In re ESTATE OF ANTON 731 N.W.2d 19 (2007) CASE BRIEF

In re ESTATE OF ANTON

731 N.W.2d 19 (2007)

NATURE OF THE CASE: The district court found that under the facts and circumstances presented, a bequest was adeemed. The court of appeals affirmed. Gretchen Coy appeal the resulted.

FACTS: Testator, Mary, married Herbert Anton, the father of Gretchen Coy. Gretchen, Mary's stepdaughter, deeded a piece of real property to her stepmother and father. Herbert and Mary built a duplex on the property. After the death of Herbert in 1976, Mary became the sole owner of the duplex property. In 1981, Mary executed a will. In the will, she bequeathed half of her interest in the duplex to Gretchen. The remaining half interest was bequeathed to her biological son, Robert Lewis. Mary bequeathed the remainder of her estate to Robert and her daughter, Nancy Ezarski. Mary was involved in a serious automobile accident. She lived in a series of nursing homes. Mary suffered from Huntington's Chorea, a malady that impacts the nervous system. Mary executed a durable power of attorney authorizing her daughter Nancy to manage her financial affairs. In 1998, Nancy and her mother discussed selling the family residence to provide her mother with necessary support. The staff at the nursing home advised Nancy that she should not discuss financial matters with her mother as it would exacerbate her condition and cause distress. There were no further discussions. Nancy began selling her mother's assets in order to pay her ongoing living expenses. Mary was generally aware her assets were being sold off to pay for her expenses. Her only concern was that she would have enough money to continue living at Green Hills. By 2003, the only asset remaining in Mary's estate was the duplex. Nancy listed the duplex property for sale. Nancy then received a call from Gretchen's son, who informed Nancy of the terms of Mary's will and told her she could not sell the duplex. Nancy contacted an attorney, who issued an opinion stating that Nancy had the power and authority to sell the duplex. Nancy was also informed that the trustee of the Harold L. Lewis Trust had the discretion to distribute the principal of the trust to Mary for her health, well-being, and maintenance. Nancy then contacted the trust officer at First National Bank to inquire about obtaining a loan from the trust. The bank preferred that all of Mary's assets be sold prior to invading the trust's principal. She sold the property on August 28, 2003. Mary was fading fast. She had 'periods of confusion' and that there was 'advanced dementia.' A letter to Nancy from the estate's attorney recalled Nancy's indication that Mary was not competent to handle her affairs at the time the sale of the duplex was being considered. At trial, however, Nancy testified that her mother was 'not incompetent' at the time of the duplex's sale. The net proceeds of the duplex's sale were $133,263. Nancy began to pay Mary's living expenses out of the proceeds. At the time of Mary's death, the remaining balance was $104,317.38. After Mary's death, Gretchen filed a claim with Mary's estate, asserting that she was entitled to $72,625 because of the specific bequest of the duplex in Mrs. Anton's 1986 will. Nancy, acting as executor of the estate, disallowed the claim. Gretchen then proceeded to file a claim in probate court. The estate argued that the specific bequest of the duplex had been adeemed by extinction because it was no longer in the estate. The district court entered an order denying Gretchen's claim. The district court determined that although Mary's mental abilities were diminishing over the last months of her life and by October 2003 she was suffering from dementia, by statute all acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence . . . have the same effect and inure to the benefit of and bind the principal and the principal's heirs, devisees and personal representatives as if the principal were alive, competent and not disabled. Gretchen appealed and the court of appeals affirmed. The court of appeals adopted the trial court's finding that the sale of the duplex was clearly a part of the testator's intent and plan. This appeal resulted.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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