In re the Estate of Adolph J. Wagner, 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This opinion will be unpublished and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
A20-0242

In re the Estate of
Adolph J. Wagner, Deceased,

and

In the Matter of:
The Revocable Trust Agreement of Adolph J. Wagner
dated May 17, 1994,
and The Adolph J. Wagner Revocable Trust
dated March 14, 2014.

Filed September 14, 2020
Affirmed
Bratvold, Judge

Douglas County District Court
File No. 21-PR-18-1515

Jonathan D. Wolf, Pamela A. Steckman, Rinke Noonan, St. Cloud, Minnesota (for
appellant)

Michael J. Dolan, Thornton, Dolan, Bowen, Klecker & Burkhammer, P.A., Alexandria,
Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges the district court’s denial of her petition for formal probate of
her stepfather’s 1994 will. Appellant argues that stepfather breached a 1994 contract to
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make mutual wills with appellant’s mother when, just before mother died in 2014,
stepfather unilaterally revoked the 1994 trust they had incorporated into their mutual wills
by reference. Appellant alternatively contends that the terms of her mother’s will revived
the 1994 trust. Because the 1994 trust provided both mother and stepfather the unilateral
right to revoke and amend the trust agreement “without the consent or participation of any
other person,” we conclude that stepfather did not breach the 1994 contract. We also
conclude that appellant’s other arguments lack merit. Thus, we affirm.
FACTS
Adolph Wagner and Janet Wagner married in March 1991. Both had children from
previous marriages and both owned pre marital assets. Adolph’s premarital property
included farmland and a residence. Janet’s premarital assets included funds from the sale
of a residence and retirement accounts. In May 1994, the couple executed four documents:
an agreement to execute mutual wills (1994 contract), two wills (individually, 1994 will,
or collectively, 1994 wills), and a revocable trust agreement (1994 trust). The 1994 contract
incorporated the 1994 wills by reference, and the 1994 wills, in turn, incorporated the 1994
trust by reference. As summarized by the district court, the 1994 wills contained mutual
promises to divide their estate residue and distribute one half to Adolph’s children and one
half to Janet’s children.
In 1996 and 2012, Adolph and Janet deeded real property into the 1994 trust. The
1994 trust provided, using language much like the 1994 wills, for equal distribution of the
“family share” among all of their children.
3
Janet fell ill. Ten days before she died, Adolph executed a document, “Revocation
of Trust,” dated January 17, 2014. About two months later, Adolph executed a second will
(2014 will) that revoked his 1994 will . Adolph also executed a deed and transferred the
real property held in the 1994 trust to himself . Adolph made “additional changes,”
apparently to deed his real property into the 2014 trust (2014 trust). We do not have the
2014 trust in the record, but the district court described Adolph’s 2014 estate plan as
including “only one of Janet’s children.”
Adolph passed away in July 2018. About one month later, appellant Deborah Farm,
Janet’s daughter, petitioned the district court for formal probate of Adolph’s 1994 will.
Respondents Laura Kluver and Mark Wagner, Adolph’s children, objected to Farm ’s
petition, asserting that Adolph had revoked the 1994 will. The parties stipulated to relevant
facts and submitted their arguments to the district court. For example, the parties stipulated
that Janet “did not consent to [ Adolph’s] purported Revocation of the 1994 Trust.” The
district court ordered additional submissions, including written final arguments and
proposed factual findings. The district court also received 11 exhibits.
In January 2020, the district court issued written findings of fact, conclusions of
law, and an order for judgment, denying Farm’s petition. The district court found the facts
summarized above. And the district court found that, in entering into the 1994 contract,
Adolph and Janet “intended that all of their respective children be included as beneficiaries,
receiving equal shares, regardless of which of them would predecease the other.” The
district court also determined that Farm had standing as an intended beneficiary under
Adolph’s 1994 will.
4
The district court then determined that the 1994 contract, wills, and trust were not
ambiguous and that the 1994 trust provided that it was unilaterally revocable by either
spouse before the other spouse died. From this, the district court concluded that Adolph
did not breach the 1994 contract when, in 2014, he validly revoked the 1994 trust and his
1994 will. Thus, the district court determined that Adolph’s 1994 will was not admissible
to probate and that the court had “no authority to take any action” on Janet Wagner’s estate.
This appeal follows.
D E C I S I O N
I. The district court did not err by denying Farm’s petition.

