A20-0508

This opinion will be unpublished and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
A19-1596
A20-0508

In re the Estate of: Stanley George Zych, Deceased,

and

In the Matter of the Revocable Trust Agreement of
Stanley George Zych Dated May 23, 2013.

Filed September 14, 2020
Affirmed in part and reversed in part
Reyes, Judge

Big Stone County District Court
File No. 06-PR-17-224

Julian C. Zebot, Peter C. Hennigan, Maslon LLP, Minneapolis, Minnesota (for appellants)

Pamela A. Steckma n, Jonathan D. Wolf, Rinke Noonan, St. Cloud, Minnesota (for
respondents)

Considered and decided by Reyes, Presiding Judge; Frisch, Judge; and Kirk, Judge.*
U N P U B L I S H E D O P I N I O N
REYES, Judge
In these consolidated probate appeals , appellants argue that the record does not
support the district court’s findings that ( 1) decedent lacked testamentary capacity;
(2) decedent lacked mental capacity to make a gift; and (3) appellants unduly influenced

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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decedent. They also argue that (4) the district court judge should have recused; ( 5) the
district court abused its disc retion by holding appellants liable for responde nts’ and the
estate’s attorney fees; and (6) the district court erroneously relied on hearsay to find that
certain property is estate property. We affirm in part and reverse in part.
FACTS
After a diagnosis of Parkinson’s disease in the late 1980s, decedent Stanley George
Zych depended entirely on caregivers by 2008. Following the probate of his wife’s estate,
who had passed away in 2005 , decedent executed a will in 2007 that devised his estate to
his seven children, appellants Thomas Zych, James Zych, and Joyce Wilson and
respondents Wayne Zych, Dale Zych, Janet Zych, and Sandra Steffes.1 The parties do not
dispute the validity of the 2007 will.
Decedent’s estate included farmland worth approximately $3,840,000 in 2013, farm
equipment and stored grain, and certificates of deposit (CDs) worth $608,027.19 in 2009 .
The CDs had a value of approximately $85,000 when he passed away, due to Thomas and
Joyce transferring them into an investment account that lost approximately $189,000 and
cashing out some of them.
In his 2007 will , decedent gave his farmland to his four sons, Thomas, James,
Wayne, and Dale, who were all farmers . The will gave his CDs to his daughters, Joyce,
Janet, and Sandra, who were not farmers. It divided the estate residue equally among the

1 Because multiple appellants and respondents have the same last name, we use the first
names of appellants and respondents in subsequent references.

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children and nominated Larry Deutsch, the owner of a bank at which decedent had some
of his CDs and a checking account, as personal representative.
In 2013, decedent ex ecuted a new will and trust. A pproximately one month later,
he gifted land to each of his children except Wayne and Dale. The 2013 will disinherited
Wayne and Dale and gave the land that the 2007 will had devised to them instead to sisters
Joyce, Janet, and Sandra. It maintained the same real -property devises to Thomas and
James as the 2007 will . But with the 2013 land gifts, Thomas and James received their
farmland inheritance approximately four years earlier. The 2013 will also created a trust
for the estate residue, but it appointed Thomas and Joyce as trustees and co-personal
representatives.
Attorney Bill Leuthner (the attorney), drafted the 2013 will based on what appellants
told him and decedent’s head nods. Appellants and decedent met with the attorney twice
before decedent signed the will on May 23, 2013. Respondents were not present at these
meetings. Two unrelated individuals witnessed the will. Decedent passed away on Ma y
29, 2017, at the age of 96.
In November 2017, Janet petitioned to probate the 2007 will and identified Thomas,
James, and Joyce as respondents. Among other relief, she sought to void the 2013 will and
trust and the 2013 real-estate gifts. She also requested that respondents pay her attorney
fees and costs. Appellants objected and filed a responsive probate petition contending that
decedent revoked his 2007 will by executing the 2013 will. They requested that Janet pay
their attorney fees and costs.

