NDCODE

Article I General Provisions, Definitions, and Probate Jurisdiction of Court

CHAPTER 30.1-01 Short Title — Construction — General Provisions — Definitions

30.1-01-01. (1-101) Short title.

This title shall be known and may be cited as the Uniform Probate Code.

Source:

S.L. 1973, ch. 257, § 1.

Law Reviews.

The New North Dakota Probate Code, W. Jeremy Davis, 49 N.D. L. Rev. 543 (1973).

The Uniform Probate Code: The Way to Probate in North Dakota, 50 N.D. L. Rev. 593 (1974).

North Dakota Estate Planning under the Tax Reform Act of 1976, 54 N.D. L. Rev. 7 (1977).

Comparative Legislation.

Jurisdictions which have enacted the Uniform Probate Code include:

Alaska Stat. §§ 13.06.005 to 13.36.100.

Ariz. Rev. Stat. Ann. §§ 14-1101 to 14-7307.

Colo. Rev. Stat. §§ 15-10-101 to 15-17-101.

Fla. Stat. §§ 731.005 to 735.302, 737.101 to 737.512.

Hawaii Rev. Stat. §§ 560:1-101 to 560:8-102.

Idaho Code §§ 15-1-101 to 15-7-307.

Ky. Rev. Stat. §§ 386.650 to 386.670.

Me. Rev. Stat. Ann. tit. 18-A, §§ 1-101 to 8-401.

Mich. Comp. Laws §§ 700.1 to 700.993.

Minn. Stat. §§ 524.1-101 to 524.8-103.

Mont. Code Ann. §§ 72-1-101 to 72-5-502.

Neb. Rev. Stat. §§ 30-2201 to 30-2902.

N.M. Stat. Ann. §§ 45-1-101 to 45-7-401.

S.C. Code Ann. §§ 62-1-100 to 62-7-604.

Utah Code Ann. §§ 75-1-101 to 75-8-101.

30.1-01-02. (1-102) Purposes — Rule of construction.

This title shall be liberally construed and applied to promote its underlying purposes and policies.
The underlying purposes and policies of this title are:
1. To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons.
2. To discover and make effective the intent of a decedent in distribution of the decedent’s property.
3. To promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors.
4. To facilitate the use and enforcement of certain trusts.
5. To make uniform the law among the various jurisdictions.

Source:

S.L. 1973, ch. 257, § 1.

Notes to Decisions

Liberal Construction.

In a guardianship case, a ward's statutory rights were not violated because a district court substantially complied with this statute by accepting a physician's letter as the required physician's report. Even though an appointed expert refused to evaluate the ward, this letter provided a medical evaluation to the court satisfying the statutory requirements, and there was liberal construction of this title. N.P. v. M.E. (In re M.E.), 2015 ND 267, 871 N.W.2d 435, 2015 N.D. LEXIS 289 (N.D. 2015).

30.1-01-03. (1-106) Effect of fraud and evasion.

Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title, or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during the decedent’s lifetime which affects the succession of the decedent’s estate.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

This is an overriding provision that provides an exception to the procedures and limitations provided in the Code. The remedy of a party wronged by fraud is intended to be supplementary to other protections provided in the Code and can be maintained outside the process of settlement of the estate. Thus, if a will which is known to be forgery is probated informally, and the forgery is not discovered until after the period for contest has run, the defrauded heirs still could bring a fraud action under this section. Or if a will is fraudulently concealed after the testator’s death and its existence not discovered until after the basic three-year period (section 30.1-12-08) has elapsed, there still may be an action under this section. Similarly, a closing statement normally provides binding protection for the personal representative after six months from filing (section 30.1-21-05). However, if there is fraudulent misrepresentation or concealment in the preparation of the claim, a later suit may be brought under this section against the personal representative for damages; or restitution may be obtained from those distributees who benefit by the fraud. In any case innocent purchasers for value are protected.

Any action under this section is subject to usual rules of res judicata; thus, if a forged will has been informally probated, an heir discovers the forgery, and then there is a formal proceeding under section 30.1-21-01 of which the heir is given notice, followed by an order of complete settlement of the estate, the heir could not bring a subsequent action under section 30.1-01-03 but would be bound by the litigation in which the issue could have been raised. The usual rules for securing relief for fraud on a court would govern, however.

The final limitation in this section is designed to protect innocent distributees after a reasonable period of time. There is no limit (other than the two years from discovery of the fraud) against the wrongdoer. But there ought to be some limit after which innocent persons who have built up expectations in good faith cannot be deprived of the property by a restitution action.

The time of “discovery” of a fraud is a fact question to be determined in the individual case. In some situations persons may not actually know that a fraud has been perpetrated but have such strong suspicion and evidence that a court may conclude there has been a discovery of the fraud at that stage. On the other hand there is no duty to exercise reasonable care to discover fraud; the burden should not be on the heirs and devisees to check on the honesty of the other interested persons or the fiduciary.

Notes to Decisions

Action Outside of Probate.

When the formal processes of admitting a will to probate, appointing a personal representative, or settling an estate are preceded by notice to all interested persons and a full adversarial hearing, the adjudication generally binds notified persons. An independent action for relief from fraud is authorized if it has not already been litigated in a formal testacy proceeding, and a party wronged by fraud may bring a timely action outside of the usual procedures and limitations. Ketterling v. Gonzalez (In re the Estate of Ketterling), 515 N.W.2d 158, 1994 N.D. LEXIS 95 (N.D. 1994).

Applicability.

District court did not err in determining the ownership of the property at issue because its findings that an estate's failed to meet its burden of proving fraud or mistake were not clearly erroneous where the primary purpose of the estate's action was to reform a deed and determine ownership of property the estate alleged it owned, the statute of limitations was not applicable to the estate's quiet title and reformation claim, the estate's appellate brief did not attack the district court's findings of fact on fraud, and the evidence did not establish whether the son and the father's estate intended to change the personal representative's deed or whether the deed was fraudulently or mistakenly altered. Vaage v. State (In re Estate of Vaage), 2016 ND 32, 875 N.W.2d 527, 2016 N.D. LEXIS 22 (N.D. 2016).

Collateral References.

Wills 153, 225, 259, 260.

95 C.J.S. Wills, §§ 343, 495, 499-509, 530-534.

Codicil as validating will or prior codicil executed under undue influence or fraud, 21 A.L.R.2d 821, 829.

Destruction of will: what constitutes fraud within statute relating to proof of will “fraudulently” destroyed during testator’s lifetime, 23 A.L.R.2d 382.

Res judicata: judgment denying validity of will because of undue influence, lack of mental capacity, or the like, as res judicata as to validity of another will, deed, or other instrument, 25 A.L.R.2d 657.

Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319, 1365.

Presumption or inference of undue influence from testamentary gift to relative, friend, or associate of person preparing will or procuring its execution, 13 A.L.R.3d 381.

Attorney: undue influence in gift to testator’s attorney, 19 A.L.R.3d 575.

Solicitation of testator to make will or specified bequest as undue influence, 48 A.L.R.3d 961.

Partial invalidity: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

30.1-01-04. (1-107) Evidence of death or status.

In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:

Death occurs when an individual is determined to be dead under chapter 23-06.3.
A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death, and the identity of the decedent.
A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
In the absence of prima facie evidence of death under subsection 2 or 3, the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
An individual whose death is not established under this section, who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
In the absence of evidence disputing the time of death stated on a document described in subsection 2 or 3, a document described in subsection 2 or 3 that states a time of death one hundred twenty hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by one hundred twenty hours.

Source:

S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 1; 1993, ch. 334, § 1; 1995, ch. 322, § 27.

Editorial Board Comment.

Paragraph (1) defines death by reference to the Uniform Determination of Death Act (UDDA).

Note that paragraph (6) is made desirable by the fact that Sections 2-104 [N.D.C.C. § 30.1-04-04] and 2-702 [N.D.C.C. § 30.1-09.1-02] require that survival by 120 hours must be established by clear and convincing evidence.

Paragraph (4) is inconsistent with Section 1 of Uniform Absence as Evidence of Death and Absentees’ Property Act (1938).

Proceedings to secure protection of property interests of an absent person may be commenced as provided in 5-401 [N.D.C.C. § 30.1-29-01].

Collateral References.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

Will provision: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 A.L.R.3d 359.

30.1-01-05. (1-108) Acts by holder of general power.

For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

The status of a holder of a general power in estate litigation is dealt with by section 30.1-03-03.

This section permits the settlor of a revocable trust to prevent the trustee from registering the trust so long as the power of revocation continues.

“General power,” as used in this section, is intended to refer to the common law concept, rather than to tax or other statutory meanings. A general power, as used herein, is one which enables the power holder to draw absolute ownership to himself.

Collateral References.

Powers 36.

62 Am. Jur. 2d, Powers, § 5, 85 et seq.

30.1-01-06. (1-201) General definitions.

Subject to additional definitions contained in the subsequent chapters which are applicable to specific chapters, and unless the context otherwise requires, in this title:

“Agent” includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another’s health care, and an individual authorized to make decisions for another under a natural death act.
“Application” means a written request to the court for an order of informal probate or appointment under chapter 30.1-14.
“Augmented estate” means the estate described in section 30.1-05-02.
“Beneficiary”, as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a beneficiary of a beneficiary designation, refers to a beneficiary of an account with a payable on death designation, of a security registered in beneficiary form transferable on death, or other nonprobate transfer at death; and, as it relates to a “beneficiary designated in a governing instrument”, includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, or a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised.
“Beneficiary designation” refers to a governing instrument naming a beneficiary of an account with payable on death designation, of a security registered in beneficiary form transferable on death, or other nonprobate transfer at death.
“Child” includes an individual entitled to take as a child under this title by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
“Claims”, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
“Conservator” means a person who is appointed by a court to manage the estate of a protected person, and includes limited conservators as defined in this section.
“Court” means the court having jurisdiction in matters relating to the affairs of decedents.
“Descendant” of an individual means all descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this title.
“Devise”, when used as a noun, means a testamentary disposition of real or personal property, and when used as a verb, means to dispose of real or personal property by will.
“Devisee” means a person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
“Disability” means cause for a protective order as described in section 30.1-29-01.
“Distributee” means any person who has received property of a decedent from the decedent’s personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will to the extent of the devised assets.
“Estate” includes the property of the decedent, trust, or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration.
“Exempt property” means that property of a decedent’s estate which is described in section 30.1-07-01.
“Expert examiner” means:
1. A licensed physician;
2. A psychiatrist;
3. A licensed psychologist trained in a clinical program;
4. An advanced practice registered nurse who is licensed under chapter 43-12.1 within the role of a certified nurse practitioner or certified clinical nurse specialist, who has completed the requirements for a minimum of a master’s degree from an accredited program, and who is functioning within the scope of practice in one of the population foci as approved by the state board of nursing; or
5. A physician assistant who is licensed under chapter 43-17 and authorized by the state board of medical examiners to practice in this state.
“Fiduciary” includes a personal representative, guardian, conservator, and trustee.
“Foreign personal representative” means a personal representative appointed by another jurisdiction.
“Formal proceedings” means proceedings conducted before a judge with notice to interested persons.
“Governing instrument” means a deed, will, trust, insurance or annuity policy, account with payable on death designation, security registered in beneficiary form transferable on death, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
“Guardian” means a person who or nonprofit corporation that has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, and includes limited guardians as defined in this section, but excludes one who is merely a guardian ad litem.
“Heirs”, except as controlled by section 30.1-09.1-11, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.
“Incapacitated person” means an individual described in section 30.1-26-01.
“Informal proceedings” means those conducted by the court for probate of a will or appointment of a personal representative without notice to interested persons.
“Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. The term also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
“Issue” of a person means descendant as defined in subsection 10.
“Joint tenants with the right of survivorship” and “community property with the right of survivorship” includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party’s contribution.
“Lease” includes an oil, gas, or other mineral lease.
“Letters” includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
“Limited conservator” means a person or nonprofit corporation, appointed by the court, to manage only those financial resources specifically enumerated by the court for the person with limited capacity and includes limited conservators as described by section 30.1-29-20.
“Limited guardian” means a person or nonprofit corporation, appointed by the court, to supervise certain specified aspects of the care of a person with limited capacity and includes limited guardians as described by section 30.1-28-04.
“Minor” means a person who is under eighteen years of age.
“Mortgage” means any conveyance, agreement, or arrangement in which property is encumbered or used as security.
“Nonresident decedent” means a decedent who was domiciled in another jurisdiction at the time of death.
“Organization” means a corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership, joint venture, association, or any other legal or commercial entity.
“Parent” includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title, by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
“Payer” means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.
“Person” means an individual, a corporation, a limited liability company, an organization, or other legal entity.
“Person with limited capacity” is as defined in section 30.1-26-01.
“Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. “General personal representative” excludes special administrator.
“Petition” means a written request to the court for an order after notice.
“Proceeding” includes action at law and suit in equity.
“Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
“Protected person” is as defined in section 30.1-26-01.
“Protective proceeding” means a proceeding described in section 30.1-26-01.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
“Security” includes any note, stock, treasury stock, bond, debenture, membership interest in a limited liability company, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
“Settlement”, in reference to a decedent’s estate, includes the full process of administration, distribution, and closing.
“Sign” means, with present intent to authenticate or adopt a record other than a will, to execute or adopt a tangible symbol or to attach to or logically associate with the record an electronic symbol, sound, or process.
“Special administrator” means a personal representative as described by sections 30.1-17-14 through 30.1-17-18.
“State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.
“Successor personal representative” means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
“Successors” means persons, other than creditors, who are entitled to property of a decedent under the decedent’s will or this title.
“Supervised administration” refers to the proceedings described in chapter 30.1-16.
“Survive” means that an individual has neither predeceased an event, including the death of another individual, nor predeceased an event under sections 30.1-04-04 and 30.1-09.1-02. The term includes its derivatives, such as “survives”, “survived”, “survivor”, and “surviving”.
“Testacy proceeding” means a proceeding to establish a will or determine intestacy.
“Trust” includes an express trust, private or charitable, with additions thereto, wherever and however created. The term also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. The term excludes other constructive trusts and excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in custodial arrangements pursuant to chapter 11-22, chapter 12-48, sections 25-01.1-19 to 25-01.1-21, chapter 32-10, section 32-16-37, chapter 32-26, former chapter 47-24, chapter 47-24.1, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
“Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
“Visitor” means an individual, in guardianship proceedings, who is in nursing or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.
“Ward” means an individual described in section 30.1-26-01.
“Will” includes codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.

Source:

S.L. 1973, ch. 257, § 1; 1981, ch. 320, § 76; 1983, ch. 313, § 5; 1985, ch. 369, § 2; 1985, ch. 508, § 23; 1991, ch. 54, § 18; 1991, ch. 326, § 115; 1991, ch. 595, § 1; 1993, ch. 54, § 106; 1993, ch. 334, § 2; 1995, ch. 322, §§ 1, 2, 27; 2009, ch. 283, § 1; 2017, ch. 230, § 1, effective August 1, 2017.

Effective Date.

The 2009 amendment of this section by section 1 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Special definitions for Articles V and VI are contained in Sections 5-102 [N.D.C.C. § 30.1-26-01], 6-201 [N.D.C.C. § 30.1-31-02], and 6-301 [N.D.C.C. § 30.1-31-21]. Except as controlled by special definitions applicable to these particular Articles, or applicable to particular sections, the definitions in Section 1-201 [N.D.C.C. § 30.1-01-06] apply to the entire Code.

Cross-References.

The term “will” includes “codicil”, see § 1-01-49, subs. 19.

Notes to Decisions

Claims.
Determination of Heirs.
Formal Testacy Proceeding.
- —In General.
- —Will Contest.
Informal Proceedings.
Interested Person.
Notice by Publication.
Notice to Interested Persons.
Omitted Heirs.

Claims.

Because a creditor’s claim for tort damages can be filed in a probate proceeding under this title, the death of a potential defendant before the period of the statute of limitations has run on a tort claim does not make N.D.C.C. § 28-01-16 ineffective, and N.D.C.C. § 28-01-26 does not apply. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Appellate court reversed a grant of summary judgment in favor of a corporation in its action for specific performance to compel the estate to sell the decedent’s stock certificates because the action was a claim against the estate under N.D.C.C. § 30.1-01-06(7) as it was a claim that sought to impose a liability on the estate based on a contract right to purchase shares, and it was barred by the limitation clause in N.D.C.C. § 30.1-19-03(2)(b). Steen & Berg Co. v. Berg (In re Estate of Berg), 2006 ND 86, 713 N.W.2d 87, 2006 N.D. LEXIS 91 (N.D. 2006).