“An appellate court reviews a district court’s findings of fact concerning wills and
trusts under a clearly erroneous standard and reviews a district court’s conclusions of law
de novo.” In re Estate of Short, 933 N.W.2d 533, 537 (Minn. App. 2019); see also
Minn. R. Civ. P. 52.01 (limiting review of factual findings to clear error). The
interpretation of a will or trust agreement involves questions of law, like the interpretation
of a contract, and therefore receives de novo review. Concordia Coll. Corp. of Moorhead,
Minn. v. Salvation Army, Verona, N.J., 470 N.W.2d 542, 546 (Minn. App. 1991) (de novo
review of interpretation of will and contract to will), review denied (Minn. Aug. 2, 1991);
Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 832 (Minn. 2012) (de novo
review of interpretation of contract).
Farm makes two alternative arguments: first, that Adolph breached the 1994
contract when he revoked the 1994 trust in 2014, and, second, that even if Adolph validly
5
revoked the 1994 trust, Janet’s 1994 will revived the 1994 trust. We address each argument
in turn.
A. Breach of the 1994 contract

Farm argues that Adolph breached the 1994 contract because he “renounced”
Janet’s 1994 will by unilaterally revoking the 1994 trust and executing the 2014 will and
2014 trust. According to Farm, “renouncing the Trust is renouncing the Will.” Farm asserts
that “[n]o contract is unilaterally revocable.” Farm also maintains that the 1994 contract
evidences that Janet and Adolph “intended that their children be included as beneficiaries
in one another’s respective estate plans” and urges that “those intentions should be
enforced.”
Respondents counter that the language of the 1994 trust unambiguously granted
Janet and Adolph the right to unilaterally revoke or am end the trust without the other’s
consent. Respondents assert that “since the agreement of the parties included the unilateral
right to revoke, the contract to devise could not be irrevocable” and that Adolph validly
exercised his right to revoke the 1994 trust in 2014.
Under Minnesota law, “[p]arties can contract to make wills” and such testamentary
contracts are enforceable “if there is sufficient consideration.” Concordia Coll.,
470 N.W.2d at 546. A contract to “make a will” or “not to revoke a will” may be shown
by “a writing signed by the decedent.” Minn. Stat. § 524.2-514 (2018).1 Such a contract