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In July 2018, the district court appointed a n eutral third-party trustee and person al
representative (the neutral). The district court ultimately authorized him to obtain counsel
because appellants were not cooperating, which made it difficult for him to perform his
duties. The district court also granted certain injunctive relief and ordered appellants to
provide an accounting of decedent’s estate.
In November 2018, appellants moved for the district court judge to recuse himself
because the judge’s former law partner drafted decedent’s 2007 will. The district court
judge had informed the parties of this potential conflict at a n April 2018 hearing , and
neither party requested his recusal at that time . The district court held a hearing on
appellant’s motion and denied it.
Following a five-day trial in January and February 2019, the district court found that
decedent lacked capacity to execute both the 2013 will and trust and the 2013 land gifts
and that appellants unduly influenced him when he executed those documents.
In its order, t he district court described appellants’ demeanor as “markedly
different” from the generally “ straightforward manner ” in which respondents testified,
which caused the district court to “find [appellants] less credible.” It found the “in -court
evasions” of Thomas and Joyce “remarkable,” contribu ting to the length of the trial and
making them less believable. It found that Joyce “repeatedly refused to answer questions
directly, or evaded or deflected them ” and “made statements that were demonstrably not
true.” It stated that appellants’ out-of-court actions also affected its credibility finding ,
such as Joyce hiding assets and refusing to tell the neutral their location, James swearing
at and threatening physical violence to the neutral, Thomas makin g it “exceedingly

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difficult” for the neutral to access property, and all three failing to comply with an order to
repay funds to the estate. The district court also noted that t he neutral had to retain a
forensic accountant, Value Consulting Group (VCG), because appellants “misappropriated
and mishandled” decedent’s estate assets. It stated that witness demeanor is often a “fairly
neutral factor,” but that “[t]his case is a notable exception, and the Court found these factors
to be palpable and of significant assistance in its determination of disputed facts.”
The district court denied appellants’ petition to probate the 2013 will, admitted the
2007 will, and voided the quitclaim deed s for the real -estate gifts. It further found that
respondents had incurred $242,326.03 in attorney fees that “were reasonable and
appropriate under the circumstances” and f or the benefit of the estate. It held appellants
jointly and severally liable for the fees, less the yet -to-be-determined amount that an
uncontested probate would have required. It also held them liable for the fees and costs
incurred by the neutral in retaining VCG. It denied appellants’ reques t for attorney fees
and costs.
Appellants filed a notice of appeal. In an order filed October 29, 2019, a special -
term panel of this court determined that appellants prematurely challenged the award of
attorney fees and costs because the district court had not yet determined the award amounts.
We therefore dismissed the part of the appeal related to the awards.
In November 2018, the district court held a non -evidentiary hearing on the award
amounts and other matters. It found that respondents and the neutral would have spent
$31,000 on an uncontested probate of the 2007 will and therefore ordered appellants to pay
$211,326.03. It also determined ownership of certain assets, including the “Wilson trailer,”

6
which it found to be estate property. Appellant then appealed the award of attorney fees,
and this court consolidated that appeal with the remainder of the original appeal.
D E C I S I O N
I. The district court did not clearly err by finding that respondents met their
burden of showing that decedent lacked testamentary capacity.

Appellants argue that the district court’s finding that decedent lacked testamentary
capacity is clearly erroneous because the record does not support its underlying findings
that (1) decedent’s Parkinson’s obscured whether his head nods reflected assent or not and
(2) he suffered from dementia that prevented him from executing the 2013 documents. We
disagree.
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. June
20, 2006). We vie w the evidence and inferences from the evidence in the light most
favorable to the district court’s decision. In re Estate of Anderson, 384 N.W.2d 518, 520
(Minn. App. 1986) . Findings of fact are clearly erroneous only if we are “left with the
definite and firm conviction” that the district court has made a mistake. See In re Estate of
Moulton, 365 N.W.2d 335, 338 (Minn. App. 1985) . Even if we would have reached a
different conclusion on testamentary capacity had we first considered the matter, we do not
reverse if the evidence also supports the district court’s finding. In re Healy’s Estate , 68
N.W.2d 401, 403 ( Minn. 1955). We also give great deference to findings based on
credibility determinations. See Al am v. Chowdhury , 764 N.W.2d 86, 89 (Minn. App.
2009).