In determining whether the adopted woman was a proper devisee of the estate of decedent, who was the mother of the adopted woman’s biological father who predeceased the decedent, courts pursuant to N.D.C.C. § 1-02-03 had to give terms that defined the relationship between people their peculiar and appropriate meaning as defined by statute. Since the decedent’s child under N.D.C.C. § 30.1-01-06(4) was the biological son and the adopted woman was the biological father’s “issue” under N.D.C.C. § 30.1-01-06(22), the fact of the adopted woman’s adoption by the adoptive father did not affect the relationship between the adopted woman and biological father, according to N.D.C.C. § 30.1-04-09(1), and meant that the adopted woman was a proper devisee of decedent. Kraft v. Ramos (In re Estate of Boehm), 2012 ND 104, 816 N.W.2d 793, 2012 N.D. LEXIS 93 (N.D. 2012).

Determination of Heirs.

An order which stated only that: “All aunts and uncles on the maternal and paternal sides who left issue, shall receive equal shares and the share of each deceased aunt or uncle, who left issue, shall be left to the issue of that deceased person in equal shares by right of representation,” merely recited the statutory direction for inheritance by representation and did not determine the heirs. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Formal Testacy Proceeding.

—In General.

Where petitioner was attempting to establish ownership of property through an unprobated will as evidence of a devise, and did not claim that he, or anyone else, was an heir entitled to the minerals under the law of intestate succession, and also did not attempt to probate a will, the proceeding was not a “formal testacy proceeding” as defined by this section or N.D.C.C. 30.1-15-01, and since N.D.C.C. 30.1-15-06 applies to a “formal testacy proceeding”, it did not directly apply here. In re Estate of Papineau, 396 N.W.2d 735, 1986 N.D. LEXIS 442 (N.D. 1986).

—Will Contest.

Any will contest generally becomes a formal proceeding. Ketterling v. Gonzalez (In re the Estate of Ketterling), 515 N.W.2d 158, 1994 N.D. LEXIS 95 (N.D. 1994).

Informal Proceedings.

Informal proceedings for determining testacy and appointing personal representatives generally do not have notice requirements, are basically ex parte in nature, and are handled administratively, not adversarially. Ketterling v. Gonzalez (In re the Estate of Ketterling), 515 N.W.2d 158, 1994 N.D. LEXIS 95 (N.D. 1994).

Interested Person.

Decedent’s daughter, as the personal representative of her mother’s estate and as a residuary beneficiary and child of the decedent who stood to acquire the disputed property if her action was successful, qualified as an “interested person” under N.D.C.C. § 30.1-01-06(25) with standing to bring the will contest. Therefore, the daughter had standing in a will contest proceeding and was not prohibited from relying on the alleged invalidity of her mother and second husband’s marriage as evidence of fraud. Black v. Richmond (In re Estate of Richmond), 2005 ND 145, 701 N.W.2d 897, 2005 N.D. LEXIS 179 (N.D. 2005).

Decedent’s child was an interested person and was able to petition for removal of a personal representative; moreover, a district court failed to follow the statutory requirements for hearings on the petition because it entered an order denying such without providing time to schedule a hearing. The child requested a hearing following the procedural requirements for doing so. Valer v. Bartelson (In re Estate of Bartelson), 2013 ND 129, 833 N.W.2d 522, 2013 N.D. LEXIS 132 (N.D. 2013).

Son could not require a personal representative's supplementary inventory because, once another child was held entitled to an entire estate, the son had no right in or claim against the estate, so the son was no longer an “interested person,” and the son showed no statutory ground for the relief sought. Estate of Pedro v. Scheeler, 2014 ND 237, 856 N.W.2d 775, 2014 N.D. LEXIS 218 (N.D. 2014).

In a dispute over the sale of farmland, a dismissal of an appeal was not warranted based on mootness because the sale was made to an interested person involved in the probate proceedings; therefore, a conveyance after a district court issued its order did not deprive the North Dakota Supreme Court of jurisdiction over the farmland. In re Estate of Johnson, 2015 ND 110, 863 N.W.2d 215, 2015 N.D. LEXIS 109 (N.D. 2015).

Because a personal representative could be an interested person, petitioner was not precluded from filing petitions as an interested person in the formal supervised probate administration while simultaneously performing her fiduciary duty as the personal representative to distribute the property according to the decedent’s will and the best interests of the estate. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

Probate court had personal jurisdiction over the parties because all of the parties necessary for determination of the title to the decedent’s property interests that were transferred to the legacy trust fell within the definition of an interested person, and they were provided with notice of the hearing on the petitions; and all parties to the civil action were served with notice of hearing of the petitions to determine title and value to the property. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

Notice by Publication.

Notice is effected by publication only if the address or identity of the person is unknown and cannot be ascertained with reasonable diligence. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Notice to Interested Persons.

In all formal estate proceedings, notice must be given to every interested person prior to any formal hearing or order; interested persons not notified of formal proceedings are not bound. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Omitted Heirs.

Where the names and addresses of the omitted heirs were known prior to the hearing on the petition for order of distribution, but no notice of any kind was given to the omitted heirs, the probate court was without jurisdiction as to the omitted heirs. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Appearance Without Citation.

Where a person of lawful age personally appeared without being cited at a hearing called by a county judge on petition for a guardian’s appointment, and stated that she wished to have a person appointed as her guardian, and signed a written request for his appointment, the court acquired jurisdiction over her person to the same extent as if she had been cited. In re Guardianship of Jones, 66 N.D. 185, 263 N.W. 160, 1935 N.D. LEXIS 185 (N.D. 1935).

Interested Person.

Former definition of “person interested” did not apply to hearings had upon accounts concerning the ranking of creditors for sharing in the estate and accounting, allowing, or disallowing it. Elton v. Lamb, 33 N.D. 388, 157 N.W. 288, 1916 N.D. LEXIS 91 (N.D. 1916).

Will.

When used in Title 30, N.D.C.C., Judicial Procedure, Probate, the term “will” included “codicil”. Hoppin v. Fortin, 111 N.W.2d 122, 1961 N.D. LEXIS 95 (N.D. 1961).

Collateral References.

Living wills: validity, construction, and effect, 49 A.L.R.4th 812.

CHAPTER 30.1-02 Scope, Jurisdiction, and Courts

30.1-02-01. (1-301) Territorial application.

Except as otherwise provided in this title, this title applies to:

The affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state.
The property of nonresidents located in this state or property coming into the control of a fiduciary which is subject to the laws of this state.
Incapacitated persons and minors in this state.
Survivorship and related accounts in this state.
Trusts subject to administration in this state.

Source:

S.L. 1973, ch. 257, § 1.

Notes to Decisions

Disposition of Decedent’s Real Property.

The county court did not err in determining that agreement between decedent and his wife, residents of Washington, providing that all their property would be considered community property, title to which would immediately vest in the survivor on the death of either spouse, had no effect on the disposition of decedent’s North Dakota real property. In re Estate of Erickson, 368 N.W.2d 525, 1985 N.D. LEXIS 321 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Lands Converted to Personalty.

Laws of this state determined whether lands situated within state were equitably converted into personalty. Security-First Nat'l Bank v. North Dakota Children Home Soc'y, 85 N.W.2d 553 (N.D. 1957).

30.1-02-02. (1-302) Subject matter jurisdiction.

The district court has jurisdiction over all subject matter relating to guardianship, probate, and testamentary matters, including:

Estates of decedents, including construction of wills and determination of heirs and successors of decedents.
Estates of protected persons.
Protection of minors and incapacitated persons.
Trusts.

Source:

S.L. 1973, ch. 257, § 1; 1983, ch. 82, § 64; 1983, ch. 352, § 2; 1991, ch. 326, § 116.

Cross-References.

District court jurisdiction, see N.D. Const. Art. VI, § 8.

Jurisdiction over persons, see N.D.C.C. § 30.1-12-06.

Subject matter jurisdiction of devolution and administration proceedings, see N.D.C.C. § 30.1-12-05.

Appeals to District Court.

Under certain circumstances, it is appropriate to seek a summary judgment in probate appeals to the district court. Knudsen v. Knudsen, 322 N.W.2d 454 (N.D. 1982), decided prior to the amendment to this section by Session Laws 1973, ch. 352.

Breach of Fiduciary Duties.

County court has jurisdiction to review allegations of breach of fiduciary duty by the personal representative and excessive compensation of persons employed by a personal representative. In re Estate of Ridl, 455 N.W.2d 188, 1990 N.D. LEXIS 95 (N.D. 1990).

The county court has jurisdiction to order a person who has received excessive compensation to make a refund to the estate and to order the personal representative to pay for losses to the estate caused by a breach of a fiduciary duty. In re Estate of Ridl, 455 N.W.2d 188, 1990 N.D. LEXIS 95 (N.D. 1990).

Conservatorships.

Because the district court does not have jurisdiction over conservatorships, it is proper for it to stay its order pending a resolution of whether the conservator has the power to revoke the trust in county court. In re Bo, 365 N.W.2d 847, 1985 N.D. LEXIS 286 (N.D. 1985).

County court had authority to resolve the issue of whether conservator acted with a substantial conflict of interest in authorizing sale of farmland belonging to the estate to her son so as to determine if rescission of the contract was necessary. Kopperud v. Reilly, 453 N.W.2d 598, 1990 N.D. LEXIS 76 (N.D. 1990).

Equitable Jurisdiction.

The decision in In re Estate of Jones, 288 N.W.2d 758, which was rendered prior to the 1983 amendment of this section, is no longer dispositive of the issues of equitable jurisdiction of the county courts. In re Estate of Binder, 366 N.W.2d 454, 1985 N.D. LEXIS 293 (N.D. 1985).

A district court has jurisdiction over trusts, guardianships and conservatorships. Mangnall v. Adams (In re Mangnall), 1997 ND 19, 559 N.W.2d 221, 1997 N.D. LEXIS 12 (N.D. 1997).

Paternity Issues.

The county court had implied authority to resolve the issue of alleged paternity because such a resolution was reasonably necessary to enable the court to effectively adjudicate who should inherit the putative father’s estate. Baehm v. Sorensen, 411 N.W.2d 362 (N.D. 1987).

Probate Jurisdiction.

District courts in North Dakota have had probate jurisdiction since county courts were abolished in 1995. Ohnstad Twichell, P.C. v. Treitline, 1998 ND 10, 574 N.W.2d 194, 1998 N.D. LEXIS 11 (N.D. 1998).

Trusts.

County courts have jurisdiction over all trust matters, including the authority to grant an equitable remedy. In re Estate of Binder, 366 N.W.2d 454, 1985 N.D. LEXIS 293 (N.D. 1985).

Collateral References.

Courts 149 1/2, 183, 198-202, 239; Wills 248.

20 Am. Jur. 2d, Courts, § 69; 79 Am. Jur. 2d, Wills, §§ 748-754.

95 C.J.S. Wills, § 524.

30.1-02-03. (1-303) Venue — Multiple proceedings — Transfer.

Where a proceeding under this title could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.
If proceedings concerning the same estate, protected person, ward, or trust are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.

Source:

S.L. 1973, ch. 257, § 1.

Collateral References.

Wills 258.

77 Am. Jur. 2d, Venue, § 18.

95 C.J.S. Wills, § 529.

30.1-02-04. (1-304) Practice in court.

Unless specifically provided to the contrary in this title or unless inconsistent with its provisions, the Rules of Civil Procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this title.

Source:

S.L. 1973, ch. 257, § 1.

Notes to Decisions

Appeals to District Court.
N.D.R.Civ.P. 52(a).
N.D.R.Civ.P. 54(b).

Appeals to District Court.

The Rules of Civil Procedure apply to appeals from county courts to district courts unless the Probate Code specifically provides otherwise or the rules are inconsistent with the code. In re Estate of Bieber, 256 N.W.2d 879, 1977 N.D. LEXIS 165 (N.D. 1977).

N.D.R.Civ.P. 52(a).

Rule 52(a), N.D.R.Civ.P. is applicable to probate proceedings in county court. In re Estate of Raketti, 340 N.W.2d 894, 1983 N.D. LEXIS 417 (N.D. 1983); First Trust Co. v. Conway, 345 N.W.2d 838, 1984 N.D. LEXIS 255 (N.D. 1984).

N.D.R.Civ.P. 54(b).

Rule 54(b), N.D.R.Civ.P. is applicable in probate proceedings. In re Estate of Erickson, 368 N.W.2d 525, 1985 N.D. LEXIS 321 (N.D. 1985); In re Estate of Starcher, 447 N.W.2d 293, 1989 N.D. LEXIS 200 (N.D. 1989).

30.1-02-05. (1-305) Records and certified copies.

The court or clerk of court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this title, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Certifications of probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal. Certifications of letters must show the date of appointment.

Source:

S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 1.

30.1-02-06. (1-307) Powers.

The acts and orders which this title specifies as performable by the district court may be performed either by a judge of the appropriate court or by a person, including the clerk, designated by the appropriate court by a written order filed and recorded in the office of the court. However, without a written order of the court, the clerk may sign all appropriate documents in uncontested informal probate matters if the requirements of sections 30.1-12-08 and 30.1-13-01 have been satisfied, at least one hundred twenty hours have elapsed since the decedent’s death, and the person seeking appointment as personal representative is named in the will or otherwise has priority under section 30.1-13-03 or others entitled to appointment have renounced the right to appointment.

Source:

S.L. 1973, ch. 257, § 1; 1995, ch. 147, § 9.

30.1-02-06.1. (1-308) Appeals.

Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments, and power of the appellate court, is governed by the rules applicable to the appeals to the supreme court in equity cases from the district court, except that in proceedings in which jury trial has been had as a matter of right, the rules applicable to the scope of review in jury cases apply.

Source:

S.L. 1981, ch. 319, § 49.

Notes to Decisions

Guardian/Conservator.
Judgment as to Fewer Than All claims or Parties.
N.D.R.Civ.P. 54(b).
Probate Orders.

Guardian/Conservator.

Patient’s wife was unable to raise issues about the admissibility of evidence and cross-examination of witnesses in a proceeding where a guardian/conservator was appointed because she had not filed an appeal from that decision, as permitted by N.D.C.C. §§ 30.1-02-06.1 and 28-27-02. C.V. v. Gurardian and Protective Servs. (In re Guardianship & Conservatorship of G.L.), 2011 ND 10, 793 N.W.2d 192, 2011 N.D. LEXIS 6 (N.D. 2011).

Judgment as to Fewer Than All claims or Parties.

Parties in probate proceedings bear the duty of requesting an order or certification pursuant to N.D.R.Civ.P. 54(b) if they seek an appeal from a judgment as to one or more but fewer than all claims or parties. First Trust Co. v. Conway, 345 N.W.2d 838, 1984 N.D. LEXIS 255 (N.D. 1984).

N.D.R.Civ.P. 54(b).

Probate Orders.

The right to appellate review of probate orders is governed by the rules applicable to appeals to the supreme court in equity cases from the district court. In re Estate of Sorensen, 406 N.W.2d 365, 1987 N.D. LEXIS 331 (N.D. 1987).

Under N.D.C.C. § 30.1-02-06.1, the rules applicable to appeals in equity cases govern the right to appeal probate orders. Once jurisdiction is established under N.D.C.C. § 28-27-02, N.D.R.Civ.P. 54(b)’s separate requirements must also be met, if applicable. Those requirements applied in the personal representative’s case because the personal representative was appealing from a ruling in an informal probate case that did not distribute all of the insurance proceeds, approve a final distribution, or discharge the personal representative, and, thus, because not all of the issues had been ruled upon and no N.D. R. Civ. P. 54(b) certification had been obtained, the state supreme court lacked jurisdiction over the appeal. Hollingsworth v. Hollingsworth (In re Hollingsworth), 2012 ND 16, 809 N.W.2d 328, 2012 N.D. LEXIS 11 (N.D. 2012).

DECISIONS UNDER PRIOR LAW

Waiver.

Devisee waived any objections concerning timely service of notice of appeal by failing to object to belated service and to the failure to file proof of service; personal representatives, who were also devisees and whose interests were opposed to the interests of the devisee who received the belated notice of appeal, could not assert devisee’s failure to receive timely notice of appeal to raise objection to district court’s assumption of jurisdiction over order admitting will to formal probate. In re Estate of Ewoniuk, 303 N.W.2d 553, 1981 N.D. LEXIS 216 (N.D. 1981).

Collateral References.

Appealability of probate orders allowing or disallowing claims against estate, 84 A.L.R.4th 269.

30.1-02-07. (1-310) Oath or affirmation on filed documents.

Except as otherwise specifically provided in this title or by rule, every document filed with the district court under this title, including applications, petitions, and demands for notice, is deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification therein.

Source:

S.L. 1973, ch. 257, § 1; 1991, ch. 326, § 117.

Notes to Decisions

Documents Under Oath or Affirmation.

Because the personal representative’s petition and the accompanying documents did not fall within any of the exceptions to this statute, her petitions and accompanying documents were sufficient to place the information in those documents before the probate court as statements under oath or affirmation to the effect that their representations were true. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

CHAPTER 30.1-03 Notice — Parties — Representation and Other Matters

30.1-03-01. (1-401) Notice — Method and time of giving.

