In re the Estate of:

This opinion will be unpublished and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
A19-0290

In re the Estate of:

Richard John Keim, Deceased.

Filed September 23, 2019
Affirmed
Jesson, Judge

Mower County District Court
File No. 50-PR-18-52

Paul V. Sween, Morgan E. Carlson, Adams, Rizzi & Sween, P.A., Austin, Minnesota (for
appellant Gary A. Keim)

Anthony J. Moosbrugger, Moosbru gger Law Office, P.A., Kasson, M innesota (for
respondent Michael J. Keim)

Considered and decided by Jesson, Presiding Judge; Worke, Judg e; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After the district court concluded that decedent Richard Keim d ied without a will
and appointed respondent Michael Keim personal representative o f decedent’s estate,
appellant Gary Keim filed a motio n to vacate, alleging that he found Richard Keim’s
handwritten will. The district court denied appellant’s motion to vacate without holding
an evidentiary hearing, a decision appellant challenges. Becau se the Minnesota Rules of

2
Civil Procedure provide district courts with discretion to determine whether an evidentiary
hearing is required when deciding a motion to vacate—and the district court did not abuse
that discretion—we affirm.
FACTS
Three months after decedent Richard Keim died, his son—responde nt Michael
Keim—petitioned the district court for a formal determination that his father died without
a will. But decedent’s brother, appellant Gary Keim, objected to the petition, alleging that
he discovered a photocopy of the decedent’s typed, signed will from 2014. That alleged
will effectively disinherited both sons and granted most of the estate to appellant.
At an evidentiary hearing, appellant testified that he found the photocopy of the will
inside an open safe in a dumps ter at decedent’s home. Accordin g to appellant, he spoke
with decedent daily prior to his passing, and they discussed th e importance of having a
will. Further, appellant added that decedent did not have a good relationship with his sons.
Appellant also presented testim ony from decedent’s cousin and t he cousin’s wife.
They explained that, in 2014, they witnessed decedent sign a wi ll in their backyard. But
on cross-examination, the cousin testified that he had not seen decedent for over a decade
prior to the signing of the will. And neither witness could re member specific details
surrounding the will signing.
The district court concluded that because the alleged will was a photocopy and
because the original “was last se en in the decedent’s possessio n and cannot now be
located,” the 2014 document appellant presented had been revoke d. Further, the district
court found, at least implicitly , that testimony from appellant and the decedent’s cousin

3
and cousin’s wife was not credi ble. Accordingly, the district court granted respondent’s
petition and appointed him personal representative of the estate. Appellant did not appeal
this order.
Two months later, appellant filed a motion to vacate the district court’s order on the
basis that he discovered new evidence. That new evidence, he argues, is an original, signed,
handwritten copy of the alleged 2014 will that he found under s everal pounds of keys at
the bottom of the same safe that contained the typed copy of th e alleged 2014 will. In
support of his motion to vacate , appellant submitted affidavits from himself, decedent’s
cousin and cousin’s wife, and his attorney.1
The district court denied appellant’s motion to vacate. It did so without holding an
evidentiary hearing, relying instead “upon the credibility and legal determinations” made
in its previous order. Appellant appeals.2
D E C I S I O N
The central issue before us is w hether the district court erred by refusing to hold an
evidentiary hearing before deciding appellant’s motion to vacate pursuant to rule 60.02 of
the Minnesota Rules of Civil Procedure.3 Whether to grant rule 60.02 relief is committed

1 Although the cousin and his wife did not testify about a handwritten will during the earlier
evidentiary hearing, they indicated in their affidavits that th ey signed and witnessed two
documents—one handwritten and one typed—signed by decedent.
2 By order of a special term panel, this court previously determined that it has jurisdiction
over this appeal.
3 Respondent argues that appellant did not specifically request an evidentiary hearing in
his motion to vacate and should be “barred” from arguing that he was entitled to one. We
disagree. Both the motion itself and the memo in support of th e motion requested an
evidentiary hearing.

4
to the sound discretion of the district court and is based on all the surrounding facts of each
specific case. Gams v. Houghton, 884 N.W.2d 611, 620 (Minn. 2016). We do not reverse
a district court’s decision except for a clear abuse of discretion. Id.
In some contexts, evidentiary hearings are required or implied by statute. See, e.g.,
Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (stating that an evidentiary
hearing is required when a par ty seeking to modify a custody or der establishes a prima
facie case for modification). B ut the language of rule 60.02 d oes not state that district
courts must hold an evidentiary hearing before deciding a motion to vacate. Minn. R. Civ.
P. 60.02. In fact, the language of rule 60.02 does not mention an evidentiary hearing at all.
Id. Further, rule 43.05 of the Minnesota Rules of Civil Procedure provides that, in deciding
a motion based on facts not appearing in the record, the court may direct the matter be
heard on oral testimony, but it may also hear the matter purely on affidavits. As such, the
language in the Minnesota Rules of Civil Procedure is clear: wh en deciding a motion to
vacate, district courts are not r equired to hold an evidentiary hearing and have great
discretion in determining whether an evidentiary hearing is nec essary. See
Thompson v. Thompson, 739 N.W.2d 424, 430 (Minn. App. 2007) (explaining that it is
within the district court’s discretion to grant evidentiary hearings).
Here, the district court denied appellant’s motion to vacate wi thout an evidentiary
hearing, largely basing its decision on prior determinations that appellant and his witnesses
were not credible. District courts may properly deny an eviden tiary hearing when an
affidavit lacks “credible evidence.” In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).

5
And we defer to the district court’s credibility determinations . Sefkow v. Sefkow ,
427 N.W.2d 203, 210 (Minn. 1988).
Here, the record reflects that a ppellant was not forthcoming ab out his prior
conviction for theft-by-swindle, a crime involving dishonesty. Further, the district court
pointed to several oddities in pri or testimony from appellant’s witnesses, including the
cousin’s testimony that he had not seen decedent for over a decade before the will signing,
and the fact that neither the cousin nor his wife could remember any particulars surrounding
the signing of the will. Accordingly, the record supports the district court’s determination
that appellant and his witnesses were not credible. And becaus e the record supports the
district court’s credibility determinations, the district court di d no t a bus e t he di s c r e t i on
afforded to it by the Minnesota Rules of Civil Procedure by denying appellant’s motion to
vacate without an evidentiary hearing.
Affirmed.