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Making a will or a revocable trust requires the same capacity. Minn. Stat.
§ 501C.0601 (2018). “Any person 18 or more years of age who is of sound mind may
make a will.” Minn. Stat. § 524.2-501 (2018). The party challenging a will must prove
that the testator lacked testamentary capacity. Minn. Stat. § 524.3-407 (2018).2
Testamentary capacity requires that a testator “understand the nature, situation, and
extent of his property and the claims of others on his bounty or his remembrance, and he
must be able to hold these things in his mind long enough to form a rational judgment
concerning them.” Healy, 68 N.W.2d at 403. In reviewing testamentary capacity, we
consider (1) whether the property disposition is reasonable; (2) decedent’s “conduct within
a reasonable time before and after executing the will; ” (3) any previous adjudication of
mental capacity; and (4) any “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). Making
a will requires less mental capacity than contracting generally, “[a]nd even a person under
a conservatorship may have sufficient capacity to execute a will.” Id. at 553-54.
The district court did not ex plicitly consider these factors, but i ts findings went to
the first two factors. Factors three and four do not apply here. Therefore, we review factors
one and two in turn.

2 Respondents argue that caselaw does not clearly assign this burden. But the caselaw they
cite placing the burden on the proponent of a will predates the 1974 enactment of Minn.
Stat. § 524.3-407, which places the burden on will contestants. See Minn. Laws ch. 442,
art. 3, pt. 4, at 1045; see, e.g., In re Jenks’ Estate, 189 N.W.2d 695, 698 (Minn. 1971); In
re Holden’s Estate, 113 N.W.2d 87, 91 (Minn. 1962). To the extent caselaw predating the
enactment of Minn. Stat. § 524.3 -407 is contrary to that statute, we conclude that the
caselaw is now stale.

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A. Reasonableness of the property disposition

The district court found that Wayne and Dale were two of the four children who
farmed, and to treat them differently would be inconsistent with decedent’s past practices.
It found that decedent “was very fond of his younger sons Wayne and Dale” and that he
would ask his caregivers each day to drive to see Wayne and Dale. The district court
contrasted this with his relationship with Thomas and James, who decedent suspected were
stealing his crops and selling his equipment. It further found that decedent had made
provisions in his 2007 will to protect any inheritance for his children who were in
bankruptcy, but he made no such provisions in 2013 for the two who were in bankruptcy
then. The record supports these findings. For example, decedent’s son-in-law testified that
decedent described James as a “thief” and that decedent had expressed concern that James
was taking things from his farm. And decedent’s long-time tax preparer of 37 years
testified that decedent preferred the farming practices of Wayne and Dale.
Appellants argue that a “testator may make an unjust, unreasonable, and unfair will
if he chooses,” citing to In re Estate of Forsythe, 22 N.W.2d 19, 26 (Minn. 1946). While
true, Forsythe does not prevent a distri ct court from weighing the reasonableness of the
distribution in a will when assessing the testator’s competency to make a will, and
Torgersen, 711 N.W.2d at 552, directs it to do just that. Appellants also contend that
excluding Wayne and Dale is reasonable because they had received greater portions of land
than had their siblings from their mother’s estate. But decedent executed his 2007 will
after Wayne and Dale received their mother’s inheritance , and Thomas testified that
decedent created the 200 7 will specifically in connection with her passing and the

9
distribution of her estate. Decedent did not provide less for Wayne and Dale than his other
children in 2007. The record supports that the property disposition in the 2013 will is not
reasonable.
B. Testator’s conduct

The district court found that decedent had “steady cognitive decline starting in at
least 2008, and by 2013 he suffere d from significant dementia.” Because of limited
medical records from the time surrounding the 2013 will, the district court based its
findings on decedent’s medical records from 2008 to 2012 and 2015 and on witness
testimony about decedent’s ability to recall his property accurately and remember family
in 2013.
Decedent’s medical records support that he experienced declining mental capacity
over this period. In December 2008, decedent gave power of attorney to Thomas and Joyce
after sustaining two falls. At a doctor’s appointment that month, decedent replied that it
was 1990 when asked the year. The doctor’s notes relating to a knee replacement decedent
received in September 2009 stated that he did not know the day of the week. Following
two “freezing” episodes over a few days in August 2012, during which decedent could not
move or respond to stimulation, doctors diagnosed him with motor aphasia that prevented
him from using the muscles around h is mouth to speak coherently. The doctor’s notes
stated that “[h]e did not make an awful lot of sense verbally” and that his Parkinson’s
caused him to move his head and neck constantly. Decedent had no memory of his freezing
episodes, which occurred approximately monthly in 2012. By 2013, Joyce served as