If notice of a hearing on any petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or the interested person’s attorney if the interested person has appeared by attorney or requested that notice be sent to the interested person’s attorney. Notice shall be given:
1. By mailing a copy thereof at least fourteen days before the time set for the hearing by certified or ordinary first-class mail addressed to the person being notified at the post-office address given in that person’s demand for notice, if any, or at that person’s office or place of residence, if known;
2. By delivering a copy thereof to the person being notified personally at least fourteen days before the time set for the hearing; or
3. If the address, or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing at least once a week for three consecutive weeks, a copy thereof in a newspaper having general circulation in the county where the hearing is to be held, the last publication of which is to be at least ten days before the time set for the hearing.
The court for good cause shown may provide for a different method or time of giving notice for any hearing.
Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.

Source:

S.L. 1973, ch. 257, § 1.

Cross-References.

Initiation of probate proceedings, see N.D.C.C. §§ 30.1-14-01, 30.1-15-02.

Proceedings for review of employment of agents, compensation of personal representatives, and employees of estate, see N.D.C.C. § 30.1-18-21.

Notes to Decisions

Interested Persons.
Proper Notice.
Notice by Publication.
Omitted Heirs.
Proper Notice.

Interested Persons.

Proper Notice.

Notice to or service on E.M.’s attorney prior to E.M.’s or the attorney’s appearance in this action was inadequate service under N.D.C.C. § 30.1-03-01 since E.M. had not yet appeared by counsel in this matter. Bell bank v. Bell bank v. Tharaldson (In re Tharaldson Irrevocable Trust II), 2021 ND 203, 966 N.W.2d 564, 2021 N.D. LEXIS 206 (N.D. 2021).

Notice by Publication.

Notice is effected by publication only if the address or identity of the person is unknown and cannot be ascertained with reasonable diligence. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Omitted Heirs.

Proper Notice.

Beneficiary of will was given totally proper notice of hearing where notice was mailed to home address and to her attorney. Facts that beneficiary was, unbeknownst to estate’s personal representative, temporarily residing with her brother, was not informed by her brother or other beneficiaries of the hearing, and was left with no transportation after her brother borrowed her automobile on the day of the hearing, did not invalidate notice. In re Estates of Gustafson, 381 N.W.2d 208, 1986 N.D. LEXIS 260 (N.D. 1986).

DECISIONS UNDER PRIOR LAW

Amendment of Process.

Irregularities in a probate sale could be corrected under former section authorizing amendment of process. Cathro v. McArthur, 30 N.D. 337, 152 N.W. 686, 1915 N.D. LEXIS 133 (N.D. 1915).

Dismissal for Untimely Notice.

A party who moved for a dismissal of an appeal from the county court, on the grounds that the appeal was not timely nor properly perfected, had the burden of showing from the records the facts necessary to sustain the verdict. In re Estate of Ashbrook, 110 N.W.2d 184, 1961 N.D. LEXIS 79 (N.D. 1961).

Notice Insufficient.

On executor’s petition for the investment of funds of the estate, publication of notice of such hearing for one week did not comply with the provisions of S.L. 1925, ch. 120, § 4. Zlevor v. Tice, 64 N.D. 626, 255 N.W. 470, 1934 N.D. LEXIS 243 (N.D. 1934).

Service.

Service of notice of appeal from county court to district court upon an attorney of record, as authorized by former section 30-02-19, had to be made in the manner provided by that section and former sections 30-02-10, 30-02-11; N.D.R.Civ.P. 5(b), did not apply. In re Estate of Ashbrook, 110 N.W.2d 184, 1961 N.D. LEXIS 79 (N.D. 1961).

Service from County Court to District Court.

The mailing of notice of appeal from county court to district court by ordinary mail did not confer jurisdiction upon the county court to extend the time for the filing of the notice of appeal. In re Estate of Ashbrook, 110 N.W.2d 184, 1961 N.D. LEXIS 79 (N.D. 1961).

The requirements for personal service of notice of appeal from county court to district court were not met by mailing of notice of appeal to party, nor was it the equivalent thereof. In re Estate of Ashbrook, 110 N.W.2d 184, 1961 N.D. LEXIS 79 (N.D. 1961).

Where appellant failed to make valid service on any of the parties respondent of notice of appeal from the county court to the district court, appellee’s motion for dismissal of appeal directed to the district court was treated as a motion to strike the cause from the record of the court and the cause was ordered stricken from the appeal record. In re Estate of Ashbrook, 110 N.W.2d 184, 1961 N.D. LEXIS 79 (N.D. 1961).

Collateral References.

Wills 269, 270.

80 Am Jur 2d Wills § 812.

95 C.J.S. Wills, § 370.

Law Reviews.

A Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

30.1-03-02. (1-402) Notice — Waiver.

A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by the person or the person’s attorney and filed in the proceeding.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

The subject of appearance is covered by section 30.1-02-04.

DECISIONS UNDER PRIOR LAW

A party could in advance, and prior to the filing of a petition for an administration, consent to the same and in advance waive all notice and citation. Fischer v. Dolwig, 39 N.D. 161, 166 N.W. 793, 1918 N.D. LEXIS 7 (N.D. 1918).

30.1-03-03. (1-403) Pleadings — When parties bound by others — Notice.

In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:

Interests to be affected must be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests or in another appropriate manner.
A person is bound by an order binding another in the following cases:
1. An order binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, binds another person to the extent that person’s interests, as objects, takers in default, or otherwise, are subject to the power.
2. To the extent there is no conflict of interest between them or among persons represented, an order binding a conservator binds the person whose estate the conservator controls; an order binding a guardian binds the ward if no conservator of the ward’s estate has been appointed; an order binding a trustee binds a beneficiary of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a former fiduciary and in proceedings involving creditors or other third parties; an order binding a personal representative binds a person interested in the undistributed assets of a decedent’s estate in actions or proceedings by or against the estate; and an order binding a sole holder or all coholders of a general testamentary power of appointment binds other persons to the extent their interests as objects, takers in default, or otherwise are subject to the power.
3. Unless otherwise represented, a minor or an incapacitated, unborn, or unascertained person is bound by an order to the extent the person’s interest is adequately represented by another party having a substantially identical interest in the proceeding.
If no conservator or guardian has been appointed, a parent may represent a minor child.
Notice is required as follows:
1. The notice prescribed by section 30.1-03-01 must be given to every interested person or to one who can bind an interested person as described in subdivision a or b of subsection 2. Notice may be given both to a person and to another who may bind that person.
2. Notice is given to unborn or unascertained persons who are not represented under subdivision a or b of subsection 2 by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall state its reasons for appointing a guardian ad litem as a part of the record of the proceeding.

Source:

S.L. 1973, ch. 257, § 1; 1999, ch. 294, § 1.

Editorial Board Comment.

A general power, as used here and in section 30.1-01-05, is one which enables the power holder to draw absolute ownership to himself. The section assumes a valid general power. If the validity of the power itself were in issue, the power holder could not represent others, as for example, the takers in default.

The general rules of civil procedure are applicable where not replaced by specific provision, see section 30.1-02-04. Those rules would determine the mode of giving notice or serving process on a minor or the mode of notice in class suits involving large groups of persons made party to a suit.

1997 Technical amendment. By technical amendment effective July 31, 1997, (E) under subsection 2(ii) [adopted as last clause of subsection (2)(b)] was added to clarify that orders binding the holder of a general testamentary power may bind others to the extent their interests are subject to the power. The addition, like the other lettered segments of subsection (2)(ii) [subsection (2)(b)], is qualified by the stem language: “To the extent there is no conflict between them or among persons represented…” Also, (iii) under (2) [subsection (2)(c))] was broadened to include minors and incapacitated persons with the others listed as persons who may be bound by judicial orders under principles of virtual representation.

Notes to Decisions

Interested Persons.
Non-Binding Notice.
Notice by Publication.
Omitted Heirs.
Proceedings by or Against Estate.

Interested Persons.

Non-Binding Notice.

Where the omitted second cousins were neither unborn nor unascertained, the notice mailed to three second cousins of decedent did not bind all omitted second cousins. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Notice by Publication.

Notice is effected by publication only if the address or identity of the person is unknown and cannot be ascertained with reasonable diligence. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

Omitted Heirs.

Proceedings by or Against Estate.

While proceedings to appoint a personal representative, and to determine testacy, heirship, and distribution, are matters involving the estate, they are not proceedings by or against the estate, and subdivision 2 b of this section does not apply. Olson v. Estate of Hoffas, 422 N.W.2d 391 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Service of Citation.

Service of a citation could be made upon an attorney of record. Skachenko v. Sweetman, 77 N.D. 502, 43 N.W.2d 683, 1950 N.D. LEXIS 147 (N.D. 1950).

Article II Intestate Succession and Wills

CHAPTER 30.1-04 Intestate Succession

Editorial Board Prefatory Note for Article II.

The Uniform Probate Code was originally promulgated in 1969.

1990 Revisions . In 1990, Article II underwent significant revision. The 1990 revisions were the culmination of a systematic study of the Code conducted by the Joint Editorial Board for the Uniform Probate Code (now named the Joint Editorial Board for Uniform Trust and Estate Acts) and a special Drafting Committee to Revise Article II. The 1990 revisions concentrated on Article II, which is the article that covers the substantive law of intestate succession; spouse’s elective share; omitted spouse and children; probate exemptions and allowances; execution and revocation of wills; will contracts; rules of construction; disclaimers; and the effect of homicide and divorce on succession rights; and the rule against perpetuities and honorary trusts.

Themes of the 1990 Revisions. In the twenty or so years between the original promulgation of the Code and 1990, several developments occurred that prompted the systematic round of review. Three themes were sounded: (1) the decline of formalism in favor of intent-serving policies; (2) the recognition that will substitutes and other inter-vivos transfers have so proliferated that they now constitute a major, if not the major, form of wealth transmission; (3) the advent of the multiple-marriage society, resulting in a significant fraction of the population being married more than once and having stepchildren and children by previous marriages and (4) the acceptance of a partnership or marital-sharing theory of marriage.

The 1990 revisions responded to these themes. The multiple-marriage society and the partnership/marital-sharing theory were reflected in the revised elective-share provisions of Part 2. As the General Comment to Part 2 explained, the revised elective share granted the surviving spouse a right of election that implemented the partnership/marital-sharing theory of marriage.

The children-of-previous-marriages and stepchildren phenomena were reflected most prominently in the revised rules on the spouse’s share in intestacy.

The proliferation of will substitutes and other inter-vivos transfers was recognized, mainly, in measures tending to bring the law of probate and nonprobate transfers into greater unison. One aspect of this tendency was reflected in the restructuring of the rules of construction. Rules of construction are rules that supply presumptive meaning to dispositive and similar provisions of governing instruments. See Restatement (Third) of Property: Wills and Other Donative Transfers § 11.3 (2003). Part 6 of the pre-1990 Code contained several rules of construction that applied only to wills. Some of those rules of construction appropriately applied only to wills; provisions relating to lapse, testamentary exercise of a power of appointment, and ademption of a devise by satisfaction exemplify such rules of construction. Other rules of construction, however, properly apply to all governing instruments, not just wills; the provision relating to inclusion of adopted persons in class gift language exemplifies this type of rule of construction. The 1990 revisions divided pre-1990 Part 6 into two parts — Part 6, containing rules of construction for wills only; and Part 7, containing rules of construction for wills and other governing instruments. A few new rules of construction were also added.

In addition to separating the rules of construction into two parts, and adding new rules of construction, the revocation-upon-divorce provision (section 2-804 [ N.D.C.C. § 30.1-10-04]) was substantially revised so that divorce not only revokes testamentary devises, but also nonprobate beneficiary designations, in favor of the former spouse. Another feature of the 1990 revisions was a new section (section 2-503 [not adopted by North Dakota]) that brought the execution formalities for wills more into line with those for nonprobate transfers.

2008 Revisions. In 2008, another round of revisions was adopted. The principal features of the 2008 revisions are summarized as follows:

Inflation Adjustments. Between 1990 and 2008, the Consumer Price Index rose by somewhat more than 50 percent. The 2008 revisions raised the dollar amounts by 50 percent in Article II Sections 2-102 [ N.D.C.C. § 30.1-04-02], 2-102A, 2-201 [ N.D.C.C. § 30.1-05-02], 2-402 [not adopted by North Dakota], 2- 403 [ N.D.C.C. § 30.1-07-01], and 2-405 [ N.D.C.C. § 30.1-07-03], and added a new cost of living adjustment section — Section 1-109 [not adopted by North Dakota].

Intestacy . Part 1 on intestacy was divided into two subparts: Subpart 1 on general rules of intestacy and subpart 2 on parent-child relationships. For details, see the General Comment to Part 1.

Execution of Wills. Section 2-502 [ N.D.C.C. § 30.1-08-02] was amended to allow notarized wills as an alternative to wills that are attested by two witnesses. That amendment necessitated minor revisions to Section 2-504 [ N.D.C.C. § 30.1-08-04] on self-proved wills and to Section 3-406 [ N.D.C.C. § 30.1-15-06] on the effect of notarized wills in contested cases.

Class Gifts . Section 2-705 [ N.D.C.C. § 30.1-09.1-05] on class gifts was revised in a variety of ways, as explained in the revised Comment to that section.

Reformation and Modification . New Sections 2-805 [ N.D.C.C. § 30.1-10-05] and 2-806 [ N.D.C.C. § 30.1-10-06] brought the reformation and modification sections now contained in the Uniform Trust Code into the Uniform Probate Code.

General Editorial Board Comment.

The pre-1990 Code’s basic pattern of intestate succession, contained in Part 1, was designed to provide suitable rules for the person of modest means who relies on the estate plan provided by law. The 1990 and 2008 revisions were intended to further that purpose, by fine tuning the various sections and bringing them into line with developing public policy and family relationships.

1990 Revisions . The principal features of the 1990 revisions were:

So-called negative wills were authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir.
A surviving spouse was granted the whole of the intestate estate, if the decedent left no surviving descendants and no parents or if the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has no descendants who are not descendants of the decedent. The surviving spouse receives the first $200,000 plus three-fourths of the balance if the decedent left no surviving descendants but a surviving parent. The surviving spouse receives the first $150,000 plus one-half of the balance of the intestate estate, if the decedent’s surviving descendants are also descendants of the surviving spouse but the surviving spouse has one or more other descendants. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more surviving descendants who are not descendants of the surviving spouse. (To adjust for inflation, these dollar figures and other dollar figures in Article II were increased by fifty percent in 2008.)
A system of representation called per capita at each generation was adopted as a means of more faithfully carrying out the underlying premise of the pre-1990 UPC system of representation. Under the per-capita-at-each-generation system, all grandchildren (whose parent has predeceased the intestate) receive equal shares.
Although only a modest revision of the section dealing with the status of adopted children and children born of unmarried parents was then made, the question was under continuing review and it was anticipated that further revisions would be forthcoming in the future.
The section on advancements was revised so that it applies to partially intestate estates as well as to wholly intestate estates.

2008 Revisions . As noted in Item 4 above, it was recognized in 1990 that further revisions on matters of status were needed. The 2008 revisions fulfilled that need. Specifically, the 2008 revisions contained the following principal features:

Part 1 Divided into Two Subparts. Part 1 was divided into two subparts: Subpart 1 on general rules of intestacy and Subpart 2 on parent-child relationships.

Subpart 1: General Rules of Intestacy. Subpart 1 contains Sections 2-101 [N.D.C.C. § 30.1-04-01] (unchanged), 2-102 [N.D.C.C. § 30.1-04-02] (dollar figures adjusted for inflation), 2-103 [N.D.C.C. § 30.1-04-03] (restyled and amended to grant intestacy rights to certain stepchildren as a last resort before the intestate estate escheats to the state), 2-104 [N.D.C.C. § 30.1-04-04] (amended to clarify the requirement of survival by 120 hours as it applies to heirs who are born before the intestate’s death and those who are in gestation at the intestate’s death), 2-105 [N.D.C.C. § 30.1-04-05] (unchanged), 2-106 [N.D.C.C. § 30.1-04-06, repealed] (unchanged), 2-107 [N.D.C.C. § 30.1-04-07] (unchanged), 2-108 [N.D.C.C. § 30.1-04-08] (deleted and matter dealing with heirs in gestation at the intestate’s death relocated to 2-104 [N.D.C.C. § 30.1-04-04]), 2-109 [N.D.C.C. § 30.1-04-10] (unchanged), 2-110 [N.D.C.C. § 30.1-04-11] (unchanged), 2-111 [N.D.C.C. § 30.1-04-12] (unchanged), 2-112 [N.D.C.C. § 30.1-04-13] (unchanged), 2-113 [N.D.C.C. § 30.1-04-03.1] (unchanged), and 2-114 [N.D.C.C. § 30.1-04-09] (deleted and replaced with a new section addressing situations in which a parent is barred from inheriting).

