In re the Estate of: Norman Sebert Larson, Deceased.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0261

In re the Estate of: Norman Sebert Larson, Deceased.

Filed January 13, 2020
Affirmed
Reyes, Judge

Otter Tail County District Court
File No. 56-PR-16-3860

Michael R. Ruffenach, Ruffenach Law Office, Laporte, Minnesota (for appellant Allen
Larson)

Kendra E. Olson, Pemberton Law, P.L.L.P., Fergus Falls, Minnesota (for respondents)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant argues on appeal that the district court (1) improperly determined that
decedent executed a valid will despite violations of nursing -home policy and (2) clearly
erred by finding decedent had testamentary capacity despite his poor physical condition
and severe depression. We affirm.
FACTS
Decedent Norman Sebert Larson (decedent) was diagnosed with metastatic renal-
cell cancer in mid-to-late January 2014. He entered a nursing home on January 21, 2014,

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after his doctor found him too weak to care for himself at home. Decedent executed a will
on January 24, 2014, and died on January 30, 2014, at the age of 81.
Decedent did not marry and had no children. He had two b rothers, Duane Larson
and Maynard Larson.1 Appellant Allen Larson is decedent’s nephew and the son of Duane,
who predeceased decedent. Respondent Debra Larson is decedent’s sister -in-law and the
widow of Maynard, who passed away after decedent’s death but before these proceedings.
Respondent Myron Wicklund, president of respondent Leaf Mountain Lutheran Church
(LMLC) at the time decedent executed his will, had known decedent since Wicklund was
approximately eight years old. Decedent attended church services at LMLC every Sunday
and rang the bell weekly to begin servic es there for nearly 40 years. Decedent donated
$62,000 to the church several years prior to his death for a new dining area. He had also
talked with Mark Wicklund, Myron Wicklund’s son and current president of LMLC, years
before his death about donating land to the church.
Under his will, d ecedent devised all of his real pr operty and the remainder of his
estate to LMLC. His will reflected his intent to name Maynard as the beneficiary on hi s
Thrivent Financial accounts, with the exception of one account designated to LMLC. He
completed these beneficiary designations outside of the will. The will also referenced his
wish to transfer his residence and four acres of property to Allen and stated that he wanted
LMLC to complete the deed to transfer the interest if decedent could not do so prior to his
death. LMLC did so.

1 Because the parties and related individuals have the same last name, this opinion will use
the first names of members of the Larson family in subsequent references.

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Attorney Adam Licari drafted decedent’s will and witnessed decedent signing it.
Licari testified that he talked with deceden t about the will outside the presence of any of
the respondents to make sure that the will accurately reflected decedent’s wishes. After
confirming that it did, Licari invited visitors back into the room, and decedent executed the
will. Nurse Mandi Larso n,2 a registered nurse at the nursing home, served as the other
witness. She completed a cognitive analysis of decedent the day he signed his will, which
indicated that his short- and long-term memory were not problematic and that he had an
“alert” level of consciousness, adequate hearing, capacity to understand others, and no
cognitive impairment. She also completed a mental -health assessment of decedent that
day, which categoriz ed him as severely depressed. Banker Robert Reinbold, from First
National Bank, served as the notary for decedent’s will. He had known decedent as a bank
customer for more than 20 years.
In December 2016, Allen filed a petition for fo rmal adjudication of intestacy , to
which respondents objected, citing a valid will. The case proceeded to a court trial. Licari,
nurse Larson, and Reinbold each testified that decedent appeared to be of sound mind when
he executed his will. The district court found the will to be a self-proved will.3 It found
that Allen did not present sufficient evidence to overcome the rebuttable presumption of
decedent’s testamentary capacity from the self-proved will. This appeal follows.

2 No relation to decedent or appellant.
3 A self-proved will must be “(1) in writing; (2) signed by the testator . . . ; and (3) signed
by at least two individuals, each of whom signed within a reasonable time after witnessing
. . . the signing of the will .” Minn. Stat. § 524.2-502 (2018). It must also meet the
requirements in Minn. Stat. § 524.2-504 (2018).