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decedent’s primary caregiver. Joyce did not take decedent to the doctor for about two
years, from late 2012 to late 2014.
The doctor’s notes from an April 2015 appointment stated that decedent “has had
significant cognitive decline and I suspect he has a fairly significant dementia related to his
Parkinson disease.” The notes go on to state, “Regardin g cognitive difficulties, we did
discuss that he most likely does have dementia. We did discuss conside ration for doing
neuropsychologic testing, but I think that the patient is likely too demented to be able to
meaningfully participate in this therapy.” The examination records described decedent’s
“Judgment/Insight” as “Poor,” that he was “[o]riented to person, place (except floor), but
not time (except knows it is spring, but not month or year),” and that he had “[g]lobal
memory impairment.”
Testimony from several witnesses further supports the district court’s finding. For
example, Dale testified that decedent was “slowing down” in his mental abilities in 2009,
and that “[h]is sentences got very short. His questions got very short[]” by 2011. He
testified that , beginning in 2013, it was “very hard to carry on a conversation” with
decedent, and it was not clear if decedent understood or not. Wayne noticed dece dent’s
mental abilities decline in 2010, continuing in 2011 to 2012. Janet testified that in 2009,
“[i]t was hard to carry on a conver sation with [decedent]. He had —he had trouble
following you when you were talking about stuff.” She testified that, in 2010, he nodded
his head “quite a bit” during conversations and it was difficult to have a conversation with
him. Dale’s wife testified that, by 2010, decedent would call her the wrong name and that,
after 2013, he “sometimes didn’t recognize [her] .” Sandra testified that decedent had

11
stopped being conversant by 2012 and that sometimes while talking to him, he “would just
get . . . that clear staring look. Well, then you would just kind of stop and then I would try
again. And it was like he didn ’t remember what I was talking about the first time so [I
would] just try something else . . . .” Janet’s husband testified that d ecedent’s ability to
converse changed in 2012, when he would fal l asleep during conversations and “ask
questions that didn’t make any sense.”
Appellants nonetheless argue that the record does not support the district court ’s
findings, in large part because no medical expert testified. But medical-expert testimony
is neither necessary nor conclusive of testamentary capacity and “is merely evidence to be
weighed and considered by the trier of fact.” In re Congdon’s Estate , 309 N.W.2d 261,
267 (Minn. 1981). They further argue that the medical records show that decedent’s
Parkinson’s-related head movements were distinguishable from his affirmative head nods.
But Sandra testified that decedent’s head nods were “[n]ot really” a way of knowing that
he understood something. And the attorney testified that h e knew that decedent had
Parkinson’s and that parts of his body would shake or tremor, but he did not know t hat
Parkinson’s may cause a person’s head to nod. In addition, Thomas testified that, when
the attorney reviewed the will before decedent signed it, “I don’t believe that he read the—
read, you know, each paragraph off.” And the attorney testified that he did not recall
making eye contact with decedent when confirming the plan for his estate in the first
meeting.
Appellants in effect ask us to reweigh the evidence and to consider testimony that
the district court did not credit. But we review the district court’s findings for clear error,

12
see Torgersen, 711 N.W.2d at 550 , and we do not reweigh its credibility determinations,
Alam, 764 N.W.2d at 89 . In reviewing for clear error, we will not reverse a finding on
testamentary capacity if the record , even if conflicting, supports it. See In re Olson’s
Estate, 35 N.W.2d 439, 441 (Minn. 1948); see also Forsythe, 22 N.W.2d at 22-23 (stating
whether decedent’s “progressive deterioration of mind . . . le[ft] her bereft of testamentary
capacity” is fact question and affirming when evidence conflicting).
The record supports the district court’s finding s and does not leave us with a
“definite and firm conviction th at a mistake has been committed.” See Moulton, 365
N.W.2d at 338. The district court therefore did not clearly err by finding that decedent
lacked testamentary capacity to execute the 2013 will and trust.
II. The district court did not clearly err by finding that decedent lacked capacity
to make a gift.