1 By statute, testamentary contracts may be shown in one of three ways: (1) a will that
states “material provisions of the contract,” (2) “an express reference in a will to a contract
and extrinsic evidence proving the terms of the contract,” or (3) through “a writing signed
by the decedent evidencing the contract.” Minn. Stat. § 524.2-514.
6
must be established by “clear and convincing evidence.” Olesen v. Manty, 438 N.W.2d
404, 407 (Minn. App. 1989) (stating that petitioners must prove existence of a contract to
will by “clear, positive, and convincing evidence”).
Here, the district court determined that Farm offered sufficient proof to establish the
existence of the 1994 contract by “clear and convincing evidence.” The district court also
determined that the 1994 contract “was satisfied when the parties executed Wills (and a
Trust) in 1994.” On appeal, Farm does not dispute that the 1994 wills and the 1994 trust
satisfied the 1994 contract; she disputes, however, whether Adolph had the right to
unilaterally revoke the 1994 trust incorporated into the 1994 wills. Farm claims that doing
so breached the 1994 contract.
Generally, Minnesota law provides that a settlor may unilaterally revoke a trust
when the express terms so provide, even if the trust was created by more than one settlor.
See Minn. Stat. § 501C.0602(a)-(b) (2018); Thomas B. Olson & Assocs., P.A. v. Leffert,
Jay & Polglaze, P.A., 756 N.W.2d 907, 917 (Minn. App. 2008) (stating settlor may revoke
trust when express terms reserve the right to revoke), review denied (Minn. Jan. 20, 2009).
But we agree with Farm that it is not enough to examine the terms of the 1994 trust in
isolation. Because the parties executed the 1994 trust along with the 1994 contract and the
1994 wills, we consider the terms of all four instruments. See Concordia Coll., 470 N.W.2d
at 547 (providing wills and a contract to will “must be read as a whole”). In interpreting
each instrument, we give the language “its plain and ordinary meaning.” Id.
7
We begin with the 1994 contract , which includes an “explanatory statement” that
describes its purpose, as follows: (1) for Adolph “to agree to make a will” and “to agree to
the wife’s will wherein her estate will be left to their children”; and (2) for Janet “to agree
to the provisions of her husband’s Will.” The 1994 contract also explains, “It is the desire
[of the parties] to execute Wills, satisfactory to both. It is [our] further intention that, in the
event the wife predeceases her husband, her estate will be held in tr ust for the benefit of
their children.”
By executing the 1994 contract, Adolph and Janet made three central promises
relevant to this appeal:
1. [Adolph] agrees to make a Will providing for his assets
to go to [the 1994] trust.

. . .

3. [Janet] agrees to make a Will leaving her estate to [the
1994] trust.

. . .

5. Both parties agree not to renounce the other’s Will and
expressly waive all dower, legal and other interest in the
other’s estate.

The 1994 contract also incorporates the 1994 wills by reference.
The 1994 wills include mutual promises to devise all personal property to the
surviving spouse, and upon the surviving spouse’s death, to their children “in equal
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shares.”2 The 1994 wills also mutually promise to give the estate residue to the 1994 trust,
which is incorporated by reference.3
The 1994 trust has three key provisions at issue on appeal. First, the 1994 trust
provides that Janet and Adolph, as settlors and trustees, have certain enumerated rights “to
be exercised (except as otherwise specified) without the consent or participation of any
other person.” One enumerated right is “[t]o amend, in whole or in part, or to revoke this
agreement by a written instrument executed by either of us.” (Emphasis added.)
Second, the 1994 trust provides that, after the death of either spouse, the “trust
assets, including all property that becomes distributable to the trustees at death, not
effectively disposed of under [] this agreement, shall be allocated between the Marital and
Family Shares.” The trust also provides that “[t]he Marital Share shall consist of 50% of
the assets selected by the trustees.”
Third, the 1994 trust specifies that the remaining 50% of the trust assets “shall
constitute the Family Share.” The trust states, “[i] f either [Janet or Adolph] survives, the
Family Share shall be irrevocable.” (Emphasis added.) The trust directs the family s hare
be distributed accordingly—“10% to the children of the deceased settlor”; the “income to

2 For example, art icle two of Adolph’s 1994 will, entitled “Special Gifts,” devises all
“tangible personal property” to Janet or, if Janet predeceased Adolph, then to Adolph’s
children and Janet’s children “in equal shares.”