Subpart 2: Parent-Child Relationships. New Subpart 2 contains several new or substantially revised sections. New Section 2-115 [N.D.C.C. § 30.1-04-14] contains definitions of terms that are used in subpart 2. New Section 2-116 [N.D.C.C. § 30.1-04-15] is an umbrella section declaring that, except as otherwise provided in Section 2-119(b) through (e) [N.D.C.C. § 30.1-04-18(2)-(5)], if a parent-child relationship exists or is established under this subpart 2, the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession. Section 2-117 [N.D.C.C. § 30.1-04-16] continues the rule that, except as otherwise provided in Sections 2-120 and 2-121 [N.D.C.C. § 30.1-04-19 and 20], a parent-child relationship exists between a child and the child’s genetic parents, regardless of their marital status. Regarding adopted children, Section 2-118 [N.D.C.C. § 30.1-04-17] continues the rule that adoption establishes a parent-child relationship between the adoptive parents and the adoptee for purposes of intestacy. Section 2-119 [N.D.C.C. § 30.1-04-18] addresses the extent to which an adoption severs the parent-child relationship with the adoptee’s genetic parents. New Sections 2-120 and 2-121 [N.D.C.C. § 30.1-04-19 and 20] turn to various parent-child relationships resulting from assisted reproductive technologies in forming families. As one researcher reported: “Roughly 10 to 15 percent of all adults experience some form of infertility.” Debora L. Spar, The Baby Business 31 (2006). Infertility, coupled with the desire of unmarried individuals to have children, have led to increased questions concerning children of assisted reproduction. Sections 2-120 and 2-121 [N.D.C.C. § 30.1-04-19 and 20] address inheritance rights in cases of children of assisted reproduction, whether the birth mother is the one who parents the child or is a gestational carrier who bears the child for an intended parent or intended parents. As two authors have noted: “Parents, whether they are in a married or unmarried union with another, whether they are a single parent, whether they procreate by sexual intercourse or by assisted reproductive technology, are entitled to the respect the law gives to family choice.” Charles P. Kindregan, Jr. & Maureen McBrien, Assisted Reproductive Technology: A Lawyer’s Guide to Emerging Law and Science 6-7 (2006). The final section, new Section 2-122 [N.D.C.C. § 30.1-04-21], provides that nothing contained in Subpart 2 should be construed as affecting application of the judicial doctrine of equitable adoption.

30.1-04-01. (2-101) Intestate estate.

Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this title, except as modified by the decedent’s will.
A decedent, by will, may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed the intestate share.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 3; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose of Revision. The amendments to subsection (a) [subsection (1)] are stylistic, not substantive.

New subsection (b) [subsection (2)] authorizes the decedent, by will, to exclude or limit the right of an individual or class to share in the decedent’s intestate estate, in effect disinheriting that individual or class. By specifically authorizing so-called negative wills, subsection (b) reverses the usually accepted common-law rule, which defeats a testator’s intent for no sufficient reason. See Note, “The Intestate Claims of Heirs Excluded by Will: Should ‘Negative Wills’ Be Enforced?”, 52 U. Chi. L. Rev. 177 (1985).

Whether or not in an individual case the decedent’s will has excluded or limited the right of an individual or class to take a share of the decedent’s intestate estate is a question of construction. A clear case would be one in which the decedent’s will expressly states that an individual is to receive none of the decedent’s estate. Examples would be testamentary language such as “my brother, Hector, is not to receive any of my property” or “Brother Hector is disinherited.”

An individual need not be identified by name to be excluded. Thus, if brother Hector is the decedent’s only brother, Hector could be identified by a term such as “my brother.” A group or class of relatives (such as “my brothers and sisters”) can also be excluded under this provision.

Subsection (b) establishes the consequence of a disinheritance-the share of the decedent’s intestate estate to which the disinherited individual or class would have succeeded passes as if that individual or class had disclaimed the intestate share. Thus, if the decedent’s will provides that brother Hector is to receive $50.00 and no more, Hector is entitled to the $50.00 devise (because Hector is not treated as having predeceased the decedent for purposes of testate succession), but the portion of the decedent’s intestate estate to which Hector would have succeeded passes as if Hector had disclaimed his intestate share. The consequence of a disclaimer by Hector of his intestate share is governed by Section 2-1106(b) [N.D.C.C. § 30.1-10.1-03(2)], which provides that Hector’s intestate share passes to Hector’s descendants by representation.

Example: G died partially intestate. G is survived by brother Hector, Hector’s 3 children (X, Y, and Z), and the child (V) of a deceased sister. G’s will excluded Hector from sharing in G’s intestate estate.

Solution: V takes half of G’s intestate estate, X, Y, and Z split the other half, i.e. they take 1/6 each. Sections 2-103(3) [N.D.C.C. § 30.1-04-03(3)]; 2-106 [N.D.C.C. § 30.1-04-6, repealed], 2-1106(b) [N.D.C.C. § 30.1-10.1-03(2)]. Had Hector not been excluded by G’s will, the share to which Hector would have succeeded would have been 1/2. Under section 2-1106(b) [N.D.C.C. § 30.1-10.1-03(2)], that half, not the whole of G’s intestate estate, is what passes to Hector’s descendants by representation as if Hector had disclaimed the intestate share.

Note that if brother Hector had actually predeceased G, or was treated as if he predeceased G by reason of not surviving G by 120 hours (see section 2-104 [N.D.C.C. § 30.1-04-04]), then no consequence flows from Hector’s disinheritance: V, X, Y, and Z would each take 1/4 of G’s intestate estate under section 2-103(3) [N.D.C.C. § 30.1-04-03(3)] and 2-106 [N.D.C.C. § 30.1-04-06, repealed].

Cross-References.

Descent and distribution of real property subject to homestead estate, see N.D.C.C. § 30-16-04.

Notes to Decisions

Construction.
Disposition of Real Property.
Doctrine of Partial Invalidity.
Exclusions.
Predeceased Beneficiary.

Construction.

Plain language of N.D.C.C. § 30.1-04-01(2) makes it clear that disinheritance of either an individual or a class must be expressed and cannot be implied. West v. Myrvik (In re Estate of Samuelson), 2008 ND 190, 757 N.W.2d 44, 2008 N.D. LEXIS 192 (N.D. 2008).

N.D.C.C. § 30.1-04-01(2) makes it clear that if a decedent excludes an individual’s right to inherit, and the individual survives the decedent, the individual’s heirs are not automatically excluded, because the share passes to the excluded individual’s heirs. West v. Myrvik (In re Estate of Samuelson), 2008 ND 190, 757 N.W.2d 44, 2008 N.D. LEXIS 192 (N.D. 2008).

Disposition of Real Property.

Doctrine of Partial Invalidity.

Because the district court, which applied the doctrine of partial invalidity, gave effect to a portion of a decedent’s will to distribute the decedent’s shares in a ranch, it could not be said the will did not effectively dispose of the shares. The laws of intestacy therefore did not apply. Grenz v. Grenz (In re Estate of Grenz), 2020 ND 189, 948 N.W.2d 320, 2020 N.D. LEXIS 190 (N.D. 2020).

Exclusions.

Trial court did not err in holding that the granddaughters of a decedent’s half-sister inherited the intestate estate of the decedent because even though the decedent expressly excluded the half-sister under the will, it could not be inferred that the decedent intended to exclude the granddaughters; the decedent did not expressly exclude the half-sister’s heirs pursuant to N.D.C.C. § 30.1-04-01(2). West v. Myrvik (In re Estate of Samuelson), 2008 ND 190, 757 N.W.2d 44, 2008 N.D. LEXIS 192 (N.D. 2008).

Predeceased Beneficiary.

Where a will did not include a residuary clause or residuary devise, property devised to a predeceased beneficiary did not pass by will, rather, pursuant to this section it passed by the law of intestate succession to the issue of the decedent’s parents because decedent had no surviving issue or parents. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Because a devise in a will failed due to the fact that the devisee predeceased the decedent, an estate passed under the laws of intestate succession. A trial court erred by awarding a grandmother a portion of a decedent’s estate because the decedent’s wife was entitled to the entire estate through intestate succession, pursuant to N.D.C.C. § 30.1-04-02(1)(a); moreover, the decedent’s will did not expressly disinherit the wife, and the wife did not forfeit her right to receive the entire estate through the laws of intestate succession by not withdrawing her petition for exercise of an elective share since she was allowed to state more than one claim or defense. Hartvickson v. Haugen (In re Estate of Haugen), 2011 ND 28, 794 N.W.2d 448, 2011 N.D. LEXIS 26 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Administration of Estate.

An administrator could reduce real estate to actual possession but he was not required to do so. Territory ex rel. Hall v. Bramble, 5 N.W. 945, 2 Dakota 189, 1880 Dakota LEXIS 2 (Dakota 1880).

Upon death of an intestate, his realty passed immediately to his heirs subject, for purposes of administration, to control of county court and possession of any administrator appointed by that court. Aberle v. Merkel, 70 N.D. 89, 291 N.W. 913, 1940 N.D. LEXIS 150 (N.D. 1940); STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Although an estate was in the progress of administration, an heir of a decedent could maintain an action to determine adverse claims and quiet title to decedent’s real estate provided heir did not interfere with administrator’s possession of property for purposes of administration. Hoffman v. Hoffman's Heirs, 73 N.D. 637, 17 N.W.2d 903, 1945 N.D. LEXIS 80 (N.D. 1945).

Ancestors.

Heirs of deceased intestate occupied place of ancestor as regarded taking of interest in ancestor’s property and received no better right to property than ancestor had. STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Bankruptcy Proceeding.

Law conferred the power and authority upon a county court and, through the court, upon an administrator of an estate, to permit the administrator to continue a proceeding instituted by a deceased former debtor under section 75 of the Bankruptcy Act. North Dakota v. Durupt, 138 F.2d 501, 1943 U.S. App. LEXIS 2555 (8th Cir. N.D. 1943).

Father Not Heir.

Where intestate insured who carried policy for two thousand dollars payable to his estate left a surviving widow but no lineal descendants, and the gross value of the estate did not exceed forty-five hundred dollars, his father was not an heir within meaning of former N.D.C.C. § 26-10-18 (now see N.D.C.C. § 26.1-33-40). Maixner v. Zumpf, 51 N.D. 140, 199 N.W. 183, 1924 N.D. LEXIS 148 (N.D. 1924).

Insurance Policy Not in Will.

Where insured in a policy payable to his estate made a will purporting to dispose of his property, but will made no reference to policy or the avails thereof, and where there was no change of beneficiary, and insured made no contract for the transfer or disposition of such policy or the avails thereof, he manifested an intention that upon his death such insurance policy should be payable to his heirs at law and the avails thereof distributed to them in accordance with the laws of succession. ANDERSON v. NORTHERN & DAKOTA TRUST CO., 67 N.D. 458, 274 N.W. 127, 1937 N.D. LEXIS 102 (N.D. 1937).

Tenancy in Common.

Where intestate owner of real property was survived by more than one heir, descent of the property by operation of law to several heirs created a tenancy in common. STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Law Reviews.

Introduction to Probate and Estate Planning, 74 N.D. L. Rev. 177 (1998).

30.1-04-02. (2-102) Share of spouse.

The intestate share of a decedent’s surviving spouse is:

The entire intestate estate if:
1. No descendant or parent of the decedent survives the decedent; or
2. All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
The first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
The first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.
The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 4; 1995, ch. 322, § 27; 2009, ch. 283, § 2.

Effective Date.

The 2009 amendment of this section by section 2 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Purpose and Scope of 1990 Revisions. This section was revised in 1990 to give the surviving spouse a larger share than the pre-1990 UPC. If the decedent leaves no surviving descendants and no surviving parent or if the decedent does leave surviving descendants but neither the decedent nor the surviving spouse has other descendants, the surviving spouse is entitled to all of the decedent’s intestate estate.

If the decedent leaves no surviving descendants but does leave a surviving parent, the decedent’s surviving spouse receives the first $300,000 plus three-fourths of the balance of the intestate estate.

If the decedent leaves surviving descendants and if the surviving spouse (but not the decedent) has other descendants, and thus the decedent’s descendants are unlikely to be the exclusive beneficiaries of the surviving spouse’s estate, the surviving spouse receives the first $225,000 plus one-half of the balance of the intestate estate. The purpose is to assure the decedent’s own descendants of a share in the decedent’s intestate estate when the estate exceeds $225,000.

If the decedent has other descendants, the surviving spouse receives $150,000 plus one-half of the balance. In this type of case, the decedent’s descendants who are not descendants of the surviving spouse are not natural objects of the bounty of the surviving spouse.

Note that in all the cases where the surviving spouse receives a lump sum plus a fraction of the balance, the lump sums must be understood to be in addition to the probate exemptions and allowances to which the surviving spouse is entitled under Part 4. These can add up to a minimum of $64,500.

Under the pre-1990 Code, the decedent’s surviving spouse received the entire intestate estate only if there were neither surviving descendants nor parents. If there were surviving descendants, the descendants to one-half of the balance of the estate in excess of $50,000 (for example, $25,000 in a $100,000 estate). If there were no surviving descendants, but there was a surviving parent or parents, the parent or parents took that one-half of the balance in excess of $50,000.

2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in paragraph (2) was $200,000, in paragraph (3) was $150,000, and in paragraph (4) was $100,000. To adjust for inflation, these amounts were increased in 2008 to $300,000, $225,000, and $150,000 respectively. The dollar amounts in these paragraphs are subject to annual cost-of-living adjustments under Section 1-109 [not adopted by North Dakota].

References. The theory of this section is discussed in Waggoner, “The Multiple- Marriage Society and Spousal Rights Under the Revised Uniform Probate Code”, 76 Iowa L. Rev. 223, 229-35 (1991).

Empirical studies support the increase in the surviving spouse’s intestate share, reflected in the revisions of this section. The studies have shown that testators in smaller estates (which intestate estates overwhelmingly tend to be) tend to devise their entire estates to their surviving spouses, even when the couple has children. See C. Shammas, M. Salmon & M. Bahlin, Inheritance in America from Colonial Times to the Present 184-85 (1987); M. Sussman, J. Cates & D. Smith, The Family and Inheritance (1970); Browder, “Recent Patterns of Testate Succession in the United States and England”, 67 Mich. L. Rev. 1303, 1307-08 (1969); Dunham, “The Method, Process and Frequency of Wealth Transmission at Death”, 30 U. Chi. L. Rev. 241, 252 (1963); Gibson, “Inheritance of Community Property in Texas—A Need for Reform”, 47 Texas L. Rev. 359, 364-66 (1969); Price, “The Transmission of Wealth at Death in a Community Property Jurisdiction”, 50 Wash. L. Rev. 277, 283, 311-17 (1975). See also Fellows, Simon & Rau, “Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States”, 1978 Am. B. F. Research J. 319, 355-68; Note, “A Comparison of Iowans’ Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes”, 63 Iowa L. Rev. 1041, 1091-92 (1978).

See section 30.1-10-02 for the definition of spouse which controls for purposes of intestate succession.

Notes to Decisions

Division Among Spouse and Children.
Entire Estate.

Division Among Spouse and Children.

District court properly rescinded a deed (due to undue influence) and concluded that the subject minerals passed to a father and then his surviving spouse because the children did not argue to the district court that their mother's estate had a cause of action against the father relating to the conveyance of the Idaho home, assuming without deciding that the mother's intestate estate included all property wherever located, the total value of her estate was less than $50,000 and would pass to the father under the versions of the North Dakota and Idaho statutes that were in effect when she died in 1989, the trial court correctly applied the law to the facts of the case. Fahey v. Fife, 2017 ND 200, 900 N.W.2d 250, 2017 N.D. LEXIS 202 (N.D. 2017).

Entire Estate.

DECISIONS UNDER PRIOR LAW

Adoption Contract.

Where plaintiff was unaware that she was entitled by an adoption contract to a larger share of decedent’s estate than she would receive under will that was being probated in county court and plaintiff’s right to participate in the distribution of the estate had not been finally adjudicated, she did not waive her right to claim larger share provided by the contract by accepting part of proceeds of estate from executrix without a court order. Fish v. Berzel, 101 N.W.2d 548, 1960 N.D. LEXIS 53 (N.D. 1960).

Division Among Spouse and Children.

Decedent’s surviving widow succeeded to a four-twelfths interest and estate in the land owned by him at time of his death, and each of his three daughters and five sons succeeded to a one-twelfth interest and estate in such land. Widow and decedent’s children became tenants in common. STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Upon death of decedent his widow succeeded to a one-third interest in the land owned by him in North Dakota and his four children succeeded to a two-thirds interest therein, or one-sixth interest therein to each. Frandson v. Casey, 73 N.W.2d 436, 1955 N.D. LEXIS 155 (N.D. 1955).

Homestead Estate.