Appellants argue that the district court clearly erred in finding that decedent lacked
capacity to make a gift because the record shows that he was of sound mind , and the gift
furthered his intent to have his land stay in the family. We disagree.
In contrast to the capacity required to execute a will, the capacity required to make
a gift is comparable to that required to contract. See In re Estate of Nordorf, 364 N.W.2d
877, 880 (Minn. App. 1985) (applying contractual standard rather than testamentary
standard to transfer of accounts from sol e to joint ownership); see also Krueger v. Zoch ,
173 N.W.2d 18, 20 (Minn. 1969). Because contracting requires a higher mental capacity
than executing a will, Torgersen, 711 N.W.2d at 55 3-54, making a gift also requires a
higher capacity than executing a will. Therefore, because we conclude that the district

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court did not clearly err by finding that decedent lacked testamentary capacity, it also did
not clearly err by finding that he lacked the capacity to make the 2013 real-estate gifts.
III. The district court did not clearly err by finding that appellants exercised undue
influence over decedent when he executed his 2013 estate plan.

Appellants argue that the district court clearly erred in finding that they exercised
undue influence over dece dent because the record does not support its findings that
(1) appellants pressured decedent to amend his estate plan; (2) decedent depended on Joyce
as his primary caregiver; and (3) there was “no objective reason” or “no discernable
reason” why Wayne and Dale did not receive land distributions in the 2013 will and trust.
We disagree.
Whether undue influence exists is a question of fact. In re Reay’s Estate, 81 N.W.2d
277, 282 (Minn. 1957). When evidence of undue influence is conflicting, the district
court’s findings are final on appeal. Olson, 35 N.W.2d at 444. A will contestant has the
burden of proving undue influence and must establish it by clear and convincing proof. In
re Estate of Rechtzigel , 385 N.W.2d 827, 832 (Minn. App. 1986). “Direct evidence of
undue influence is not required and is usually unobtainable because the influence is rarely
exercised openly in the presence of others. Therefore, the circumstantial evidence must be
sufficient to indicate undue influence.” In re Estate of Anderson , 379 N.W.2d 197, 200
(Minn. App. 1985) (citation omitted), review denied (Minn. Feb. 19, 1986). Important
factors in proving undue influence include (1) the influencing parties’ opportunity to exert
influence over the testator ; (2) the influencing parties’ active participation in the will
preparation; (3) a confidential relationship between the influencing parties and the testator;

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(4) disinheritance of parties who “probably would have been remembere d”; and ( 5) the
influencing parties’ persuading the testator to make the will. In re Estate of Ristau , 399
N.W.2d 101, 103-04 (Minn. App. 1987).
Evidence that the testator maintained a “strong -willed attitude” on matters
throughout the time of the will weighs against a finding of undue influence. In re Estate
of Olsen, 357 N.W.2d 407, 412 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985).
But “[a]n entire change from former testamentary intentions is a strong circumstance to
support a charge of un due influence.” Olson, 35 N.W.2d at 446. This is particularly so
when the beneficiary charged with exerting undue influence receives a “larger share” under
the change than he otherwise would have. Id. (quotation omitted). “[A]cts of evasion on
the part of the beneficiary sustaining the confidential relation” also support a finding of
undue influence. Id. at 445.
The district court found that appellants unduly influenced decedent. It again did not
refer to relevant legal s tandards, but its findings nonetheless align with several of the
factors from Ristau, 399 N.W.2d at 103-04. Relevant to the first and second factors, t he
district court found that appellants were in control of the 2013 estate planning and were
with decede nt and spoke on his behalf at all meetings with the attorney. It found that
“[decedent] never spoke during the meetings with [the attorney]. [He] simply nodded his
head at times when [the attorney] looked to him, which the lawyer interpreted as assent to
what had been said.” The record supports this and shows that decedent never talked to the
attorney alone. It also found that James “frequently would berate [decedent],” such as by
telling him, “You don’t understand what you are talking about!” The testimony of Dale,

