In re the Estate of: Wade Scott Carlson, Deceased.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0957

In re the Estate of:
Wade Scott Carlson, Deceased.

Filed February 6, 2023
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-PA-PR-20-1060

Matthew P. Kostolnik, Sara E. Filo, Moss & Barnett, P.A., Minneapolis, Minnesota (for
appellant Brian T. Carlson)

Kim Ruckdaschel-Haley, Best & Flanagan L.L.P., Minneapolis, Minnesota (for respondent
Nancy E. Flatgard)

Considered and decided by Johnson, Presiding Judge; Segal , Chief Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Twelve years after his brother’s death, appellant petitioned the district court for the
appointment of a special administrator to investigate and pursue claims against his sister
for actions she may have taken years earlier while she was acting as attorney-in-fact for the
now-deceased brother. The district court denied the petition on the grounds that any causes
of action that a special administrator might possess are time-barred, that the deceased
brother’s will devised all of his property to the sister who acted as attorney-in-fact, and that
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the petition is barred by the doctrine of laches. We conclude that the district court did not
err by determining that the appointment of a special administrator is unnecessary. We also
conclude that the district court did not err by denying the appellant’s requests for an
accounting and an injunction. Therefore, we affirm.
FACTS
Wade Scott Carlson (who was known as Scott) died in August 2008 at the age of
66. He had no surviving parents, spouse, or children. He had two surviving siblings: Brian
T. Carlson, the appellant, and Nancy E. Flatgard, the respondent. For the sake of simplicity,
we will refer to the three siblings by their given names in this opinion.
From approximately 1970 until 2001, Scott actively managed a business that he
owned. In 2001, he owned three parcels of real property: a residential duplex on Fourteenth
Avenue South in Minneapolis, a commercial property on Hiawatha Avenue South in
Minneapolis (where his business was located), and a cabin in Vermont.
Scott lived in the upper level of the duplex, and his sister Nancy lived in the lower
level. The district court found that Scott and Nancy had a warm relationship. In contrast,
the district court found that Scott and Brian did not have a good relationship. To be
specific, the district court credited non-party testimony that Scott “detested” Brian.
In 1984, Scott executed a will that devised all of his property to Nancy, if she
survived him, and to his four nieces (Nancy’s two daughters and Brian’s two daughters) if
Nancy did not survive him. In addition, Scott’s will appointed Nancy executrix of the
estate. The 1984 will does not mention Brian. The evidence suggests that Scott’s relatives
were unaware of the 1984 will until this case was pending in the district court.
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In March 2001, Scott suffered a stroke. From that time forward, h e was unable to
manage his business. He also was unable to live independently in the duplex, and he moved
to a nursing home.
In April 2001 and May 2001, Scott signed two documents that purported to grant a
power of attorney to Nancy . The district court found that Scott did not have capacity to
sign the documents. Nonetheless, Nancy thereafter acted as Scott’s attorney-in-fact,
paying his bills and otherwise managing his affairs, without objection by Brian or any other
relative. In June 2001, Nancy transferred ownership of the duplex and the commercial
property to herself, and she began occupying both the upper and lower levels of the duplex.
In March 2004, Nancy sold the Vermont cabin and used the proceeds of $230,000 to pay
Scott’s expenses, which consisted primarily of the costs of his nursing care.
Scott died in August 2008. Neither Nancy nor any other person ever commenced a
probate action to administer his estate.
In June or July of 2020, Nancy’s health declined, and she moved to a nursing home.
In the following weeks, Brian had several conversations with Nancy about her estate plan.
In a pre-trial order, the district court found that Brian, a licensed attorney, was acting as
Nancy’s attorney in his conversations with her and in his correspondence with a law firm
from which Brian requested a copy of Nancy’s estate-planning file. The district court later
found that, at trial, Nancy displayed symptoms of dementia and memory loss and that her
testimony was sincere but not reliably accurate.
In August 2020—twelve years after Scott’ s death —Brian, while representing
himself, commenced this action by petitioning the district court for the appointment of
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himself as special administrator of Scott’s estate for the purpose of investigating Nancy’s
actions as attorney-in- fact between 2001 and 2008 and purs uing claims against her on
behalf of the estate. Brian also requested an accounting as well as an injunction preventing
Nancy from using or dissipating assets that Scott owned during his lifetime. Nancy
opposed the petition on the grounds that Scott’s estate may not be probated more than three
years after his death, that the statute of limitations for all causes of action against her have
expired, and that the petition is barred by the doctrine of laches.
Both Brian and Nancy alleged in 2020 that Scott died intestate. But in June 2021,
one of Nancy’s daughters found Scott’s 1984 will while she was cleaning the duplex. The
1984 will was filed with the district court administrator.
Before trial, the district court granted Nancy’s motion to disqualify Brian from
representing himself at trial on the ground that he has a conflict of interest arising from his
prior representation of Nancy in the months before he commenced the action. Brian then
retained an attorney, who represented him in further proceedings.
The case was tried to the district court on two days in October 2021. The district
court heard testimony from seven witnesses and received 25 exhibits into evidence. In
January 2022, the district court filed a 28-page order in which it denied all relief sought by
Brian. The district court concluded that it is unnecessary to appoint a special administrator
because Scott’s 1984 will devised all of his property to Nancy and because any causes of
action that a special administrator might assert against Nancy are now time-barred. In the
alternative, the district court concluded that Brian’s petition is barred by the doctrine of
laches. In addition, the district court denied Brian’s requests for an accounting and an
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injunction on the ground that the requests are moot. Brian moved for a new trial or, in the
alternative, amended findings. The district court denied most of the relief requested in
Brian’s post-trial motion, granted the motion in part by amending some findings of fact,
and ultimately denied Brian’s petition for essentially the same reasons as were stated in the
prior order. Brian appeals.
DECISION
I. Request for Special Administrator
Brian first argues that the district court erred by denying his request for the
appointment of a special administrator.
The applicable statute provides that a district court may appoint a special
administrator “on the petition of any interested person and finding . . . that appointment is
necessary to preserve the estate or to secure its proper administration including its
administration in circumstances where a general personal representative cannot or should
not act.” Minn. Stat. § 524.3-614(2) (2022) (emphasis added).
A. Relevance of 1984 Will
Brian’s argument has two parts. We first consider his argument that the district
court erred in the manner that it considered the 1984 will.
In its amended order, the district court relied on the following statute as the legal
basis for admitting the 1984 will into evidence:
Except as provided in section 524.3- 1201, to be
effective to prove the transfer of any property, to nominate an
executor or to exercise a power of appointment, a will must be
declared to be valid by an order of informal probate by the
registrar, or an adjudication of probate by the court in a formal
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proceeding or proceedings to determine descent, except that a
duly executed and unrevoked will which has not been probated
may be admitted as evidence of a devise if (1) no court
proceeding concerning the succession or administration of the
estate has occurred, and (2) either the devisee or the devisee’s
successors and assigns possessed the property devised in
accordance with the provisions of the will, or the property
devised was not possessed or claimed by anyone by virtue of
the decedent’ s title during the time period for testacy
proceedings.