Where surviving wife married and left state with her children, the homestead estate ceased and property descended one-third to surviving wife and two-thirds to children. In re Druhl's Estate, 61 N.D. 168, 237 N.W. 697, 1931 N.D. LEXIS 260 (N.D. 1931).

Insurance Payable to Estate.

Where insured died intestate and insurance was payable to estate, avails passed to deceased heirs at law as determined under laws of succession as applied to amount of avails without reference to value of deceased’s estate; avails of $9,124.82 went to surviving wife where insured left no issue, both his father and mother were dead, and policies were payable to estate. Hill v. Schroeder, 156 N.W.2d 695, 1968 N.D. LEXIS 119 (N.D. 1968).

Collateral References.

Descent and Distribution 52-67.

23 Am. Jur. 2d, Descent and Distribution, §§ 114 et seq.

26B C.J.S. Descent and Distribution, §§ 60-67.

Separation agreement as barring rights of surviving spouse in other’s estate, 34 A.L.R.2d 1020, 1039.

Purchaser: relative rights in real property as between purchasers from or through decedent’s heirs or devisees and unknown surviving spouse, 39 A.L.R.2d 1082.

Construction, application, and effect of statute providing for descent of property of surviving spouse which had been derived from predeceased spouse, 49 A.L.R.2d 391.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 486.

Family settlement of intestate estate, 29 A.L.R.3d 174.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.

30.1-04-03. (2-103) Share of heirs other than surviving spouse.

Any part of the intestate estate not passing to a decedent’s surviving spouse under section 30.1-04-02, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:

To the decedent’s descendants by representation.
If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent.
If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation.
If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
1. Half to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
2. Half to the decedent’s maternal grandparents equally if both survive, or to the surviving maternal grandparent, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation.
If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner as described in subsection 4.
If there is no surviving spouse, descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, but the intestate decedent has one deceased spouse who has one or more descendants who survive the decedent, to those descendants by representation or has more than one deceased spouse who has one or more descendants who survive the decedent, the estate is divided into as many equal shares as there are deceased spouses, each share passing to those descendants by representation.

Source:

S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 2; 1993, ch. 334, § 5; 1995, ch. 322, § 27; 2009, ch. 283, § 3.

Effective Date.

The 2009 amendment of this section by section 3 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

This section provides for inheritance by descendants of the decedent, parents and their descendants, and grandparents and collateral relatives descended from grandparents; in line with modern policy, it eliminates more remote relatives tracing through great-grandparents.

1990 Revisions. The 1990 revisions were stylistic and clarifying, not substantive. The pre-1990 version of this section contained the phrase “if they are all of the same degree of kinship to the decedent they take equally (etc.).” That language was removed. It was unnecessary and confusing because the system of representation in Section 2-106 [N.D.C.C. § 30.1-04-06, repealed] gives equal shares if the decedent’s descendants are all of the same degree of kinship to the decedent.

The word “descendants” replaced the word “issue” in this section and throughout the 1990 revisions of Article II. The term issue is a term of art having a biological connotation. Now that inheritance rights, in certain cases, are extended to adopted children, the term descendants is a more appropriate term.

2008 Revisions. In addition to making a few stylistic changes, which were not intended to change meaning, the 2008 revisions divided this section into two subsections. New subsection (b) [adopted as subparagraph (6)] grants inheritance rights to descendants of the intestate’s deceased spouse(s) who are not also descendants of the intestate. The term deceased spouse refers to an individual to whom the intestate was married at the individual’s death.

Notes to Decisions

Application.
Exclusions.
Indentured Child.
Predeceased Beneficiary.

Application.

Exclusions.

Trial court did not err in holding that the granddaughters of a decedent’s half-sister inherited the intestate estate of the decedent because even though the decedent expressly excluded the half-sister under the will, it could not be inferred that the decedent intended to exclude the granddaughters; the granddaughters were the only descendants of the decedent’s parents. West v. Myrvik (In re Estate of Samuelson), 2008 ND 190, 757 N.W.2d 44, 2008 N.D. LEXIS 192 (N.D. 2008).

Indentured Child.

Indenture agreement between prospective adoptive parents and foundling home which permitted the indentured child to enforce provisions of the indenture allowing inheritance by the child from the prospective parents did not create the same relationship created by statutory adoption; therefore, the natural children of the prospective parents had no inheritance rights under the laws of intestate succession to the estate of the indentured child upon his death without lineal descendants. Geiger v. Estate of Connelly, 271 N.W.2d 570, 1978 N.D. LEXIS 180 (N.D. 1978).

Predeceased Beneficiary.

Where a will did not include a residuary clause or residuary devise, property devised to a predeceased beneficiary did not pass by will, rather, pursuant to section 30.1-04-01, passed by the law of intestate succession to the issue of the decedent’s parents because decedent had no surviving issue or parents. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Children As Only Heirs.

Where a decedent left ten children as his only heirs at law, each child succeeded to an undivided one-tenth interest in the land and estate owned by decedent at time of his death and they succeeded to the title to the real property as tenants in common. Ellison v. Strandback, 62 N.W.2d 95, 1953 N.D. LEXIS 90 (N.D. 1953).

Determination of Heirs.

Division Among Husband and Children.

Where decedent was survived by a husband and a son and daughter, each succeeded to undivided one-third interest in her real estate, and upon the son’s death, his surviving wife and his surviving son each succeeded to one-half of his interest in the property. Morrison v. Hawksett, 64 N.W.2d 786, 1954 N.D. LEXIS 79 (N.D. 1954).

Father.

Where intestate insured who carried an insurance policy for two thousand dollars payable to his estate left a surviving widow but no lineal descendants, and the gross value of the estate did not exceed forty-five hundred dollars, his father was not an heir within meaning of former section 26-10-18 (now see section 26.1-33-40). Maixner v. Zumpf, 51 N.D. 140, 199 N.W. 183, 1924 N.D. LEXIS 148 (N.D. 1924).

Insurance Payable to Estate.

In determining who are heirs at law and who take as such under life insurance policies made payable to estate or personal representatives of insured, resort must be had to laws of succession. ANDERSON v. NORTHERN & DAKOTA TRUST CO., 67 N.D. 458, 274 N.W. 127, 1937 N.D. LEXIS 102 (N.D. 1937).

Insurance Payment Directed by Will.

The avails of a life insurance policy belonged to youngest sister of deceased testator where his will provided that in the event of his death prior to the death of said named youngest sister, all of his life insurance be paid to her. Jorgensen v. DeViney, 57 N.D. 63, 222 N.W. 464 (1928), explained, Anderson v. Northern & Dakota Trust Co., 65 N.D. 721, 261 N.W. 759 (1935) and ANDERSON v. NORTHERN & DAKOTA TRUST CO., 67 N.D. 458, 274 N.W. 127, 1937 N.D. LEXIS 102 (N.D. 1937).

Stepfather.

Under former law, stepfather of a deceased intestate did not inherit, and, where deceased carried a policy of war risk insurance, his stepfather, not designated as a beneficiary, had no interest therein. Richmond v. United States, 6 F.2d 143, 1925 U.S. App. LEXIS 1975 (5th Cir. Ala. 1925).

Collateral References.

Descent and Distribution 20-51.

23 Am. Jur. 2d, Descent and Distribution, §§ 66 et seq.

26B C.J.S. Descent and Distribution, §§ 23-59.

Nieces and nephews: descent and distribution to nieces and nephews as per stirpes or per capita, 19 A.L.R.2d 191.

Time of ascertainment of settlor’s heirs and distributees who take on failure of the trust, 27 A.L.R.2d 691.

Cousins, descent and distribution to and among, 54 A.L.R.2d 1009, 1017.

Uncles and aunts, descent and distribution to and among, 55 A.L.R.2d 643, 648.

Stepparents: descent and distribution from stepparents to stepchildren or vice versa, 63 A.L.R.2d 303.

Adopted child, right to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.

30.1-04-03.1. (2-113) Individuals related to decedent through two lines.

An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Source:

S.L. 1977, ch. 295, § 2; 1993, ch. 334, § 6; 1995, ch. 322, § 27.

Editorial Board Comment.

This section prevents double inheritance. It has potential application in a case in which a deceased person’s brother or sister marries the spouse of the decedent and adopts a child of the former marriage; if the adopting parent died thereafter leaving the child as a natural and adopted grandchild of its grandparents, this section prevents the child from taking as an heir from the grandparents in both capacities.

30.1-04-04. (2-104) Requirement that heir survive decedent for one hundred twenty hours — Individual in gestation.

For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection 2:
1. An individual who was born before a decedent’s death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual who was born before the decedent’s death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period.
2. An individual who was in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual who was in gestation at the decedent’s death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
This section does not apply if it would result in a taking of the intestate estate by the state under section 30.1-04-05.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 7; 1995, ch. 322, § 27; 2009, ch. 283, § 4.

Effective Date.

The 2009 amendment of this section by section 4 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

This section avoids multiple administrations and in some instances prevents the property from passing to persons not desired by the decedent. See Halbach & Waggoner, The UPC’s New Survivorship and Antilapse Provisions, 55 Alb. L. Rev. 1091, 1094-1099 (1992). The 120-hour period will not delay the administration of a decedent’s estate because Sections 3-302 [N.D.C.C. § 30.1-14-02] and 3-307 [N.D.C.C. § 30.1-14-07] prevent informal issuance of letters for a period of five days from death. Subsection (b) [subsection (2)] prevents the survivorship requirement from defeating inheritance by the last eligible relative of the intestate who survives for any period.

In the case of a surviving spouse who survives the 120-hour period, the 120- hour requirement of survivorship does not disqualify the spouse’s intestate share for the federal estate-tax marital deduction. See Int.Rev.Code § 2056(b)(3).

2008 Revisions. In 2008, this section was reorganized, revised, and combined with former Section 2-108 [N.D.C.C. § 30.1-04-08]. What was contained in former Section 2-104 now appears as subsections (a)(1) and (b) [subsections (1)(a) and (2)]. What was contained in former Section 2-108 now appears as subsection (a)(2) [subsection (1)(b)]. Subsections (a)(1) and (a)(2) [subsections (1)(a) and (1)(b)] now distinguish between an individual who was born before the decedent’s death and an individual who was in gestation at the decedent’s death. With respect to an individual who was born before the decedent’s death, it must be established by clear and convincing evidence that the individual survived the decedent by 120 hours. For a comparable provision applicable to wills and other governing instruments, see Section 2-702 [N.D.C.C. § 30.1-09.1-02]. With respect to an individual who was in gestation at the decedent’s death, it must be established by clear and convincing evidence that the individual lived for 120 hours after birth.

Collateral References.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

30.1-04-05. (2-105) No taker.

If there is no taker under the provisions of this title, the intestate estate passes to the state for the support of the common schools and an action for the recovery of such property and to reduce it into the possession of the state or for its sale and conveyance may be brought by the attorney general or by the state’s attorney in the district court of the county in which the property is situated.

Source:

S.L. 1973, ch. 257, § 1.

DECISIONS UNDER PRIOR LAW

Jurisdiction.

Under C.L. 1913, §§ 5760, 8175, 8525, 8846, 8849, the county court was without jurisdiction to determine escheats. Delaney v. State, 42 N.D. 630, 174 N.W. 290, 1919 N.D. LEXIS 187 (N.D. 1919).

Petition by United States.

Petition by United States constituted an objection to any attempt to dispose of moneys in hands of administrator as assets of the estate. In re Gonsky's Estate, 79 N.D. 123, 55 N.W.2d 60, 1952 N.D. LEXIS 104 (N.D. 1952).

Property of United States.

Where property and moneys directed to be paid to the state treasurer belonged to the United States, the county court had no authority to direct payment to the state treasurer. In re Gonsky's Estate, 79 N.D. 123, 55 N.W.2d 60, 1952 N.D. LEXIS 104 (N.D. 1952).

Collateral References.

Escheat 4.

27 Am. Jur. 2d, Escheat, § 13.

30A C.J.S. Escheat, §§ 1, 3, 15.

Illegitimate, escheat of estate of, 48 A.L.R.2d 759, 778.

Other state, escheat of personal property of intestate domiciled or resident in, 50 A.L.R.2d 1375.

30.1-04-06. (2-106) Representation. [Repealed]

Repealed by S.L. 1995, ch. 322, § 26.

30.1-04-07. (2-107) Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Source:

S.L. 1973, ch. 257, § 1.

Collateral References.

Descent and Distribution 22, 35, 41.

23 Am. Jur. 2d, Descent and Distribution, § 71.

26B C.J.S. Descent and Distribution, §§ 29, 42, 46.

Cousins: descent and distribution to and among cousins as affected by whole blood or half blood relationship, 54 A.L.R.2d 1009, 1017.

Uncles and aunts of the whole blood and of the half blood, descent and distribution to and among, 55 A.L.R.2d 643, 648.

Descent and distribution: rights of inheritance as between kindred of whole or half blood, 47 A.L.R.4th 561.

30.1-04-08. (2-108) Reserved.

Source:

S.L. 2009, ch. 283, § 5.

Effective Date.

The 2009 amendment of this section by section 5 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Legislative Note. Section 2-108 [this section] is reserved for possible future use. The 2008 amendments moved the content of this section to section 2-104(a)(2) [N.D.C.C. § 30.1-04-04(1)(b)].

30.1-04-09. (2-114) Parent barred from inheriting in certain circumstances.

A parent is barred from inheriting from or through a child of the parent if the parent’s parental rights were terminated and the parent-child relationship was not judicially re-established or the child died before reaching eighteen years of age and there is clear and convincing evidence that immediately before the child’s death the parental rights of the child’s parent could have been terminated under other law of this state on the basis of nonsupport, abandonment, abuse, or neglect, or other actions or inactions of the parent toward the child.
For purposes of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.

Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 1; 1993, ch. 334, § 10; 1995, ch. 322, § 27; 2009, ch. 283, § 6.

Effective Date.

The 2009 amendment of this section by section 6 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

2008 Revisions. In 2008, this section replaced former Section 2-114(c), which provided: “(c) Inheritance from or through a child by either natural parent or his [or her] kindred is precluded unless that natural parent has openly treated the child as his [or hers], and has not refused to support the child.”

Subsection (a)(1) [paragraph (1)] recognizes that a parent whose parental rights have been terminated is no longer legally a parent.

Subsection (a)(2) [paragraph (1)] addresses a situation in which a parent’s parental rights were not actually terminated. Nevertheless, a parent can still be barred from inheriting from or through a child if the child died before reaching [18] years of age and there is clear and convincing evidence that immediately before the child’s death the parental rights of the parent could have been terminated under law of this state other than this [code], but only if those parental rights could have been terminated on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child.

Statutes providing the grounds for termination of parental rights include: Ariz. Rev. Stat. Ann. § 8-533; Conn. Gen. Stat. § 45a-717; Del. Code Ann. tit. 13 § 1103; Fla. Stat. Ann. § 39.806; Iowa Code § 600A.8; Kan. Stat. Ann. § 38-2269; Mich. Comp. L. Ann. § 712A.19b; Minn. Stat. Ann. § 260C.301; Miss. Code Ann. § 93-15-103; Mo. Rev. Stat. § 211.447; Tex. Fam. Code §§ 161.001 to .007.

Notes to Decisions

Adopted Child.

DECISIONS UNDER PRIOR LAW

Action by Child.

Prior to its amendment in 1977, this section permitted a child born out of wedlock to bring an action after the alleged father’s death to determine rights of inheritance; the child had to show decedent’s paternity by clear and convincing proof; evidence that decedent had lived with child’s mother both before and after child’s birth, had orally acknowledged child as his and had provided support for her constituted sufficiently “clear and convincing” proof; the child’s right to bring an action was not dependent on whether the mother had taken any action to establish paternity by written acknowledgment or judicial determination. C.L.W. v. M.J., 254 N.W.2d 446, 1977 N.D. LEXIS 283 (N.D. 1977).

Adoption.

The right of an adopted child of inheriting from its natural parents under former section was not limited by former provisions dealing with adoption. Bannerman v. Close, 81 N.W.2d 259 (N.D. 1957).

Inheritance by Illegitimate Child.

An illegitimate child, if his father had acknowledged him by an instrument in writing properly executed, could inherit from father but not from lineal or collateral kindred. Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856, 1899 N.D. LEXIS 22 (N.D. 1899).

Proof of Paternity.

Letters expressing decedent’s doubt regarding his paternity of a child and not signed in presence of any witness did not constitute an “acknowledgment” that deceased was father and were insufficient to entitle child as a claimant to inherit a share of estate. In re Berg's Estate, 72 N.D. 52, 4 N.W.2d 575, 1942 N.D. LEXIS 111 (N.D. 1942).

Collateral References.

Adoption 21-23; Bastards 95, 100-102.

2 Am. Jur. 2d, Adoption, §§ 174 et seq.

Conflict of laws as to inheritance from or through adoptive parent, 18 A.L.R.2d 960.

