North Dakota Supreme Court: Doctrine of Partial Invalidity Survived Adoption of Uniform Probate Code In North Dakota

The doctrine of partial invalidity allows a court to separate out a portion of a will that is the product of undue influence from other, valid portions of a will.  The North Dakota Supreme Court, in Estate of Grenz, determined that the doctrine of partial invalidity still applies in North Carolina after adoption of the Uniform Probate Code, and upheld the district court’s decision partially invalidating the will and giving effect to a contingent distribution clause.

The Facts of Estate of Grenz

Leo died testate (with a will).  Kelly is Leo’s son from Leo’s second marriage, which lasted over 40 years.  Leo had three children from his first wife: Donavin, David, and Lee.  Leo was survived by his second wife, Sally, and all of his children.  Sally died during the proceedings, and Kelly replaced Sally as personal representative of Leo’s estate. The will disposes of Leo’s estate through the residuary clause, including the shares he owned in JT Ranch.  The residuary clause provides:   ARTICLE FIVE. RESIDUE.

1. Surviving Spouse. I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my spouse, Sally Grenz, if she shall survive me.
2. Children. In the event that my spouse does not survive me, I make the following bequests:

(1) I give and devise an undivided one-third of my stock in JT Ranch, Inc., to each of my sons, namely, Donavin Grenz, David Grenz and Kelly Grenz. (2) I give and devise to my daughter, Leatta Horner, the sum of $10,000.00. (3) I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my son and daughter-in-law, Kelly Grenz and Kelley Grenz, in equal shares.   The will was admitted to probate.  Donavin and David (Leo’s sons from his first marriage), objected to the probate, arguing that Leo intended to devise his ownership in JT Ranch to them but he was unduly influenced not to do so by Sally and Kelly. The district court found that Leo’s intent was for the ranch shares to go to David and Donavin, based upon consistent statements over many years made to several people.  The court also found that Leo was suffering from Parkinson’s disease and declining memory when he executed the will, and that Sally and Kelly isolated Leo from his other family members.  Sally and Kelly also transported Leo to appointments with the lawyer who drafted the will, which they also attended. The court ordered portions of the will’s residuary clause to be struck to the extent they devised the JT Ranch shares to Sally and Kelly.  The court gave effect to a portion of the contingent distribution clause that favored Donavin and David and ordered the JT Ranch shares be distributed to them. Kelly appealed, arguing that the district court improperly rewrote Leo’s will.  Kelly did not challenge the finding regarding Leo’s testamentary intent or the finding that Sally and Kelly exercised undue influence, nor the court’s decision to partially invalidate the will.  Instead, Kelly argued that the will did not effectively dispose of the JT Ranch shares, and claimed that the shares should be distributed according to intestate succession.

What Is the Doctrine of Partial Invalidity In A Will Contest?

The doctrine of partial invalidity allows a court to separate a portion of a will that is the product of undue influence from other portions of the will that are valid:

[T]he great majority of American jurisdictions have endorsed the view that where a part of a testamentary instrument is shown to have been the result of undue influence and therefore not the testator’s will, other portions of the instrument may nevertheless be given effect, at least if such other portions are separable from the concededly invalid ones.  Alan R. Gilbert, Annotation, Partial Invalidity of a Will, 64 A.L.R.3d 261 (1975). Courts do not apply the doctrine when it will “defeat the manifest intent of the testator, interfere with the general scheme of distribution, or work an injustice to other heirs.” 79 Am. Jur. 2d Wills § 357 (2d ed. 2020). See also Estate of Lloyd, 189 N.W.2d 515, 520 (S.D. 1971).

Is The Doctrine of Partial Invalidity Available Under North Dakota Law?