Minn. Stat. § 524.3-102 (2022) (emphasis added). The district court reasoned that the 1984
will is valid, has not been revoked, and is relevant to prove that Scott made a devise to
Nancy.
Brian contends that the district court erred by effectively admitting the 1984 will
into probate and administering it, after the three-year period for commencing a probate
action had lapsed. In response, Nancy contends that the district court expressly stated that
it was not probating the 1984 will and that the district court properly considered the 1984
will because she relied on it in opposing Brian’s petition. Specifically, she sought to prove
that Scott did not die intestate and that she presently is properly in possession of assets that
Scott owned during his lifetime. Nancy contends further that the 1984 will is admissible
pursuant to the plain language of section 524.3-102. We apply a de novo standard of review
to the district court’s interpretation and application of the probate code. Laymon v.
Minnesota Premier Props., LLC, 913 N.W.2d 449, 452 (Minn. 2018).
The first part of section 524.3-102 states a general rule that a will may not be used
to prove the transfer of property unless it has been declared valid and adjudicated in a
probate proceeding. See Minn. Stat. § 524.3-102. But the general rule is followed by an
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exception, which is highlighted above with italics. See id. The exception allows a will to
be “admitted as evidence of a devise” if two prerequisites are satisfied: first, that there has
been no administration of the estate and, second, that “the devisee . . . possessed the
property devised in accordance with the provisions of the will.” Id. The district court
determined that the exception’s prerequisites are satisfied. On appeal, Brian does not argue
with specificity that either prerequisite is not satisfied. He contends only that the district
court invoked the exception “to sidestep the expired time bar for probating decedent’s 1984
will and award all assets to respondent, thereby treating it as a valid will in violation of
applicable probate rules.” To the contrary, the district court relied on the exception in the
statute for its very purpose: to allow “a duly executed and unrevoked will which has not
been probated” to be “admitted as evidence of a devise.” See id.
Brian cites only one opinion in support of his argument: Estate of Peterson, 579
N.W.2d 488 (Minn. App. 1998), rev. denied (Minn. Aug. 18, 1998). Brian quotes the
syllabus of the opinion, which states, “If a writing has not been admitted to probate as a
decedent’s will, the probate court has no authority to treat the writing as if it were a valid
will.” Id. at 489. The Peterson opinion does not support Brian’s argument. The appellant
in that case filed a claim against the decedent’s estate, in a probate action to administer the
estate, based on two purported contracts, which the district court found to be unenforceable.
Id. at 489-92. This court affirmed that ruling. Id. at 492. On appeal, the appellant made
an alternative argument that the purported contracts should be treated as valid wills. Id.
But in the district court, the documents had not been offered as valid wills and were not
admitted to probate as valid wills. Id. at 489-92. Furthermore, the district court had made
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a formal adjudication of intestacy. Id. at 492. The Peterson opinion does not cite section
524.3-102, but its conclusion with respect to the appellant’s alternative argument is
consistent with the statute’s general rule that a purported will cannot “prove the transfer of
any property” if it has not been declared valid in a probate proceeding. See Minn. Stat.
§ 524.3-102. The circumstances of that case are inconsistent with the statute’s exception,
which does not apply if a probate proceeding has occurred. See id. Accordingly, Peterson
does not establish that Scott’s 1984 will should not have been admitted into evidence
pursuant to the exception in section 524.3-102.
Thus, the district court did not err by admitting the 1984 will into evidence as
evidence of a devise pursuant to the exception in section 524.3-102.
B. Necessity of Special Administrator
We next consider Brian’s argument that the district court erred by concluding that
the appointment of a special administrator is not necessary.
As stated above, a district court may appoint a special administrator if “that
appointment is necessary to preserve the estate or to secure its proper administration.”
Minn. Stat. § 524.3-614(2). Because the statute uses the word “may,” the appointment of
a special administrator is a discretionary decision for the district court. See, e.g. , In re
Welfare of Children of J.D.T., 946 N.W.2d 321, 327-28 (Minn. 2020). Accordingly, we
apply an abuse-of-discretion standard of review. In re Estate of Martignacco, 689 N.W.2d
262, 269 (Minn. App. 2004) (reviewing district court’s appointment of personal
representative), rev. denied (Minn. Jan. 26, 2005).