Recognition: what amounts to recognition within statutes affecting the status or rights of illegitimate, 33 A.L.R.2d 705.

Adoption as affecting right of inheritance through or from natural parent or other natural kin, 37 A.L.R.2d 333.

Right of adopted child to inherit from kindred of adoptive parent, 43 A.L.R.2d 1183.

Inheritance by illegitimate, 48 A.L.R.2d 759, 77860 A.L.R.2d 1182.

Conflict of laws as to inheritance from or through adopted person, 52 A.L.R.2d 1228.

Mother’s legitimate children, inheritance by illegitimate from, 60 A.L.R.2d 1182.

Conflict of laws as to adoption, as affecting descent and distribution of decedent’s estate, 87 A.L.R.2d 1240.

Conflict of laws as to legitimacy or legitimation or as to rights of illegitimates, as affecting descent and distribution of decedent’s estate, 87 A.L.R.2d 1274.

Mother’s ancestors or collateral kindred, inheritance by illegitimate from or through, 97 A.L.R.2d 1101.

Mother’s other illegitimate children, inheritance by illegitimate from, 7 A.L.R.3d 677.

Family allowance: eligibility of illegitimate child to receive family allowance out of estate of his deceased father, 12 A.L.R.3d 1140.

Adopted child, right to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

30.1-04-10. (2-109) Advancements.

If an individual dies intestate as to all or a portion of the individual’s estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
For purposes of subsection 1, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.
If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 11; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose of the 1990 Revisions. This section was revised so that an advancement can be taken into account with respect to the intestate portion of a partially intestate estate.

Other than these revisions, and a few stylistic and clarifying amendments, the original content of the section is maintained, under which the common law relating to advancements is altered by requiring written evidence of the intent that an inter-vivos gift be an advancement.

The statute is phrased in terms of the donee being an heir “at the decedent’s death.” The donee need not be a prospective heir at the time of the gift. For example, if the intestate, G, made an inter-vivos gift intended to be an advancement to a grandchild at a time when the intestate’s child who is the grandchild’s parent is alive, the grandchild would not then be a prospective heir. Nevertheless, if G’s intent that the gift be an advancement is contained in a written declaration or acknowledgment as provided in subsection (a) [subsection (1)], the gift is regarded as an advancement if G’s child (who is the grandchild’s parent) predeceases G, making the grandchild an heir.

To be an advancement, the gift need not be an outright gift; it can be in the form of a will substitute, such as designating the donee as the beneficiary of the intestate’s life-insurance policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.

Most inter-vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan. If the donor intends that any transfer during the donor’s lifetime be deducted from the donee’s share of his estate, the donor may either execute a will so providing or, if he or she intends to die intestate, charge the gift as an advance by a writing within the present section.

This section applies to advances to the decedent’s spouse and collaterals (such as nephews and nieces) as well as to descendants.

Computation of Shares—Hotchpot Method. This section does not specify the method of taking an advancement into account in distributing the decedent’s intestate estate. That process, called the hotchpot method, is provided by the common law. The hotchpot method is illustrated by the following example.

Example: G died intestate, survived by his wife (W) and his three children (A, B, and C) by a prior marriage. G’s probate estate is valued at $190,000. During his lifetime, G had advanced A $50,000 and B $10,000. G memorialized both gifts in a writing declaring his intent that they be advancements.

Solution. The first step in the hotchpot method is to add the value of the advancements to the value of G’s probate estate. This combined figure is called the hotchpot estate.

In this case, G’s hotchpot estate preliminarily comes to $250,000 ($190,000 + $50,000 + $10,000). W’s intestate share of a $250,000 estate under Section 2-102(4) is $200,000 ($150,000 plus 1/2 of $100,000). The remaining $50,000 is divided equally among A, B, and C, or $16,667 each. This calculation reveals that A has received an advancement greater than the share to which he is entitled; A can retain the $50,000 advancement, but is not entitled to any additional amount. A and A’s $50,000 advancement are therefore disregarded and the process is begun over.

Once A and A’s $50,000 advancement are disregarded, G’s revised hotchpot estate is $200,000 ($190,000 + $10,000). W’s intestate share is $175,000 ($150,000 plus 1/2 of $50,000). The remaining $25,000 is divided equally between B and C, or $12,500 each. From G’s intestate estate, B receives $2,500 (B already having received $10,000 of his ultimate $12,500 share as an advancement); and C receives $12,500. The final division of G’s probate estate is $175,000 to W, zero to A, $2,500 to B, and $12,500 to C.

Effect if Advancee Predeceases the Decedent; Disclaimer. If a decedent had made an advancement to a person who predeceased the decedent, the last sentence of Section 2-109 provides that the advancement is not taken into account in computing the intestate share of the recipient’s descendants (unless the decedent’s declaration provides otherwise). The rationale is that there is no guarantee that the recipient’s descendants received the advanced property or its value from the recipient’s estate.

To illustrate the application of the last sentence of Section 2-109, consider this case: During her lifetime, G had advanced $10,000 to her son, A. G died intestate, leaving a probate estate of $50,000. G was survived by her daughter, B, and by A’s child, X. A predeceased G.

G’s advancement to A is disregarded. G’s $50,000 intestate estate is divided into two equal shares, half ($25,000) going to B and the other half ($25,000) going to A’s child, X.

Now, suppose that A survived G. In this situation, of course, the advancement to A is taken into account in the division of G’s intestate estate. Under the hotchpot method, illustrated above, G’s hotchpot estate is $60,000 (probate estate of $50,000 plus advancement to A of $10,000). A takes half of this $60,000 amount, or $30,000, but is charged with already having received $10,000 of it. Consequently, A takes only a Cr share ($20,000) of G’s intestate estate, and B takes the remaining 3/5 share ($30,000).

Note that A cannot use a disclaimer under Section 2-1105 [N.D.C.C. § 30.1-10.1-02] in effect to give his child, X, a larger share than A was entitled to. Under Section 2-1106(b)(3)(A) [N.D.C.C. § 30.1-10.1-03(4)], the effect of a disclaimer by A is that the disclaimant’s “interest” devolves to A’s descendants as if the disclaimant had predeceased the decedent. The “interest” that A renounced was a right to a Cr share of G’s estate, not a 1/2 share. Consequently, A’s Cr share ($20,000) passes to A’s child, X.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (§ 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (§§ 2-1101 to 2-1117) [N.D.C.C. ch. 30.1-10.1]. The statutory references in this Comment to former Section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.

2008 Cost-of-Living Adjustment. As revised in 1990, the dollar amount in Section 2-102(a)(4) [N.D.C.C. § 30.1-04-02(4)] was $100,000. To adjust for inflation, that amount was increased in 2008 to $150,000. The Example in this Comment was revised in 2008 to reflect that increase.

DECISIONS UNDER PRIOR LAW

Advancement Not Indebtedness.

Advancement did not involve an indebtedness at all, but both could be deducted from a distributee’s share of the estate. Stenson v. H. S. Halvorson Co., 28 N.D. 151, 147 N.W. 800, 1914 N.D. LEXIS 99 (N.D. 1914).

Collateral References.

Descent and Distribution 93-118.

3 Am. Jur. 2d, Advancements, § 1 et seq.

26B C.J.S. Descent and Distribution, §§ 95-104.

Presumption and burden of proof with respect to advancement, 31 A.L.R.2d 1036.

Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.

Inter vivos gift of remainder in chattel, 83 A.L.R.4th 966.

Check as evidencing advancement, 74 A.L.R.5th 491.

30.1-04-11. (2-110) Debts to decedent.

A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor’s descendants.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 12; 1995, ch. 322, § 27.

Editorial Board Comment.

This supplements the content of section 30.1-20-03, Right of Retainer.

Cross-References.

Claims against decedent, see N.D.C.C. § 30.1-12-04.

DECISIONS UNDER PRIOR LAW

Payment of Debts.

Heirs had no right to decedent’s property until his debts were paid. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

Collateral References.

Descent and Distribution 80.

26BA C.J.S. Descent and Distribution, § 70.

30.1-04-12. (2-111) Alienage.

No individual is disqualified to take as an heir because the individual or an individual through whom that individual claims is or has been an alien.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 13; 1995, ch. 322, § 27.

Editorial Board Comment.

The purpose of this section is to eliminate the ancient rule that an alien cannot acquire or transmit land by descent, a rule based on the feudal notions of the obligations of the tenant to the King. Although there never was a corresponding rule as to personalty, the present section is phrased in light of the basic premise of the Code that distinctions between real and personal property should be abolished.

Collateral References.

Aliens 9, 14.

3B Am. Jur. 2d, Aliens and Citizens, §§ 2074, 2075.

3 C.J.S. Aliens, §§ 101, 102, 107-109, 143,144,150, 153-158..

30.1-04-13. (2-112) Dower and curtesy abolished.

The estates of dower and curtesy are abolished.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 14; 1995, ch. 322, § 27.

Editorial Board Comment.

The provisions of this Code replace the common law concepts of dower and curtesy and their statutory counterparts. Those estates provided both a share in intestacy and a protection against disinheritance.

In states which have previously abolished dower and curtesy, or where those estates have never existed, the above section should be omitted.

Cross-References.

Dower and curtesy abolished, see N.D.C.C. § 14-07-09.

30.1-04-14. (2-115) Definitions.

In sections 30.1-04-14 through 30.1-04-20:

“Adoptee” means an individual who is adopted.
“Assisted reproduction” means a method of causing pregnancy other than sexual intercourse.
“Divorce” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage.
“Functioned as a parent of the child” means behaving toward the child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, such as fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as regular members of that household.
“Genetic father” means the man whose sperm fertilized the egg of a child’s genetic mother. If the father-child relationship is established under the presumption of paternity under subdivision a, b, or c of subsection 2 of section 14-20-07, the term means only the man for whom that relationship is established.
“Genetic mother” means the woman whose egg was fertilized by the sperm of the child’s genetic father.
“Genetic parent” means a child’s genetic father or genetic mother.
“Incapacity” means the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.
“Relative” means a grandparent or a descendant of a grandparent.

Source:

S.L. 2009, ch. 283, § 7.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

Scope. This section sets forth definitions that apply for purposes of the intestacy rules contained in Subpart 2 (Parent-Child Relationship) [N.D.C.C. §§ 30.1-04-14–30.1-04-21].

Definition of “Adoptee”. The term “adoptee” is not limited to an individual who is adopted as a minor but includes an individual who is adopted as an adult.

Definition of “Assisted Reproduction”. The definition of “assisted reproduction” is copied from the Uniform Parentage Act § 102. Current methods of assisted reproduction include intrauterine insemination (previously and sometimes currently called artificial insemination), donation of eggs, donation of embryos, in-vitro fertilization and transfer of embryos, and intracytoplasmic sperm injection.

Definition of “Functioned as a Parent of the Child”. The term “functioned as a parent of the child” is derived from the Restatement (Third) of Property: Wills and Other Donative Transfers. The Reporter’s Note No. 4 to § 14.5 of the Restatement lists the following parental functions:

Custodial responsibility refers to physical custodianship and supervision of a child. It usually includes, but does not necessarily require, residential or overnight responsibility.Decisionmaking responsibility refers to authority for making significant life decisions on behalf of the child, including decisions about the child’s education, spiritual guidance, and health care.Caretaking functions are tasks that involve interaction with the child or that direct, arrange, and supervise the interaction and care provided by others. Caretaking functions include but are not limited to all of the following:(a) satisfying the nutritional needs of the child, managing the child’s bedtime and wake-up routines, caring for the child when sick or injured, being attentive to the child’s personal hygiene needs including washing, grooming, and dressing, playing with the child and arranging for recreation, protecting the child’s physical safety, and providing transportation;(b) directing the child’s various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation;(c) providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to the child’s needs for behavioral control and self-restraint;(d) arranging for the child’s education, including remedial or special services appropriate to the child’s needs and interests, communicating with teachers and counselors, and supervising homework;(e) helping the child to develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members;(f) arranging for health-care providers, medical follow-up, and home health care;(g) providing moral and ethical guidance;(h) arranging alternative care by a family member, babysitter, or other child-care provider or facility, including investigation of alternatives, communication with providers, and supervision of care.Parenting functions are tasks that serve the needs of the child or the child’s residential family. Parenting functions include caretaking functions, as defined [above], and all of the following additional functions:(a) providing economic support;(b) participating in decisionmaking regarding the child’s welfare;(c) maintaining or improving the family residence, including yard work, and house cleaning;(d) doing and arranging for financial planning and organization, car repair and maintenance, food and clothing purchases, laundry and dry cleaning, and other tasks supporting the consumption and savings needs of the household;(e) performing any other functions that are customarily performed by a parent or guardian and that are important to a child’s welfare and development.

Ideally, a parent would perform all of the above functions throughout the child’s minority. In cases falling short of the ideal, the trier of fact must balance both time and conduct. The question is, did the individual perform sufficient parenting functions over a sufficient period of time to justify concluding that the individual functioned as a parent of the child. Clearly, insubstantial conduct, such as an occasional gift or social contact, would be insufficient. Moreover, merely obeying a child support order would not, by itself, satisfy the requirement. Involuntarily providing support is inconsistent with functioning as a parent of the child.

The context in which the question arises is also relevant. If the question is whether the individual claiming to have functioned as a parent of the child inherits from the child, the court might require more substantial conduct over a more substantial period of time than if the question is whether a child inherits from an individual whom the child claims functioned as his or her parent.

Definition of “Genetic Father”. The term “genetic father” means the man whose sperm fertilized the egg of a child’s genetic mother. If the father-child relationship is established under the presumption of paternity recognized by the law of this state, the term means only the man for whom that relationship is established. As stated in the Legislative Note, a state that has enacted the Uniform Parentage Act (2000, as amended) should insert a reference to Section 201(b)(1), (2), or (3) of that Act [North Dakota has done so].

Definition of “Relative”. The term “relative” does not include any relative no matter how remote but is limited to a grandparent or a descendant of a grandparent, as determined under this subpart 2.

Notes to Decisions

Functioned As A Parent.

Estate representative’s contention had to be rejected that the adopted woman was prohibited from inheriting from decedent, who was the mother of the adopted woman’s biological father, because the biological father did not act as the adopted woman’s father before the adopted woman turned 18-years-old, as required by N.D.C.C. § 30.1-09.1-05(3). Although the biological father did not act as a parent towards the adopted woman between the adopted woman’s ages of three and 15-years-old, the biological father and adopted woman reconciled when the adopted woman was 15-years-old, and the trial court’s finding that the biological father then “functioned as a parent of the child” as defined under N.D.C.C. § 30.1-04-14(4) was not clearly erroneous under N.D. R. Civ. P. 52(a). Kraft v. Ramos (In re Estate of Boehm), 2012 ND 104, 816 N.W.2d 793, 2012 N.D. LEXIS 93 (N.D. 2012).

30.1-04-15. (2-116) Parent-child relationship — Effect.

Except as otherwise provided in subsections 2 through 4 of section 30.1-04-18, if a parent-child relationship exists or is established under sections 30.1-04-14 through 30.1-04-20, the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession.

Source:

S.L. 2009, ch. 283, § 8.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment

Scope. This section provides that if a parent-child relationship exists or is established under any section in subpart 2, the consequence is that the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession by, from, or through the parent and the child. The exceptions in Section 2-119(b) through (e) [N.D.C.C. § 30.1-04-18(2)–(5)] refer to cases in which a parent-child relationship exists but only for the purpose of the right of an adoptee or a descendant of an adoptee to inherit from or through one or both genetic parents.

30.1-04-16. (2-117) Parent-child relationship — No distinction based on marital status.

Except as otherwise provided in section 30.1-04-09, 30.1-04-18, 30.1-04-19, or 30.1-04-20, a parent-child relationship exists between a child and the child’s genetic parents, regardless of their marital status.

Source:

S.L. 2009, ch. 283, § 9.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment

Scope . This section, adopted in 2008, provides the general rule that a parent-child relationship exists between a child and the child’s genetic parents, regardless of the parents’ marital status. Exceptions to this general rule are contained in Sections 2-114 [N.D.C.C. § 30.1-04-09] (Parent Barred from Inheriting in Certain Circumstances), 2-119 [N.D.C.C. § 30.1-04-18](Adoptee and Adoptee’s Genetic Parents), 2-120 [N.D.C.C. § 30.1-04-19] (Child Conceived by Assisted Reproduction Other than Child Born to Gestational Carrier), and 2-121 [N.D.C.C. § 30.1-04-20] (Child Born to Gestational Carrier).

This section replaces former Section 2-114(a), which provided: “(a) Except as provided in subsections (b) and (c), for purposes of intestate succession by, through, or from a person, an individual is the child of his [or her] natural parents, regardless of their marital status. The parent and child relationship may be established under [the Uniform Parentage Act] [applicable state law] [insert appropriate statutory reference].”