15
Janet, and Wayne supports this. Regarding the third factor, it found that decedent “was
totally dependent on caregivers,” including Joyce by 2013, and that Joyce and Thomas had
power of attorney for decedent.
On the fourth factor, it found that the exclusion of Wayne and Dale from the 2013
will was not objectively reasonable. Appellants again argue that decedent had a
discernable reason to not give Wayne and Dale land distributions and that “[t]he fact that
not all children are treated equ ally under a will is insufficient grounds for finding undue
influence,” citing In re Mazanec’s Estate , 283 N.W. 745, 748 ( Minn. 1939). But
“[d]isinheritance of those who probably would have been remembered” is a permissible
and important factor for a cour t to consider. Ristau, 399 N.W.2d at 103 -04. And, as
discussed regarding testamentary capacity, the record supports the district court’s findings
that decedent looked favorably upon Wayne and Dale and that decedent reasonably would
have included them in his will, even after his wife’s 2005 real-estate devises to them.
Related to the second and fifth factors, it found that “Joyce told Dale’s wife,
Christine, that she did not like the fact [decedent] had willed his daughters CDs instead of
real estate. Jo yce said she was go ing to remedy this problem.” Christine’s testimony
supports this. The record also supports that appellants accessed decedent’s assets without
his consent and that they were evasive about doing so before decedent’s death and during
trial, supporting a finding of undue influence. See Olson, 35 N.W.2d at 445.
Appellants argue that the district court did not acknowledge the testimony of the
attorney or two non-family-member witnesses to the will, who testified that appellants did
not unduly influence decedent. But we do not reweigh the district court’s credibility

16
determinations. Alam, 764 N.W.2d at 89. Appellants also argue that decedent was strong-
willed, which the district court found. But being strong -willed weighs against undue
influence if it persists throughout the time of the will. Olsen, 357 N.W.2d at 412. There is
no evidence of decedent exercising his strong will during the period in which he signed the
2013 will. And the record supports that decedent was not alwa ys strong-willed. One of
his caregivers, Cindee Koll, testified that d ecedent would “get[] antsy” about wanting to
go cash checks and look at his CDs, and “he would g et really obsessive about it.” Koll
would send a text message to Joyce when decedent wou ld not switch from these topics,
and Joyce would call decedent, talk to him for 20 or 30 minutes, and decedent would not
bring up his finances again.
For these reasons, the dist rict court did not clearly err by finding that appellants
unduly influenced decedent. See id.
IV. The district court judge did not abuse his discretion by declining to recuse.

Appellants argue that the district court judge should have recused himself because
his former law partner drafted decedent’s 2007 will while they practiced together and that
he incorrectly applied the law to decide not to recuse. We disagree.
Respondents argue that appellants forfeited this issue. First, they cite to County of
Hennepin v. Bhakta, 922 N.W.2d 194, 197 (Minn. 2019), for the proposition that “[m]atters
of trial procedure, evidentiary rulings, and jury instructions occurring at trial are subject to
appellate review only if they are assigned as error in a motion for a new trial.” But they
cite to only nonprecedential decisions to argue that claims of judicial bias are matters of
trial procedure on which a party must bring a motion for a new trial. Respondents’

17
argument lacks precedential support. Second, they argue that appellants forfeited this issue
by not timely requesting the recusal. The district court judge advised the parties in April
2018 of the potential conflict and that they could raise the issue in the future. Appellants
initially did not express any concerns about recusal, but at the November 2018 hearing they
moved for recusal of the district court judge. Appellants fully briefed the issue to the
district court, the parties argued it before the district court, and the district court ruled on
it. Given this context, appellants did not forfeit their right to request recusal.
We review a district court’s decision to deny a recusal motion for an abuse of
discretion. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied
(Minn. Aug. 20, 1986). “A judge or judicial officer who has presided at a motion or other
proceeding . . . may not be removed except upon an affirmative showing that the judge or
judicial officer is disqualified under the Code of Judicial Conduct.” Minn. R. Civ. P. 63
.03. Rule 2.11(A)(5)(a) of the Minnesota Code of Judicial Conduct provides that “[a] judge
shall disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned, including” if “[t]he judge . . . was associated with a lawyer who
participated substantially as a lawyer in the matter during such association .” Whether
circumstances would cause an observer to question a judge’s impartiality is an objective
analysis. State v. Burrell, 743 N.W.2d 596, 601 (Minn. 2008).
The district court judge acknowledged appellants’ concerns but also explained that
he had ruled on many issues after the parties said they were not concerned about recusal.
Regarding the standard for recusing, he stated, “I need to avoid even the appearance of
impropriety and I need to disqualify if my impartiality might reasonably be questioned.”

