectively hijacked,” an d that she
mistakenly believed that he had been “found guilty” of some sort of wrongdoing by “some
Hennepin County official authority,” a reference to an unrelated proceeding involving
Hennepin County Adult Protective Services. Carlson admitted that he di d not have
“medical or psychiatric evidence” that Kasell was incompetent, but argued that his lack of
evidence was because he had “been denied access to her to get her in front of the doctor.”
Carlson offered five exhibits, and the district court sustained relevance objections to all but
one, a petition for appointment of a guardian and conservator that Carlson filed on behalf
of Kasell. Kasell did not present any testimony or evidence at this hearing.

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The district court issued an order granting the petition to amend the Trust, implicitly
rejecting Carlson’s challenge to Kasell’s capacity. The court found that Kasell was “not
under guardianship or conservatorship,” and “desire[d] to amend the Trust.” After noting
that Kasell properly followed the procedures required to amend the Trust, the district court
concluded that the “Third Amendment to the Trust should be allowed.” Carlson appeals.
D E C I S I O N
We begin with a review of the principles that govern this appeal. Although some
accommodations m ay be made for pro se litigants, they are generally held to the same
standards as attorneys. Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001).
The appellate court does not retry the case, weigh the evidence, or assess witness credibility
on appeal. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). “It is well settled that
an appellate court may not base its decision on matters outside the record on appeal, and
that matters not produced and received in evidence below may not be considered.”
Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).
“[O]n appeal error is never presumed. It must be made to appear affirmatively
before there can be r eversal. . . . [T]he burden of showing error rests upon the one who
relies upon it.” Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quotation omitted). Mere
assertions of error without supporting legal authority or argument are waived unless
prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc. , 558
N.W.2d 770, 772 (Minn. App. 1997). “[I]ssues not adequately briefed are waived.” Brooks
v. State, 897 N.W.2d 811, 819 (Minn. App. 2017), review denied (Minn. Aug. 8, 2017).

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An assertion of fact in a brief must be supported with citation to the record. Minn. R. Civ.
App. P. 128.02, subd. 1(c).
Additionally, merely showing error by a district court is insufficient to obtain relief
on appeal; to obtain relief, an appellant must also show that any error was prejudicial. See
Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Kallio v. Ford Motor Co., 407
N.W.2d 92, 98 (Minn. 1987) (stating t hat “[a]lthough error may exist , unless the error is
prejudicial, no grounds exist for reversal”). In short, on appeal, it is not the appellate
court’s obligation to demonstrate that the district court’s decision is correct; it is the
appellant’s obligation to show, based on the record that was before the district court when
it made its decision, that the district court’s decision is incorrect and that, as a result ,
appellant was prejudiced.
With those principles in mind, we turn to Carlson’s challenges to the district court’s
order allowing the Third Amendment to Kasell’s trust. He ass erts that Kasell was “not
competent” to make this decision and that she was unduly influenced by G.C. Carlson also
raises the issue of his own medical incapacity, which we interpret as an assertion that the
district court erred by refusing to grant his re quest for a continuance. Carlson does not
support his assertions of error with legal argument; nor does he cite legal authority or
provide legal analysis. We therefore limit our review to an inspection of the record for
obvious prejudicial error. See Modern Recycling, Inc., 558 N.W.2d at 772.
Minn. Stat. § 501C.0601 (2016) provides that “[t]he capacity required to create,
amend, or revoke a revocable trust . . . is the same as that required to make a will.” The
standard for evaluating capacity and undue influence in relation to a trust is the same

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standard used in relation to execution of a will. See Norwest Bank Minn. N., N.A. v.
Beckler, 663 N.W.2d 571, 579 (Minn. App. 2003) (“[T]he standard used in evaluating the
capacity of [the trustor] to execute these powers of appointment is that used in determining
testamentary capacity for the execution of a will.”); Arneson v. Arneson, 372 N.W.2d 20,
21-22 (Minn. App. 1985) (considering issues of lack of testamentary capacity and undue
influence in the context of a trust instrument), review denied (Minn. Oct. 11, 1985).
The standard for contested will proceedings is set forth in Minn. Stat. § 524.3-407
(2016):
Proponents of a will have the burden of establishing prima
facie proof of due execution in all cases, and, if they are also
petitioners, prima facie proof of death and venue. Contestants
of a will have the burden of establishing lack of testamentary
intent or capacity, undue influence, fraud, duress, mistake or
revocation. Parties have the ultimate burd en of persuasion as
to matters with respect to which they have the initial burden of
proof.