3 For example, article three of Adolph’s 1994 will states that his estate residue goes to the
1994 trust, which is incorporated by reference, and directs that the residue be “disposed of
as a part of the remaining assets of that trust.” Article three also provides that 50% of any
residue not effectively disposed will be given to Adolph’s children in equal shares and 50%
is given to Janet’s children in equal shares.
9
the surviving spouse”; and, among other things, that “all the remaining trust assets” of the
family share be distributed “equally to the children of the first deceased settlor, per stirpes.”
The central dispute on appeal is whether Adolph had the right to unilaterally
revoke the 1994 trust before Janet’s death absent her consent. The district court first
determined that the 1994 documents were not ambiguous. No party contends otherwise on
appeal and we agree. The district court next determined that “[t]he unambiguous language
of the [1994 trust] specifically provides for revocation by either [Adolph] or [Janet],
without consent, approval or knowledge of the revocation by either of them.” We agree
with the district court’s interpretation of the plain language of the 1994 trust. In fact, the
1994 trust bears the title, “Revocable Trust Agreement.” (Emphasis added.) But most
importantly, the 1994 trust grants both Janet and Adolph the right to revoke the trust
“without the consent or participation of any other person.” While the 1994 trust also
provides that the family share becomes irrevocable after the death of one spouse, this does
not affect Adolph’s 2014 revocation because Janet was alive when he executed the written
revocation. Thus, under the 2014 trust, Adolph had the unilateral right to revoke the trust
before Janet died.
Neither the 1994 contract nor the 1994 wills disturb Adolph’s right to unilaterally
revoke the 1994 trust before Janet’s death. The 1994 contract does not mention revocability
of the 1994 wills or the 1994 trust. And the 1994 wills do not state that either instrument is
irrevocable. In this respect, the grounds for Farm’s petition are distinguishable from those
considered by this court in Concordia College because, there, the decedents executed a
promise that “neither party will revoke or change the Will.” 470 N.W.2d at 547 ; see also
10
Olesen, 438 N.W.2d at 408 (assuming contract to will existed and determining appellant
failed to prove wills were irrevocable because “[n]o express mention of an intent not to
revoke is contained in any of appellant’s documents”). Janet and Adolph made no mutual
promise not to revoke the 1994 wills or the 1994 trust.
We are not persuaded by Farm’s argument that the 1994 contract to will is
“irrevocable” under Jannetta v. Jannetta, 285 N.W. 619, 622 (Minn. 1939). First, while
Farm’s brief accurately quotes from Jannetta, the revocability of the 1994 contract is not
at issue. Farm’s petition rests on her claims that the 1994 trust was irrevocable. But the
1994 trust was unilaterally revocable by Adolph before Janet died for the reasons already
discussed.4
Second, if Farm is claiming that Jannetta means the 1994 wills executed in
compliance with the 1994 contract were therefore irrevocable, we disagree. Minnesota
Statute authorizing contracts to will specifically provide that “[t]he execution of a joint will
or mutual wills does not create a presumption of a contract not to revoke the will or wills.”
Minn. Stat. § 524.2- 514; see also Olesen, 438 N.W.2d at 408 (to prove a contract not to
revoke a will, petitioner must satisfy statute). Indeed, Minnesota law provides that a will