Defined Terms. Genetic parent is defined in Section 2-115 [N.D.C.C. § 30.1-04-14] as the child’s genetic father or genetic mother. Genetic mother is defined as the woman whose egg was fertilized by the sperm of a child’s genetic father. Genetic father is defined as the man whose sperm fertilized the egg of a child’s genetic mother.

30.1-04-17. (2-118) Parent-child relationship — Adoptee and adoptee’s adoptive parent or parents.

A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.
For purposes of subsection 1:
1. An individual who is in the process of being adopted by a married couple when one of the spouses dies is treated as adopted by the deceased spouse if the adoption is subsequently granted to the decedent’s surviving spouse.
2. A child of a genetic parent who is in the process of being adopted by a genetic parent’s spouse when the spouse dies is treated as adopted by the deceased spouse if the genetic parent survives the deceased spouse by one hundred twenty hours.
If, after a parent-child relationship is established between a child of assisted reproduction and a parent under section 30.1-04-19 or between a gestational child and a parent under section 30.1-04-20, the child is in the process of being adopted by the parent’s spouse when that spouse dies, the child is treated as adopted by the deceased spouse for purposes of subdivision b of subsection 2.

Source:

S.L. 2009, ch. 283, § 10.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment

2008 Revisions. In 2008, this section and Section 2-119 [N.D.C.C. § 30.1-04-18] replaced former Section 2-114(b), which provided: “(b) An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent”. The 2008 revisions divided the coverage of former Section 2-114(b) into two sections. Subsection (a) of this section covered that part of former Section 2-114(b) that provided that an adopted individual is the child of his or her adopting parent or parents. Section 2-119(a) and (b)(1) [N.D.C.C. § 30.1-04-18(1) and (2)(a)] covered that part of former Section 2-114(b) that provided that an adopted individual is not the child of his natural parents, but adoption of a child by the spouse of either natural parent has no effect on the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.

The 2008 revisions also added subsections (b)(2) and (c) [subsections (2)(b) and (3)], which are explained below.

Data on Adoptions . Official data on adoptions are not regularly collected. Partial data are sometimes available from the Children’s Bureau of the U.S. Department of Health and Human Services, the U.S. Census Bureau, and the Evan B. Donaldson Adoption Institute.

For an historical treatment of adoption, from ancient Greece, through the Middle Ages, 19th- and 20th-century America, to open adoption and international adoption, see Debora L. Spar, The Baby Business ch. 6 (2006) and sources cited therein.

Defined Term. Adoptee is defined in Section 2-115 [N.D.C.C. § 30.1-04-14] as an individual who is adopted. The term is not limited to an individual who is adopted as a minor but includes an individual who is adopted as an adult.

Subsection (a) [subsection (1)]: Parent-Child Relationship Between Adoptee and Adoptive Parent or Parents. Subsection (a) states the general rule that adoption creates a parent-child relationship between the adoptee and the adoptee’s adoptive parent or parents.

Subsection (b)(1) [subsection (2)(a)]: Individual in Process of Being Adopted by Married Couple. If the spouse who subsequently died had filed a legal proceeding to adopt the individual before the spouse died, the individual is “in the process of being adopted” by the deceased spouse when the spouse died. However, the phrase “in the process of being adopted” is not intended to be limited to that situation, but is intended to grant flexibility to find on a case by case basis that the process commenced earlier.

Subsection (b)(2) [subsection (2)(b)]: Stepchild in Process of Being Adopted by Stepparent. If the stepparent who subsequently died had filed a legal proceeding to adopt the stepchild before the stepparent died, the stepchild is “in the process of being adopted” by the deceased stepparent when the stepparent died. However, the phrase “in the process of being adopted” is not intended to be limited to that situation, but is intended to grant flexibility to find on a case by case basis that the process commenced earlier.

Subsection (c) [subsection (3)]: Child of Assisted Reproduction or Gestational Child in Process of Being Adopted. Subsection (c) [subsection (3)] provides that if, after a parent-child relationship is established between a child of assisted reproduction and a parent under Section 2-120 [N.D.C.C. § 30.1-04-19] or between a gestational child and a parent under Section 2-121 [N.D.C.C. § 30.1-04-20], the child is in the process of being adopted by the parent’s spouse when that spouse dies, the child is treated as adopted by the deceased spouse for the purpose of subsection (b)(2) [subsection (2)(a)]. An example would be a situation in which an unmarried mother or father is the parent of a child of assisted reproduction or a gestational child, and subsequently marries an individual who then begins the process of adopting the child but who dies before the adoption becomes final. In such a case, subsection (c) [subsection (3)] provides that the child is treated as adopted by the deceased spouse for the purpose of subsection (b)(2) [subsection (2)(b)]. The phrase “in the process of being adopted” carries the same meaning under subsection (c) [subsection (3)] as it does under subsection (b)(2) [subsection (2)(b)].

30.1-04-18. (2-119) Parent-child relationship — Adoptee and adoptee’s genetic parents.

Except as otherwise provided in subsections 2 through 4, a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.
A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:
1. The genetic parent whose spouse adopted the individual; and
2. The other genetic parent, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.
A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent.
A parent-child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent.
If, after a parent-child relationship is established between a child of assisted reproduction and a parent or parents under section 30.1-04-19 or between a gestational child and a parent or parents under section 30.1-04-20, the child is adopted by another or others, the child’s parent or parents under section 30.1-04-19 or 30.1-04-20 are deemed the child’s genetic parent or parents for purposes of this section.

Source:

S.L. 2009, ch. 283, § 11.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment

2008 Revisions. In 2008, this section and Section 2-118 [N.D.C.C. § 30.1-04-17] replaced former Section 2-114(b), which provided: “(b) An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent”. The 2008 revisions divided the coverage of former Section 2-114(b) into two sections. Section 2-118(a) [N.D.C.C. § 30.1-04-17(1)] covered that part of former Section 2-114(b) that provided that an adopted individual is the child of his or her adopting parent or parents. Subsections (a) and (b) [subsections (1) and (2)] of this section covered that part of former Section 2-114(b) that provided that an adopted individual is not the child of his natural parents, but adoption of a child by the spouse of either natural parent has no effect on the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.

The 2008 revisions also added subsections (c), (d), and (e) [subsections (3), (4) and (5)], which are explained below.

Defined Terms. Section 2-119 [N.D.C.C. § 30.1-04-18] uses terms that are defined in Section 2-115 [N.D.C.C. § 30.1-04-14].

Adoptee is defined in Section 2-115 as an individual who is adopted. The term is not limited to an individual who is adopted as a minor, but includes an individual who is adopted as an adult.

Genetic parent is defined in Section 2-115 as the child’s genetic father or genetic mother. Genetic mother is defined as the woman whose egg was fertilized by the sperm of a child’s genetic father. Genetic father is defined as the man whose sperm fertilized the egg of a child’s genetic mother.

Relative is defined in Section 2-115 as a grandparent or a descendant of a grandparent.

Subsection (a) [subsection (1)]: Parent-Child Relationship Between Adoptee and Adoptee’s Genetic Parents. Subsection (a) states the general rule that a parent-child relationship does not exist between an adopted child and the child’s genetic parents. This rule recognizes that an adoption severs the parent-child relationship between the adopted child and the child’s genetic parents. The adoption gives the adopted child a replacement family, sometimes referred to in the case law as “a fresh start”. For further elaboration of this theory, see Restatement (Third) of Property: Wills and Other Donative Transfers § 2.5(2)(A) & cmts. d & e (1999). Subsection (a) also states, however, that there are exceptions to this general rule in subsections (b) through (d) [subsections (2)–(4)].

Subsection (b) [subsection (2)]: Stepchild Adopted by Stepparent. Subsection (b) continues the so-called “stepparent exception” contained in the Code since its original promulgation in 1969. When a stepparent adopts his or her stepchild, Section 2-118 [N.D.C.C. § 30.1-04-17] provides that the adoption creates a parent-child relationship between the child and his or her adoptive stepparent. Section 2-119(b)(1) [N.D.C.C. § 30.1-04-18(2)(a)] provides that a parent-child relationship continues to exist between the child and the child’s genetic parent whose spouse adopted the child. Section 2-119(b)(2) [N.D.C.C. § 30.1-04-18(2)(b)] provides that a parent-child relationship also continues to exist between an adopted stepchild and his or her other genetic parent (the noncustodial genetic parent) for purposes of inheritance from and through that genetic parent, but not for purposes of inheritance by the other genetic parent and his or her relatives from or through the adopted stepchild.

Example 1—Post-Widowhood Remarriage. A and B were married and had two children, X and Y. A died, and B married C. C adopted X and Y. Under subsection (b)(1) [subsection (2)(a)], X and Y are treated as B’s children and under Section 2-118(a) [N.D.C.C. § 30.1-04-17(1)] as C’s children for all purposes of inheritance. Under subsection (b)(2) [subsection (2)(b)], X and Y are treated as A’s children for purposes of inheritance from and through A but not for purposes of inheritance from or through X or Y. Thus, if A’s father, G, died intestate, survived by X and Y and by G’s daughter (A’s sister), S, G’s heirs would be S, X, and Y. S would take half and X and Y would take one-fourth each.

Example 2—Post-Divorce Remarriage. A and B were married and had two children, X and Y. A and B got divorced, and B married C. C adopted X and Y. Under subsection (b)(1) [subsection (2)(a)], X and Y are treated as B’s children and under Section 2-118(a) [N.D.C.C. § 30.1-04-17(1)] as C’s children for all purposes of inheritance. Under subsection (b)(2) [subsection (2)(b)], X and Y are treated as A’s children for purposes of inheritance from and through A. On the other hand, neither A nor any of A’s relatives can inherit from or through X or Y.

Subsection (c) [subsection (3)]: Individual Adopted by Relative of a Genetic Parent. Under subsection (c), a child who is adopted by a maternal or a paternal relative of either genetic parent, or by the spouse or surviving spouse of such a relative, remains a child of both genetic parents.

Example 3. F and M, a married couple with a four-year old child, X, were badly injured in an automobile accident. F subsequently died. M, who was in a vegetative state and on life support, was unable to care for X. Thereafter, M’s sister, A, and A’s husband, B, adopted X. F’s father, PGF, a widower, then died intestate. Under subsection (c), X is treated as PGF’s grandchild (F’s child).

Subsection (d) [subsection (4)]: Individual Adopted After Death of Both Genetic Parents. Usually, a post-death adoption does not remove a child from contact with the genetic families. When someone with ties to the genetic family or families adopts a child after the deaths of the child’s genetic parents, even if the adoptive parent is not a relative of either genetic parent or a spouse or surviving spouse of such a relative, the child continues to be in a parent-child relationship with both genetic parents. Once a child has taken root in a family, an adoption after the death of both genetic parents is likely to be by someone chosen or approved of by the genetic family, such as a person named as guardian of the child in a deceased parent’s will. In such a case, the child does not become estranged from the genetic family. Such an adoption does not “remove” the child from the families of both genetic parents. Such a child continues to be a child of both genetic parents, as well as a child of the adoptive parents.

Example 4. F and M, a married couple with a four-year-old child, X, were involved in an automobile accident that killed F and M. Neither M’s parents nor F’s father (F’s mother had died before the accident) nor any other relative was in a position to take custody of X. X was adopted by F and M’s close friends, A and B, a married couple approximately of the same ages as F and M. F’s father, PGF, a widower, then died intestate. Under subsection (d), X is treated as PGF’s grandchild (F’s child). The result would be the same if F’s or M’s will appointed A and B as the guardians of the person of X, and A and B subsequently successfully petitioned to adopt X.

Subsection (e) [subsection (5)]: Child of Assisted Reproduction or Gestational Child Who Is Subsequently Adopted. Subsection (e) puts a child of assisted reproduction and a gestational child on the same footing as a genetic child for purposes of this section. The results in Examples 1 through 4 would have been the same had the child in question been a child of assisted reproduction or a gestational child.

30.1-04-19. (2-120) Parent-child relationship — Child conceived by assisted reproduction other than a child born to a gestational carrier.

In this section:
1. “Birth mother” means a woman, other than a gestational carrier under section 30.1-04-20, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
2. “Child of assisted reproduction” means a child conceived by means of assisted reproduction by a woman other than a gestational carrier under section 30.1-04-20.
3. “Third-party donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife; the birth mother of a child of assisted reproduction; or an individual who is determined under subsection 5 or 6 to have a parent-child relationship with a child of assisted reproduction.
A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
Except as otherwise provided in subsections 9 and 10, a parent-child relationship exists between a child of assisted reproduction and the husband of the child’s birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction, and the husband is the genetic father of the child.
A birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual.
Except as otherwise provided in subsections 7, 9, and 10, and unless a parent-child relationship is established under subsection 4 or 5, a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual:
1. Before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent; or
2. In the absence of a signed record under subdivision a, functioned as a parent of the child no later than two years after the child’s birth; intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances; or intended to be treated as a parent of a posthumously conceived child if that intent is established by clear and convincing evidence.
For purposes of subdivision a of subsection 6, neither an individual who signed a record more than two years after the birth of the child, nor a relative of that individual who is not also a relative of the birth mother, inherits from or through the child unless the individual functioned as a parent of the child before the child reached the age of majority.
For purposes of subdivision b of subsection 6, if the birth mother is married and no divorce proceedings are pending or if the birth mother is a surviving spouse and at her deceased spouse’s death no divorce proceedings were then pending then, in the absence of clear and convincing evidence to the contrary, her spouse or deceased spouse is deemed to have satisfied subdivision b of subsection 6.
If a married couple are divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of the birth mother’s former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse’s child.
If, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies the requirements of subsection 6.
If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of subdivision b of subsection 1 of section 30.1-04-04 if the child is in utero not later than thirty-six months after the individual’s death; or born not later than forty-five months after the individual’s death.

Source:

S.L. 2009, ch. 283, § 12.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

Data on Children of Assisted Reproduction. The Center for Disease Control (CDC) of the U.S. Department of Health and Human Services collects data on children of assisted reproduction (ART). See Center for Disease Control, 2004 Assisted Reproductive Technology Success Rates (Dec. 2006) (2004 CDC Report), available at http://www.cdc.gov/ART/ART2004. The data, however, is of limited use because the definition of ART used in the CDC Report excludes intrauterine (artificial) insemination (2004 CDC Report at 3), which is probably the most common form of assisted reproductive procedures. The CDC estimates that in 2004 ART procedures (excluding intrauterine insemination) accounted for slightly more than one percent of total U.S. births. 2004 CDC Report at 13. According to the Report: “The number of infants born who were conceived using ART increased steadily between 1996 and 2004. In 2004, 49,458 infants were born, which was more than double the 20,840 born in 1996.” 2004 CDC Report at 57. “The average age of women using ART services in 2004 was 36. The largest group of women using ART services were women younger than 35, representing 41% of all ART cycles carried out in 2004. Twenty-one percent of ART cycles were carried out among women aged 35-37, 19% among women aged 38-40, 9% among women aged 41-42, and 9% among women older than 42.” 2004 CDC Report at 15. Updates of the 2004 CDC Report are to be posted at http://www.cdc.gov/ART/ART2004.

AMA Ethics Policy on Posthumous Conception . The ethics policies of the American Medical Association concerning artificial insemination by a known donor state that “[i]f semen is frozen and the donor dies before it is used, the frozen semen should not be used or donated for purposes other than those originally intended by the donor. If the donor left no instructions, it is reasonable to allow the remaining partner to use the semen for intrauterine insemination but not to donate it to someone else. However, the donor should be advised of such a policy at the time of donation and be given an opportunity to override it.” Am. Med. Assn. Council on Ethical & Judicial Affairs, Code of Medical Ethics: Current Opinions E-2.04 (Issued June 1993; updated December 2004), available at http://www0.amaassn. org/apps/pf_new/pf_online?f_n=browse&doc= policyfiles/HnE/E-2.0 (last visited October 16, 2008).

Subsection (a) [subsection (1)]: Definitions. Subsection (a) defines the following terms:

Birth mother is defined as the woman (other than a gestational carrier under Section 2-121 [N.D.C.C. § 30.1-04-20]) who gave birth to a child of assisted reproduction.

Child of assisted reproduction is defined as a child conceived by means of assisted reproduction by a woman other than a gestational carrier under Section 2-121.

Third-party donor. The definition of third-party donor is based on the definition of “donor” in the Uniform Parentage Act § 102 [N.D.C.C. § 14-20-02].

Other Defined Terms. In addition to the terms defined in subsection (a), this section uses terms that are defined in Section 2-115 [N.D.C.C. § 30.1-04-14].

Assisted reproduction is defined in Section 2-115 as a method of causing pregnancy other than sexual intercourse.

Divorce is defined in Section 2-115 as including an annulment, dissolution, and declaration of invalidity of a marriage.

Functioned as a parent of the child is defined in Section 2-115 as behaving toward a child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as a regular member of that household. See also the Comment to Section 2-115 for additional explanation of the term.