“The contestants of a will have the burden of proving lack of testamentary capacity
and undue influence.” In re Estate of Olsen , 357 N.W.2d 407, 411 (Minn. App . 1984),
review denied (Minn. Feb. 27, 1985). A person has the necessary testamentary capacity to
execute a will or trust if she “understands the nature, situation, and extent of [her] property
and the claims of others on [her] bounty or [her] remembrance,” and she is “able to hold
these things in [her] mind long enough to form a rational judgment concerning them.” In
re Estate of Congdon, 309 N.W.2d 261, 266 (Minn. 1981) (quotation omitted ). Evidence
of undue influence includes
the opportu nity to exercise it , active participation in the
preparation of the will by the party exercising it, a confidential

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relationship between the person making the will and the party
exercising the influence, disinheritance of those whom the
decedent probably would hav e remembered in [her] will,
singularity of the provisions of the will, and the exercise of
influence or persuasion to induce [her] to make the will in
question.

Olsen, 357 N.W.2d at 411 (citing In re Estate of Wilson , 27 N.W.2d 429, 432 (Minn.
1947)).
A district court’s determination of whether a person lacks testamentary capacity or
was subjected to undue influence is a question of fact that this court will not set aside unless
clearly erroneous. See In re Estate of Larson , 394 N.W.2d 617, 620 (Minn. Ap p. 1986)
(“The [district] court’s findings on undue influence are not to be set aside unless clearly
erroneous.”), review denied (Minn. Dec. 12, 1986); In re Estate of Rasmussen, 69 N.W.2d
630, 634 ( Minn. 1955) (noting that in cases of testamentary capacit y the district court’s
fact finding in cases of testamentary capacity is binding unless clearly erroneous ). A
district court’s factual findings are clearly erroneous “only if the reviewing court is left
with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul
Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). Because the finder
of fact is in the best position to determine witness credibility, we defer to the district court’s
witness credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.
App. 2000).
As to the district court’s implicit determination s that Kasell was neither
incapacitated nor subjected to undue influence, we do not discern obvious prejudicial error.
Although Carlson objected to the Third Amendment on the ground that Kasell was not

8
“mentally competent,” he did not provide any evidence, other than his own opinion, to
support that assertion. At the August 31, 2017 hearing, Kasell testified that she executed
the Third Amendment of her own free will with the intent to “discard [Carlson] from [her]
trust.” She also testified that she was “of sound mind” at the time of the hearing. Although
Kasell’s attorney asked her whether she had been of sound mind when she signed the
amendment, the discussion became sidetracked and she never actually answered the
question. Nonetheless, the district court appears to have found Kasell’s testimony more
credible than Carlson’s unsupported assertions. See Vang v. A-1 Maint. Serv., 376 N.W.2d
479, 482 (Minn. App. 1985) (stating that an actual determination regarding credibility is
necessarily implicit in a fact -finder’s decision when there is conflicting evidence). This
court defers to that credibility determination. See Vangsness, 607 N.W.2d at 472.
Carlson’s assertion of undue influence is similarly unavailing. In district court,
Carlson’s evidentiary support for this assertion was limited to his own opinion. But Kasell
testified that she amended the Trust of her own free will and did not once mention or refer
to G.C., the person allegedly exerting undue influence. Carlson attempted to introduce an
11th Circuit Court of Appeals decision regarding a fraud judgment against G.C., but the
district court sustained Kasell’s relevance objection. On this record, we cannot say that the
district court clearly erred by implicitly finding that Kasell was not subjected to undue
influence.
As to the issue of Carlson’s medical disability and any suggestion that the district
court erred by denying his request for a continuance, Carlson does not explain how he was
prejudiced. He merely states that he was “medically incapacitated” and that his attendance

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at two hearings was affected. However, the two hearings to which Carlson refers—one
that he was “medically unable to attend” and another that he attended “by telephone
conference call from his hospital bed”—pertained to a separate matter not encompassed by
this appeal. Carlson attended the October 26, 2017 hearing on Kasell’s petition to amend
the trust. Again, we do not discern obvious prejudicial error stemming from the district
court’s refusal to grant a continuance.
Although the district court’s findings supporting its order authorizing the Third
Amendment are minimal, the record supp orts the district court’s implicit determinations
that Kasell did not lack capacity and was not subject ed to undue influence. Because we
discern no obvious prejudicial error, we affirm.
Affirmed.