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D E C I S I O N
Allen admits that decedent had a self-proved will. He instead argues that the will is
invalid because (1) the nur sing home allowed non -immediate family members to visit
decedent and (2) decedent lacked testamentary capacity. We address each claim in turn.
Whether a will is properly executed is a question of fact that we review for clear
error. In re Estate of Sullivan, 868 N.W.2d 750, 752 (Minn. App. 2015) (citing Johnson v.
Heltne, 214 N.W.2d 224, 227 ( Minn. 1974)). We will not overturn the district court’s
findings unless, based on a review of the record, we are “left with the definite and firm
conviction” that a mistake has been made. In re Estate of Anderson, 384 N.W.2d 518, 520
(Minn. App. 1986) (quoting In re Estate of Congdon , 309 N.W.2d 261, 266 n.7 (Minn.
1981)). Any person of sound mind and at least 18 years old may make a will. Minn. Stat.
§ 524.2-501 (2018). A self-proved will creates a conclusive presumption that the signature
requirements for execution were met and a rebuttable presumption that other requirements,
such as compe tency of the testator, were met. Minn. Stat. § 524.3-406(b) (2018); In re
Estate of Zeno , 672 N.W.2d 574, 578 (Minn. App. 2003). The party challenging the
validity of a will bears the burden of proof. Minn. Stat. § 524.3-407 (2018).
I. The district court properly concluded that alleged violations of nursing-home
policy did not invalidate the will.

Allen claims that nurse Larson ’s failure to follow nursing -home regulations and
state and federal law by allowing non -immediate family member s to visit decedent
“tainted” and invalidated decedent’s will. We disagree.

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We review de novo Allen’s claim that the will is invalid as a matter of law due to
these visits. See Sullivan, 868 N.W.2d at 752. However, Allen does not cite to any legal
authority to support his theory that these visits violated any policy or law 4 or that such a
violation would invalidate a will. We therefore decline to address the issue. See State
Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).
Allen’s claim fails.
II. The district court did not clearly err by finding that decedent had testamentary
capacity.

Allen next argues that the district court did not have sufficient evidence on which
to base its determinat ion that decedent had testamentary capacity because of decedent’s
severe medical conditions and depression. We are not persuaded.
As an initial matter, Allen argues that the district court should not have allowed in
lay testimony from testator’s lawyer, banker, and nurse regarding decedent’s mental
capacity at the time he signed his will. Allen did not object to this testimony before the
district court. W e do not review evidentiary rulings on which a party failed to object in
district court and failed to make a motion for a new trial assign ing error to the ruling .
Sauter v. Wasemiller , 389 N.W.2d 200, 201 (Minn. 1986). We therefore do not address
this claim.

4 Allen provided a copy to the district court of the Federal Bill of Rights for Residents in
Medicare/Medicaid Certified Skilled Nursing F acilities or Nursing Facilities. The
document specifically provides for visitation rights according to a nursing-home resident’s
preferences, including visitation by family or friends. See Minn. Dep’t of Health, Federal
Bill of Rights for Residents in Medicare/Medicaid Certified Skilled Nursing Facilities or
Nursing Facilities (2019). Allen does not claim that decedent limited his visito rs to
immediate family members.