18
Appellants point only to the partner’s drafting of the 2007 will as casting doubt on
the judge’s impartiality. But the parties did not dispute the validity of the 2007 will, and it
had no bearing on whether decedent had testamen tary capacity in 2013 or whether
appellants unduly influenced him. Neither party called the partner as a witness at trial .
These facts would not “cause a reasonable examiner to question the judge’s impartiality.”
Burrell, 743 N.W.2d at 601; see also McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn.
1984) (“[A] judge who feels able to preside fairly over the proceedings should not be
required to step down upon allegations of a party which themselves may be unfair or which
simply indicate dissatisfaction w ith the possible outcome of the litigation.”), superseded
by statute on other grounds, Minn. Stat. § 518.552, subd. 3 (1985).
Finally, a ppellants argue that the district court judge used the incorrect legal
standards when he stated that “I can disclose i t and then not disqualify,” and “I think it
might be prejudicial to the estate and to the parties for me to [recuse] at this point.” But he
then stated the correct standards. See Minn. Code of Jud. Conduct, 2.11(A)(5)(a) . He
ultimately determined that “I believe it is . . . too attenuated and so I am going to stay in
the case.” Appellants have not shown that the district court judge abused his discretion by
declining to recuse. See Carlson, 390 N.W.2d at 785.
V. The district court abuse d its discretion by holding appellants liable for
respondents’ and the estate’s attorney fees.

Appellants argue that no statute permits attorney -fee shifting to a will or trust
beneficiary under the circumstances here. We agree.

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We review a district court’s award of attorney fees for an abuse of discretion, In re
Stisser Grantor Tr ., 818 N.W.2d 495, 509 -10 (Minn. 2012) , as well as an order of
sanctions, see Collins v. Waconia Dodge, Inc. , 793 N.W.2d 142, 145 (Minn. App. 2011),
review denied (Minn. Mar. 15, 2011). “A district court abuses its discretion when its
decision is based on an erroneous view of the law or is inconsistent with the facts in the
record.” Stisser, 818 N.W.2d at 508. We follow the “American rule ” “that each party
bears [its] own attorney fees in the absence of a statutory or contractual exception.” In re
Trusteeship of Tr. of Williams , 631 N.W.2d 398, 409 (Minn. App. 2001) (quotation
omitted), review denied (Minn. Sept. 25, 2001).
Respondents argue that appellants forf eited this issue because they failed to argue
to the district court at the November 2019 hearing that it could not make them personally
liable for attorney fees. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But the
district court had already determined that appellants were liable for the fees, appellants had
appealed that determination, and we had dismissed that portion of the appeal because the
district court had not yet made a finding on the amount of the fees . Because the district
court had already determined the issue, appellants did not forfeit it by not arguing it there.
The district court did not state its basis for holding appellants liable for respondents’
attorney fees. Appellants argue that it abused its discretion if it implicitl y (1) relied on
statutes permitting reimbursement of attorney fees from an estate or trust , see Minn. Stat.
§§ 524.3-720, 501C.0709(a)(1), .1004 (2018); (2) relied on caselaw permitting trustees to
seek reimbursement from frivolous -litigant trust beneficiaries , see In re Tr. Created by
Hill, 499 N.W. 2d 475, 494 (Minn. App. 1993) , review denied (Minn. July 15, 1993) ; or