4 Farm also maintains that “[t]he district court should be reversed on its finding that the
contract to will and the Wills and Trust incorporated into it had to specifically say that it
was irrevocable for it to be binding.” We reject Farm’s argument, which appears to be that
the district court failed to enforce the 1994 contract. The district court determined that Farm
had to prove by clear and convincing evidence that the 1994 contract provided that the
1994 wills “would not be revoked.” This ruling is supported by the record and Minn. Stat.
§ 524.2-514. And the district court found that Farm did not meet this burden. We disagree
with the notion that the district court, therefore, held the 1994 contract was not binding or
unenforceable. Rather, the district court determined that the 1994 contract did not provide
that the 1994 wills and the 1994 trust were irrevocable “while both settlors are alive.”
11
may be revoked by adopting a new will that expressly revokes the previous will.
Minn. Stat. § 524.2-507(a)(1) (2018) (stating that a will is revoked “by executing a
subsequent will that revokes the previous will”).
Still, Farm insists we must view Adolph’s right to revoke the 1994 trust in tandem
with Janet’s and Adolph’s promise “not to renounce the other’s Will,” as stated in the 1994
contract. Farm contends that Adolph’s unilateral revocation of the 1994 trust is equivalent
to “renouncing” Janet’s 1994 will because, by revoking the 1994 trust, Adolph
circumvented the provisions in Janet’s 1994 will that provided the residue of her estate
would pour over to the 1994 trust.
We question Farm’s interpretation of the term “renounce,” as used in the 1994
contract. Because the term is not defined in the 1994 contract, we consider whether it has
a specialized meaning, and also consider its common meaning by reference to a dictionary.
301 Clifton Place L.L.C. v. 301 Clifton Place Condo. Ass’n, 783 N.W.2d 551, 565 (Minn.
App. 2010) (stating that “we may afford certain trade or special words their trade or special
meaning” in limited circumstances but we otherwise apply the “plain and ordinary meaning
of a contract word or phrase” (quotation omitted)). Courts have held that a spouse has a
right to renounce the will of a predeceasing spouse and choose an elective share under the
statute. See, e.g., In re Taylor’s Estate , 7 N.W.2d 320, 321-2 2 (Minn. 1942) (“The law
presumes that the testator made his will with knowledge of the widow’s right to
renounce.”); In re Estate of Kueber, 390 N.W.2d 22, 24-25 (Minn. App. 1986) (affirming
judgment granting estranged spouse’s petition to renounce will and elect statutory share);
see also Minn. Stat. § 524.2-202(a) (2018) (“The surviving spouse of a decedent who dies
12
domiciled in this state has a right of election” as provided by statute). Adolph did not
renounce Janet’s will under this specialized meaning of the word.
But even if we apply a more generalized meaning of “renounce,” Farm’s argument
remains unpersuasive. By definition, renounce means to “give up,” “abandon formally,”
“disclaim,” or to “decline to recognize or observe” something. Black’s Law Dictionary
1551 (11th ed. 2019). Adolph did not give up, formally abandon, disclaim , or decline to
recognize Janet’s will. He availed himself of a right provided for in the 1994 trust
agreement, which was incorporated into Janet’s 1994 will. Thus, Adolph did not
“renounce” Janet’s 1994 will.
Farm also contends that the district court made a clearly erroneous finding by stating
that Janet may have consented to the revocation, and that this finding conflicts with the
stipulated facts in the record. The district court stated:
[Adolph’s] revocation of the Revocable Trust may have been
sneaky and underhanded, flying in the face of Janet Wagner’s
wishes, or, it may have been exactly what Janet Wagner wished
to happe[n] based on her conversations with [Adolph] during
her last days. [Adolph’s] motivations are lost with his passing,
just as Janet Wagner’s wishes died with her. However, their
motivations do not matter.

Farm mischaracterizes the district court’s point. The district court did not reject the parties’
stipulation that Janet did not consent to revoke the 1994 trust. Rather, the district court
recognized that the 1994 trust reserved to both parties the unilateral right to revoke before
the other’s death—therefore, it is irrelevant whether Adolph’s revocation was “sneaky and
underhanded” or done relying on conversations with Janet “during her last days.” In other
words, because Janet’s consent to revoke was not required by the 1994 trust, it is irrelevant
13
whether she in fact consented to the revocation. We agree with the district court that,
whatever his reasons for doing so, Adolph validly revoked the 1994 trust in 2014 and thus
did not breach the 1994 contract.5
B. Revival of the 1994 trust

Farm argues that the district court failed to recognize that a provision of Janet’s
1994 will revived the 1994 trust by “operation of law” at the time of her death. Thus, Farm
asserts that when Adolph deeded property out of the 1994 trust to himself in 2014, and later
to the 2014 trust, Adolph breached his fiduciary duty owed to the 1994 trust beneficiaries.
Respondents contend that because this case arises from a petition to probate Adolph’s 1994
will, issues concerning the distribution of assets under Janet’s 1994 will were not properly
before the district court. The district court agreed by concluding, “This Court has no
authority to take any action in regard to the Estate of Janet Wagner in this proceeding.” On
appeal, Farm responds by clarifying that her arguments are “not about probating [Janet]’s
estate, or about any power [Janet] had.” Farm maintains that her argument is about the
power of the district court, and this court, to “hold [Adolph] to the promises [he] made.”