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We review a district court’s finding of testamentary capacity for clear error. In re
Estate of Torgersen, 711 N.W.2d 545, 550 (Minn. App. 2006), review denied (Minn. Jun.
20, 2006) . We view all evidence and inferences from the evidence in the light most
favorable to the district court ’s decision. Anderson, 384 N.W.2d at 520. District court
findings of testamentary capacity are final on appeal when the underlying evidence is
conflicting. In re Olson ’s Estate , 35 N.W.2d 439, 444 ( Minn. 1948). We give great
deference to findings based on credibility determinat ions. See Alam v. Chowdhury , 764
N.W.2d 86, 89 (Minn. App. 2009).
In determining testamentary capacity, we consider “(1) the reasonableness of the
property disposition; (2) the testator’s conduct within a reasonable time before and after
executing the will; (3) a prior adjudication of the testator’s mental capacity; and (4) expert
testimony about the testator’s physical and mental condition.” Torgersen, 711 N.W.2d at
552 (citing Anderson, 384 N.W.2d at 520). Less mental capacity is required to make a will
than is required to contract gene rally, “[a]nd even a person under a conservatorship may
have sufficient capacity to execute a will.” Id. at 554.
The district court considered these factors and found that decedent had testamentary
capacity. For the first factor, i t found credible Licari’s testimony that he spoke with
decedent about the terms of the will and that decedent confirmed that they met his wishes,
which showed that decedent knew of his property and could rationally distribute it . It
further found that decedent had previously i ndicated his desire to gift land to LMLC,
showing the reasonableness of the property distribution in his will. For the second factor,
it credited nurse Larson’s testimony that she would be a witness to one of her patient’s

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wills only if she believed they had the intent and capacity to execute a will. It also credited
Reinbold’s testimony that he notarized the will only after concluding that decedent had the
capacity to execute it. Neither Licari, nurse Larson, nor Reinbold had any pe cuniary
interest in the disposition of the will. The district court did not make findings on factors
three or four because they did not apply.
The district court did not find credible the testimony of nursing-home nurse Deneice
Stewart, the half-sister of Allen’s wife, who provided the only evidence in support of Allen.
It found that Stewart’s testimony that decedent lacked the ability to understand and respond
correctly at certain times of the day and that someone i n hospice or in a nursing home is
not physically or mentally able to sign a wil l was inconsistent with paperwork Stewart
completed about decedent and with other testimony about decedent during the same period.
It concluded that Allen did not prove that decedent lacked testamentary capacity.
Allen argues that the district court clearly erred because the substantial weight of
the evidence shows that decedent’s myriad physical ailments , including a possible coma,
stroke, and kidney failure, limited decedent’s mental capacity. Allen argues that the district
court therefore should have made findings about whether decedent had these conditions.
These arguments fail.
First, to the extent that Allen is challenging witness credibility, we defer to the
district court’s determinations. See Alam, 764 N.W.2d at 89. Second, while decedent’s
medical records indicate that he suffer ed from severe medical conditions, neither ho spital
nor nursing -home staff diagnosed him with any of the above conditions. Third, Allen
provides no legal authority for this proposition. Fourth, Allen misapplies the burden of

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proof on a self-proved will: respondents do not need to prove that a person with decedent’s
medical conditions can still have testamentary capacity. See Minn. Stat. § 524.3-407.
Rather, Allen had th e burden in the district court of persuading it that decedent lacked
testamentary capacity, see id., and his burden in this court is to show that the district court’s
finding of testamentary capacity is clearly erroneous. Torgersen, 711 N.W.2d at 550.
Decedent’s medical records also support the district court’s finding. Nurse Larson’s
evaluation indicated decedent could understand those around him and that he was not
cognitively impaired. Other health-care workers also completed medical records several
days before and after decedent executed his will indicating that he was alert and oriented.
This remained the case until he “decline[ed] quickly” on January 28, 2014, the day before
Allen’s only visit to decedent in the nursing home . None of decedent’s medical records
indicates that he had any cognitive, as opposed to physical, impairment when he signed his
will.
Finally, Allen argues that a person like decedent who is severely depressed lacks
testamentary capacity. But, as respondent’s counsel aptly noted, there is a difference
between mental capacity and mental health. Mental health does not determine testamentary
capacity, and Allen points to no cases that support that proposition. See, e.g., In re Healy’s
Estate, 68 N.W.2d 401, 403 (Minn. 1955); Torgersen, 711 N.W.2d at 552-54. The record
supports the district court’s finding that Allen failed to meet his burden of proving that
decedent lacked testamentary capacity. Therefore, the district court did not clearly err by
finding decedent’s will valid and allowing decedent’s estate to go to probate.
Affirmed.