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(3) ordered the fees as “backdoor” sanctions without providing sufficient notice .
Respondents do not contest appellants’ ar guments on the first two potential bases for the
award, and we agree that neither applies. Instead, respondents counter that the fees served
as a sanction under Minn. Stat. § 549.211, subd. 4(b) (2018), Minn. R. Civ. P. 11.03, or the
district court’ s inherent powers, and that appellants had notice that respondents sought
attorney fees from the time respondents commenced the action.
A district court must provide a party with notice and an opportunity to respond
before imposing sanctions under Minn. Stat. § 549.211, subd. 4(b), Minn. R. Civ. P. 11.03,
or the district court’s inherent authority. See Minn. Stat. § 549.211, subd. 3 (requiring
“notice and a reasonable opportunity to respond”), 4(b) (stating district court must
“describ[e] the specific conduct that appears to violate subdivision 2 and direct[] . . . [the]
party to show cause why it has no t violated subdivision 2”); Minn. R. Civ. P. 11.03
(requiring the same); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123,
2136 (1991) (requiring due process in imposing sanction of attorney fees under inherent
powers and in making requis ite bad -faith finding); Buscher v. Montag Dev., Inc. , 770
N.W.2d 199, 210 (Minn. App. 2009) (stating due process “requires that the parties and
attorneys receive notice of such potential sanctions and a hearing” (quotation omitted)).
The district court her e awarded the attorney fees posttrial and did not provide
“notice and a reasonable opportunity to respond” or allow appellants to “show cause” about
why they did not violate Minn. Stat. § 549.211, subd. 2, or Minn. R. Civ. P. 11.02. It also
did not make findings on how appellants’ conduct violated Minn. Stat. § 549.211, subd. 2,
or Minn. R. Civ. P. 11.02. Because the district court did not follow the procedures that

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either Minn. Stat. § 549.211, subd. 4(b), or Minn. R. Civ. P. 11.03 requires, neither permits
its award of attorney fees.
Respondents argue that their 2017 probate petition provided this notice because they
asked for, among other relief, “[a]n order for [appellants] to pay for [r espondents’] costs
and attorney fees to the extent allowed by law .” But the district court, not respondents,
must make a finding of bad faith, provide notice, and hold a hearing before exercising its
inherent authority to impose a sanction of attorney fees. See Uselman, 464 N.W.2d at 143.
That did not occur here. Moreover, in their April 25, 2019 proposed order and the
memorandum supporting it, respondents requested only that the estate, not appellants, pay
their attorney fees. The district court abused its discretion by ordering appellants to pay
respondents’ and the estate’s attorney fees.
VI. The district court did not clearly err by finding that the Wilson trailer is estate
property.

Appellants argue that the district court erroneously relied on hearsay in a declaration
to find that the Wilson Trailer is estate property. We disagree.
“We presume that the person whose name appears on a vehicle’s certificate owns
the vehicle, but a party may rebut this presumption with extrinsic evidence.” See Welle v.
Prozinski, 258 N.W.2d 912, 915 -16 (Minn. 1977). Hearsay, which “is a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted,” is generally inadmissible. Minn. R. Evid. 801(c),
802. “The admissibility of evidence canno t be questioned for the first time on appeal.”
State v. Taylor, 133 N.W.2d 828, 832 (Minn. 1965).

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The parties agreed during the November 2019 hearing that the district court could
determine the issue of ownership of the Wilson trailer based on the declar ations of James
and Dale. The district court found Dale credible and that decedent purchased the trailer
from James in 2004 but James never signed the title over. It cited Minn. Stat. § 168A.10,
subd. 1 (2018), which places the duty of transferring titl e on the seller of a vehicle. It
therefore determined that the Wilson trailer is estate property.
Respondents argue that appellants waived this argument when they agreed that the
district court could make a finding about the trailer based on the declarations. Appellants
contend that, because the parties presented the declarations at a non -evidentiary hearing,
they did not need to make evidentiary objections, as the district court “should be perfectly
capable of weighing the probative value o f declarations containing hearsay testimony
and/or lacking in foundation.” But appellants cite to no legal authority that relieves them
of the obligation to object to inadmissible materials to preserve the objection for appeal.
By agreeing to have the district court consider both declarations, without objecting to their
contents, appellants waived their right to challenge the admissibility of the contents on
appeal. See Thiele, 425 N.W.2d at 582; Taylor, 133 N.W.2d at 832. The declarations
support the district court’s finding that decedent owned the trailer and that it is estate
property.
Affirmed in part and reversed in part.