The North Dakota Supreme Court considered whether the doctrine of partial invalidity is still viable in North Dakota after the adoption of the Uniform Probate Code.  Although North Dakota's common law recognizes the doctrine of partial invalidity, “there is no common law in any case in which the law is declared by the code.” N.D.C.C. § 1-01-06. The Uniform Probate Code now governs probate proceedings in North Dakota.  North Dakota’s Uniform Probate Code is silent on the issue of whether it supplanted the prior common law rule of partial invalidity. The North Dakota Supreme Court examined how South Dakota addressed the issue.  In a South Dakota Case, Estate of O’Keefe, 1998 SD 92, 583 N.W. 2d 138, wrongdoers claimed that South Dakota’s adoption of the Uniform Probate Code foreclosed the equitable power of courts sitting in probate, and determined that rules of equity supplement the Uniform Probate Code where it is silent. The North Dakota Supreme Court, following the lead of South Dakota, and also North Dakota’s principle of law that “a wrongdoer may not take advantage of his own wrong against the victim of his wrongdoing,” concluded that the doctrine  of  partial  invalidity  is  an  available  remedy  under North Dakota law.  The North Dakota Supreme Court stated:

It is part of our common law.  It is consistent with the jurisdiction of our district courts.  There is nothing in the Uniform Probate Code  to  indicate  the  legislature intended  to  supplant  it.   And  it  follows  our codified public  policy  against  wrongdoers  benefiting  from  their  wrongs.    We make this determination while keeping in mind that “equity follows the letter and the spirit of the law and courts of equity are bound by and must follow and apply  the  principles  of  substantive  law.”

What Happens When A Will Is Partially Invalidated In North Dakota?

Here, Kelly argued that if part of the will is invalid, then whatever assets not effectively disposed of would pass by intestate succession pursuant to N.D.C.C. 30.1-04-01(1), which states: Any  part  of  a  decedent’s  estate  not  effectively disposed of by will passes by intestate succession . . . This argument seems fairly straightforward given the law.  However, the North Dakota Supreme Court was not persuaded. The North Dakota Supreme Court reasoned that there is a strong presumption against intestacy, and that here the district court invalidated the will only to the extent it devised any interest in JT Ranch to Kelly and Sally.  The court gave effect to part of the contingent distribution clause that devised the JT Ranch shares to Donavin and David.  Therefore, the shares were effectively disposed of, and did not need to pass through intestate succession. The court bolstered its conclusion by reasoning that, “[w]hen a beneficiary attempts to obtain property by undue influence, ‘the beneficiary, although a survivor in fact, is not a survivor in the contemplation of law.’” The North Dakota Supreme Court determined that the district court did not abuse its discretion when it applied the doctrine of partial invalidity and gave effect to a portion of Leo’s will, instead of determining that the shares of JT Ranch would pass through intestate succession.

The Dissent - Majority Ignored North Dakota Law

The dissent in this case argued that the majority ignored the fact that the district court rewrote the will and failed to properly apply North Dakota law.  The dissent goes in depth as to the facts of the case, and says this about the majority’s opinion:

The majority fails to acknowledge the district court said it rewrote the will.  It obscures what the district court did, saying “the court gave effect to part of  the  contingent  distribution  clause  that  devised  the  JT  Ranch  shares  to  Donavin Grenz and David Grenz.”  There are at least three problems with this assertion. First,  that  is  not  what  the  district  court  said  it  did.  The  district  court  says it rewrote the will: “The will is rewritten as follows . . . .” Second, if the provision in the will leaving the ranch shares to the wife is invalidated, the contingency clause by its terms is not activated because it was predicated on the wife’s not surviving, but the wife survived. Third, the contingency clause it says was “given effect” was not followed by  the  district  court.  The  contingency  clause  in  Leo  Grenz’s  will  would  have  left the ranch shares to all three sons equally, but the “contingency clause” in the district court’s will left the property only to Donavin and David Grenz. The majority says there is no problem with what the district court did because it just rearranged words, sentences, and beneficiaries already there, and renumbered things. Under this rationale, if a will says, “I leave everything to A and nothing to B,” the will would not have been rewritten if the court had rearranged the words to say, “I leave nothing to A and everything to B.”

  So, this opinion clarifies that the doctrine of partial invalidity still applies in a North Dakota will contest after the adoption of the Uniform Probate Code.  However, it creates confusion as to the scope of the district court's discretion in "giving effect" to other clauses of the will that do not necessarily apply in a given situation, to the exclusion of North Dakota statutes.