5 Farm also asserts that when Adolph created the 2014 trust “he made it for an unlawful
purpose contrary to public policy,” see Minn. Stat. § 501C.0404 (2018), and claims that
unlawful purpose was “to circumvent the irrevocability of the Family Share of the 1994
trust, and to attempt to breach the [1994 contract].” But she cites no legal authority to
support her position. We will not consider an argument submitted without legal authority.
See, e.g., In re Estate of Grote, 766 N.W.2d 82, 88 (Minn. App. 2009) (“This court declines
to address allegations unsupported by legal analysis or citation.”); Minn. R. Civ. App. P.
128.02, subd. 1(d) (providing that appellant’s brief “shall include” arguments on each issue
consisting of “analyses,” and “citations to the authorities”).
14
Given our determination that Adolph did not breach the 1994 contract when he
validly revoked the 1994 trust, Farm ’s argument on the revival of the 1994 trust cannot
prevail. We begin by considering the specific terms of Janet’s 1994 will that Farm contends
revive the 1994 trust.
Janet’s 1994 will provides, “If [the 1994 trust] is not in existence at my death, or if
said gift to the trustees is ineffective” then Adolph will be appointed as trustee and any
gifts “not effectively disposed of” by her will be distributed in accordance with the
provisions of the 1994 trust “as if said trust agreement were set forth in full in this will.”
We disagree that this provision revives the 1994 trust, for three reasons. First, this passage
from Janet’s 1994 will (which mirrors Adolph’s 1994 will) implicitly acknowledges that
the 1994 trust is revocable before the death of either spouse because it recognizes that the
1994 trust may not be “in existence at my death.”
Second, nowhere in this passage does it state that the 1994 trust is “revived.” Rather,
it states that the residue of Janet’s estate will be distributed as directed by the 1994 trust
“as if” the 1994 trust “were set forth in full in this will.” If Farm seeks to enforce this
provision of Janet’s will as a new testamentary trust, then the district court was correct—it
lacked the authority to “take any action” on Janet’s estate. This action relates only to
Adolph’s estate.
Third, even if we assume that the 1994 trust somehow revived upon Janet’s death
through this provision, we reject Farm’s argument that Adolph breached his fiduciary duty
to the 1994 trust beneficiaries by deeding the real property held by the 1994 trust to himself
and later to the 2014 trust. W e agree with the district court’s reasoning that the 1994 trust
15
“contains no provision prohibiting either settlor [] from amending the trust with regard to
that portion of the trust property attributed to his or her contribution.” In fact, the 1994 trust
provides that Adolph and Janet had the right to unilaterally “amend, in whole or in part,”
the terms of the trust. Thus, Adolph exercised his right to amend the 1994 trust by deeding
real property out of the 1994 trust after its valid revocation.6
In sum, the district court appropriately found that Adolph’s revocation of the 1994
trust was “not fair [because] only one of [Janet]’s children was included in the later estate
plan of [Adolph].” Yet, as the district court explained, Minnesota law recognizes that
“[p]eople are free to dispose of their property, both real and personal, as they desire,
regardless of the wishes of family (to whom the property does not belong).” W e conclude
that Adolph validly revoked the 1994 trust in 2014 and did not breach the 1994 contract in
doing so. We see no basis on which Farm can sustain her claim and the district court
properly denied her petition.
Affirmed.

6 Farm contends that “the trial court had no authority to issue an order giving the trustee
power which the trustee would not otherwise have,” citing Govern v. Hall, 430 N.W.2d
874, 878 (Minn. App. 1988), review denied (Minn. Jan. 9, 1989). While this is an accurate
quote from Govern, Farm’s point is not well taken because the trust agreement in Govern
specifically directed the trustee to give the disputed property to the trust beneficiaries upon
termination of the trust. Id. at 878. We have no similar direction in the 1994 trust.