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The district court determined that it was not necessary to appoint a special
administrator for two reasons. First, the district court reasoned that Nancy’s 2001 transfers
of Scott’s Minnesota real property to herself were consistent with the 1984 will, which
devised all of Scott’s property to her. Second, the district court reasoned that any causes
of action that a special administrator might assert against Nancy based on transfers that
were made as long as 19 years ago are now time-barred. The district court added that
appointing a special administrator would be time-consuming and expensive and would not
result in any benefit to any party.
On appeal, Brian does not challenge the first part of the district court’s reasoning,
that Nancy’s 2001 transfers of Scott’s property to herself are consistent with the 1984 will.
He challenges the second part of the district court’s reasoning by contending that the
district court “should not have engaged in a premature analysis ” of statute-of-limitations
issues but, rather, should allow a special administrator to commence claims against Nancy
and should resolve the statute-of-limitations issues if and when Nancy moves to dismiss
on that ground. Brian does not attempt to make any showing that the potential claims
against Nancy are not time-barred. He also does not attempt to dispute the district court’s
reasoning that appointing a special administrator would be time-consuming and expensive
without any benefit.
Brian’s argument fails to appreciate the statutory standard. A district court may
appoint a special administrator only if “that appointment is necessary to preserve the estate
or to secure its proper administration.” Minn. Stat. § 524.3-614(2) (emphasis added). The
circumstances provide ample justification for the district court’s discretionary decision to
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not appoint a special administrator. The district court appropriately reasoned that it would
be expensive to discover evidence relevant to transactions occurring as long ago as 2001,
especially in light of the district court’ s finding that Nancy now exhibits symptoms of
memory loss and dementia. The district court also reasoned appropriately that, even if
claims against Nancy are assumed to be valid, the result would be the same as the status
quo: she would be entitled to the property Scott owned during his lifetime. In short, the
appointment of a special administrator would not serve either of the purposes identified in
the statute.
Thus, the district court did not err by denying Brian’s petition for the appointment
of a special administrator.
We note that Brian also challenges the district court’s alternative conclusion that
Brian’s request for a special administrator is barred by the doctrine of laches. Because we
affirm the district court’s denial of the request on the merits, we need not consider the issue
of laches.
II. Requests for Accounting and Injunction
Brian also argues that the district court erred by not ordering an accounting and by
not enjoining Nancy from using or dissipating assets that Scott owned during his lifetime.
The district court resolved Brian’s requests for an accounting and an injunction in a
single paragraph by stating as follows: “Because the only valid will left everything to Ms.
Flatgard and there are no timely causes of action to rectify the financial abuse, the requests
for an injunction and accounting are denied as moot. Moreover, the statute of limitations
for an accounting has long since expired.”
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Brian does not cite any legal authority for his request for an injunction. His request
for an accounting is based on a statute providing that “any interested person . . . may
petition the court for a protective order directing an attorney-in -fact to provide an
accounting.” Minn. Stat. § 523.26(a) (2022). The statute does not provide any criteria to
guide a district court in ruling on a request for an accounting, and we are unaware of any
such criteria in caselaw.
For the same reasons that the district court did not err in denying Brian’s request for
a special administrator, the district court did not err in also denying Brian’s requests for an
accounting and an injunction. As stated above, further proceedings would serve no valid
purpose because a special administrator could not assert timely claims and because any
recovery would inevitably flow back to Nancy. The district court’s denial of Brian’s
request for a special administrator effectively concluded the proceeding, so there was no
reason to order an accounting or an injunction.
III. Motion for New Trial
Brian last argues that the district court erred by denying his motion for a new trial.
He seeks a new trial on the ground that the district court erred in denying his requests for
appointment of a special administrator, an accounting, and an injunction. For the reasons
stated above in parts I and II, we have concluded that the district court did not err in those
rulings. Thus, the district court did not err by denying Brian’s motion for a new trial.
Affirmed.