Genetic father is defined in Section 2-115 as the man whose sperm fertilized the egg of a child’s genetic mother.

Genetic mother is defined as the woman whose egg was fertilized by the sperm of the child’s genetic father.

Incapacity is defined in Section 2-115 as the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.

Subsection (b) [subsection (2)]: Third-Party Donor. Subsection (b) is consistent with the Uniform Parentage Act § 702 [N.D.C.C. § 14-20-60]. Under subsection (b), a third-party donor does not have a parent-child relationship with a child of assisted reproduction, despite the donor’s genetic relationship with the child.

Subsection (c) [subsection (3)]: Parent-Child Relationship With Birth Mother. Subsection (c) is in accord with the Uniform Parentage Act § 201 [N.D.C.C. § 14-20-07] in providing that a parent-child relationship exists between a child of assisted reproduction and the child’s birth mother. The child’s birth mother, defined in subsection (a) [subsection (1)] as the woman (other than a gestational carrier) who gave birth to the child, made the decision to undergo the procedure with intent to become pregnant and give birth to the child. Therefore, in order for a parent-child relationship to exist between her and the child, no proof that she consented to the procedure with intent to be treated as the parent of the child is necessary.

Subsection (d) [subsection (4)]: Parent-Child Relationship with Husband Whose Sperm Were Used During His Lifetime By His Wife for Assisted Reproduction. The principal application of subsection (d) is in the case of the assisted reproduction procedure known as intrauterine insemination husband (IIH), or, in older terminology, artificial insemination husband (AIH). Subsection (d) provides that, except as otherwise provided in subsection (i) [subsection (9)], a parent-child relationship exists between a child of assisted reproduction and the husband of the child’s birth mother if the husband provided the sperm that were used during his lifetime by her for assisted reproduction and the husband is the genetic father of the child. The exception contained in subsection (i) relates to the withdrawal of consent in a record before the placement of eggs, sperm, or embryos. Note that subsection (d) only applies if the husband’s sperm were used during his lifetime by his wife to cause a pregnancy by assisted reproduction. Subsection (d) does not apply to posthumous conception.

Subsection (e) [subsection (5)]: Birth Certificate: Presumptive Effect. A birth certificate will name the child’s birth mother as mother of the child. Under subsection (c), a parent-child relationship exists between a child of assisted reproduction and the child’s birth mother. Note that the term “birth mother” is a defined term in subsection (a) as not including a gestational carrier as defined in Section 2-121 [N.D.C.C. § 30.1-04-20].

Subsection (e) applies to the individual, if any, who is identified on the birth certificate as the child’s other parent. Subsection (e) grants presumptive effect to a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction. In the case of unmarried parents, federal law requires that states enact procedures under which “the name of the father shall be included on the record of birth,” but only if the father and mother have signed a voluntary acknowledgment of paternity or a court or an administrative agency of competent jurisdiction has issued an adjudication of paternity. See 42 U.S.C. § 666(a)(5)(D). This federal statute is included as an appendix to the Uniform Parentage Act.

The federal statute applies only to unmarried opposite-sex parents. Section 2-120(e)’s [N.D.C.C. § 30.1-04-19(5)] presumption, however, could apply to a same-sex couple if state law permits a woman who is not the birth mother to be listed on the child’s birth certificate as the child’s other parent. Even if state law does not permit that listing, the woman who is not the birth mother could be the child’s parent by adoption of the child (see Section 2-118 [N.D.C.C. § 30.1-04-17]) or under subsection (f) [subsection (6)] as a result of her consent to assisted reproduction by the birth mother “with intent to be treated as the other parent of the child,” or by satisfying the “function as a parent” test in subsection (f)(2) [subsection (6)(b)].

Section 2-120 [N.D.C.C. § 30.1-04-19] does not apply to same-sex couples that use a gestational carrier. For same-sex couples using a gestational carrier, the parent-child relationship can be established by adoption (see Section 2-118 and Section 2-121(b) [N.D.C.C. §§ 30.1-04-17 and 30.1-04-20(2)]), or it can be established under subsection 2-121(d) [N.D.C.C. § 30.1-04-20(4)] if the couple enters into a gestational agreement with the gestational carrier under which the couple agrees to be the parents of the child born to the gestational carrier. It is irrelevant whether either intended parent is a genetic parent of the child. See Section 2-121(a)(4) [N.D.C.C. § 30.1-04-20(1)(d)].

Subsection (f) [subsection (6)]: Parent-Child Relationship with Another. In order for someone other than the birth mother to have a parent-child relationship with the child, there needs to be proof that the individual consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. The other individual’s genetic material might or might not have been used to create the pregnancy. Except as otherwise provided in this section, merely depositing genetic material is not, by itself, sufficient to establish a parent-child relationship with the child.

Subsection (f)(1) [subsection (6)(a)]: Signed Record Evidencing Consent, Considering All the Facts and Circumstances, to Assisted Reproduction with Intent to Be Treated as the Other Parent of the Child. Subsection (f)(1) provides that a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction with intent to be treated as the other parent of the child is established if the individual signed a record, before or after the child’s birth, that considering all the facts and circumstances evidences the individual’s consent. Recognizing consent in a record not only signed before the child’s birth but also at any time after the child’s birth is consistent with the Uniform Parentage Act §§ 703 and 704 [N.D.C.C. §§ 14-20-61 and 62].

As noted, the signed record need not explicitly express consent to the procedure with intent to be treated as the other parent of child, but only needs to evidence such consent considering all the facts and circumstances. An example of a signed record that would satisfy this requirement comes from In re Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007). In that case, the New York Surrogate’s Court held that a child of posthumous conception was included in a class gift in a case in which the deceased father had signed a form that stated: “In the event of my death I agree that my spouse shall have the sole right to make decisions regarding the disposition of my semen samples. I authorize repro lab to release my specimens to my legal spouse [naming her].” Another form he signed stated: “I, [naming him], hereby certify that I am married or intimately involved with [naming her] and the cryopreserved specimens stored at repro lab will be used for future inseminations of my wife/intimate partner.” Although these forms do not explicitly say that the decedent consented to the procedure with intent to be treated as the other parent of the child, they do evidence such consent in light of all of the facts and circumstances and would therefore satisfy subsection (f)(1).

Subsection (f)(2) [subsection (6)(b)]: Ideally an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child will have signed a record that satisfies subsection (f)(1). If not, subsection (f)(2) recognizes that actions speak as loud as words. Under subsection (f)(2), consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual functioned as a parent of the child no later than two years after the child’s birth. Under subsection (f)(2)(B) [subsection (6)(b), 2nd cl.], the same result applies if the evidence establishes that the individual had that intent but death, incapacity, or other circumstances prevented the individual from carrying out that intent. Finally, under subsection (f)(2)(C) [subsection (6)(b), 3rd cl.], the same result applies if it can be established by clear and convincing evidence that the individual intended to be treated as a parent of a posthumously conceived child.

Subsection (g) [subsection (7)]: Record Signed More than Two Years after the Birth of the Child: Effect. Subsection (g) is designed to prevent an individual who has never functioned as a parent of the child from signing a record in order to inherit from or through the child or in order to make it possible for a relative of the individual to inherit from or through the child. Thus, subsection (g) provides that, for purposes of subsection (f)(1) [subsection (6)(a)], an individual who signed a record more than two years after the birth of the child, or a relative of that individual, does not inherit from or through the child unless the individual functioned as a parent of the child before the child reached the age of [18].

Subsection (h) [subsection (8)]: Presumption: Birth Mother is Married or Surviving Spouse. Under subsection (h), if the birth mother is married and no divorce proceeding is pending, then in the absence of clear and convincing evidence to the contrary, her spouse satisfies subsection (f)(2)(A) or (B) [subsection (6)(b), cl. 1 or 2] or if the birth mother is a surviving spouse and at her deceased spouse’s death no divorce proceeding was pending, then in the absence of clear and convincing evidence to the contrary, her deceased spouse satisfies subsection (f)(2)(B) or (C) [subsection (6)(b), cl. 2 or 3].

Subsection (i) [subsection (9)]: Divorce Before Placement of Eggs, Sperm, or Embryos. Subsection (i) is derived from the Uniform Parentage Act § 706(b) [N.D.C.C. § 14-20-64(2)].

Subsection (j) [subsection (10)]: Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos. Subsection (j) is derived from the Uniform Parentage Act § 706(a) [N.D.C.C. § 14-20-64(1)]. Subsection (j) provides that if, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies the requirements of subsection (f) [subsection (6)].

Subsection (k) [subsection (11)]: When Posthumously Conceived Gestational Child Treated as in Gestation. Subsection (k) provides that if, under this section, an individual is a parent of a gestational child who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) [N.D.C.C. § 30.1-04-04(1)(b)] if the child is either (i) in utero no later than 36 months after the individual’s death or (ii) born no later than 45 months after the individual’s death. Note also that Section 3-703 [N.D.C.C. § 30.1-18-03] gives the decedent’s personal representative authority to take account of the possibility of posthumous conception in the timing of all or part of the distribution of the estate.

The 36-month period in subsection (k) is designed to allow a surviving spouse or partner a period of grieving, time to make up his or her mind about whether to go forward with assisted reproduction, and a reasonable allowance for unsuccessful attempts to achieve a pregnancy. The 36-month period also coincides with Section 3-1006 [N.D.C.C. § 30.1-21-06], under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the child is in utero will ordinarily be evidenced by medical records. In some cases, however, the procedure is not performed in a medical facility, and so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a typical period of pregnancy.

30.1-04-20. (2-121) Parent-child relationship — Child born to a gestational carrier.

In this section:
1. “Gestational agreement” means an enforceable or unenforceable agreement for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection 5.
2. “Gestational carrier” means a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
3. “Gestational child” means a child born to a gestational carrier under a gestational agreement.
4. “Intended parent” means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child.
A parent-child relationship between a gestational child and the child’s gestational carrier does not exist unless the gestational carrier is:
1. Designated as a parent of the child in a court order described in subsection 2; or
2. The child’s genetic mother and a parent-child relationship does not exist with an individual other than the gestational carrier under this section.
In the absence of a court order under subsection 2, a parent-child relationship exists between a gestational child and an intended parent who:
1. Functioned as a parent of the child no later than two years after the child’s birth; or
2. Died while the gestational carrier was pregnant if:
  1. There were two intended parents and the other intended parent survived the birth of the child and functioned as a parent of the child no later than two years after the child’s birth;
  2. There were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or
  3. There was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
In the absence of a court order under subsection 2, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent can be shown by:
1. A record, signed by the individual that, considering all the facts and circumstances, evidences the individual’s intent; or
2. Other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
Except as otherwise provided in subsection 7, and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subdivision b of subsection 5 if:
1. The individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
2. When the individual deposited the sperm or eggs, the individual was married and no divorce proceedings were pending; and
3. The individual’s spouse or surviving spouse functioned as a parent of the child not later than two years after the child’s birth.
The presumption under subsection 6 does not apply if there is a court order under subsection 2 or a signed record that satisfies subdivision a of subsection 5.
If, under this section, an individual is a parent of a gestational child who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of subdivision b of subsection 1 of section 30.1-04-04 if the child is in utero not later than thirty-six months after the individual’s death or born not later than forty-five months after the individual’s death.
This section does not affect other law of this state regarding the enforceability or validity of a gestational agreement.

Source:

S.L. 2009, ch. 283, § 13.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

Subsection (a) [subsection (1)]: Definitions. Subsection (a) defines the following terms: Gestational agreement. The definition of gestational agreement is based on the Comment to Article 8 of the Uniform Parentage Act, which states that the term “gestational carrier” “applies to both a woman who, through assisted reproduction, performs the gestational function without being genetically related to a child, and a woman who is both the gestational and genetic mother. The key is that an agreement has been made that the child is to be raised by the intended parents.” The Comment also points out that “The [practice in which the woman is both the gestational and genetic mother] has elicited disfavor in the ART community, which has concluded that the gestational carrier’s genetic link to the child too often creates additional emotional and psychological problems in enforcing a gestational agreement.”

Gestational carrier is defined as a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.

Gestational child is defined as a child born to a gestational carrier under a gestational agreement.

Intended parent is defined as an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.

Other Defined Terms. In addition to the terms defined in subsection (a), this section uses terms that are defined in Section 2-115 [N.D.C.C. § 30.1-04-14].

Child of assisted reproduction is defined in Section 2-115 as a method of causing pregnancy other than sexual intercourse.

Divorce is defined in Section 2-115 as including an annulment, dissolution, and declaration of invalidity of a marriage.

Genetic mother is defined as the woman whose egg was fertilized by the sperm of the child’s genetic father.

Incapacity is defined in Section 2-115 as the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.

Relative is defined in Section 2-115 as a grandparent or a descendant of a grandparent.

Subsection (b): Court Order Adjudicating Parentage: Effect. A court order issued under § 807 of the Uniform Parentage Act (UPA) [not adopted by North Dakota] would qualify as a court order adjudicating parentage for purposes of subsection (b). UPA § 807 provides:

UPA § 807. Parentage under Validated Gestational Agreement. (a) Upon birth of a child to a gestational carrier, the intended parents shall file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Thereupon, the court shall issue an order:

Upon birth of a child to a gestational carrier, the intended parents shall file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Thereupon, the court shall issue an order:
1. confirming that the intended parents are the parents of the child;
2. if necessary, ordering that the child be surrendered to the intended parents; and
3. directing the [agency maintaining birth records] to issue a birth certificate naming the intended parents as parents of the child.

(b) If the parentage of a child born to a gestational carrier is alleged not to be the result of assisted reproduction, the court shall order genetic testing to determine the parentage of the child.

(c) If the intended parents fail to file notice required under subsection (a), the gestational carrier or the appropriate State agency may file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Upon proof of a court order issued pursuant to Section 803 [not adopted by North Dakota] validating the gestational agreement, the court shall order the intended parents are the parents of the child and are financially responsible for the child.

Subsection (c) [subsection (3)]: Gestational Carrier. Under subsection (c), the only way that a parent-child relationship exists between a gestational child and the child’s gestational carrier is if she is (1) designated as a parent of the child in a court order described in subsection (b) or (2) the child’s genetic mother and a parent-child relationship does not exist under this section with an individual other than the gestational carrier.

Subsection (d) [subsection (4)]: Parent-Child Relationship With Intended Parent or Parents. Subsection (d) only applies in the absence of a court order under subsection (b). If there is no such court order, subsection (b) provides that a parent-child relationship exists between a gestational child and an intended parent who functioned as a parent of the child no later than two years after the child’s birth. A parent-child also exists between a gestational child and an intended parent if the intended parent died while the gestational carrier was pregnant, but only if (A) there were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child’s birth; (B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or (C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.

Subsection (e) [subsection (5)]: Gestational Agreement After Death or Incapacity. Subsection (e) only applies in the absence of a court order under subsection (b). If there is no such court order, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent may be shown by a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent or by other facts and circumstances establishing the individual’s intent by clear and convincing evidence.

Subsections (f) and (g) [subsections (6) and (7)]: Presumption: Gestational Agreement After Spouse’s Death or Incapacity . Subsection (f) and (g) are connected. Subsection (f) provides that unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) [subsection (5)(b)] if (1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child, (2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and (3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.

Subsection (g) provides, however, that the presumption under subsection (f) does not apply if there is a court order under subsection (b) or a signed record that satisfies subsection (e)(1) [subsection (5)(a)].

Subsection (h) [subsection (8)]: When Posthumously Conceived Gestational Child is Treated as in Gestation. Subsection (h) provides that if, under this section, an individual is a parent of a gestational child who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) [N.D.C.C. § 30.1-04-04(1)(b)] if the child is either (i) in utero not later than 36 months after the individual’s death or (ii) born not later than 45 months after the individual’s death. Note also that Section 3-703 [N.D.C.C. § 30.1-18-03] gives the decedent’s personal representative authority to take account of the possibility of posthumous conception in the timing of the distribution of part or all of the estate.

The 36-month period in subsection (g) is designed to allow a surviving spouse or partner a period of grieving, time to make up his or her mind about whether to go forward with assisted reproduction, and a reasonable allowance for unsuccessful attempts to achieve a pregnancy. The three-year period also coincides with Section 3-1006 [N.D.C.C. § 30.1-21-06], under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the child is in utero will ordinarily be evidenced by medical records. In some cases, however, the procedure is not performed in a medical facility, and so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a typical period of pregnancy.

30.1-04-21. (2-122) Equitable adoption.

Sections 30.1-04-14 through 30.1-04-20 do not preclude, limit, or affect application of the doctrine of equitable adoption.

Source:

S.L. 2009, ch. 283, § 14.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

On the doctrine of equitable adoption, see Restatement (Third) of Property: Wills and Other Donative Transfers § 2.5, cmt. k & Reporter’s Note No. 7 ( 1999).

CHAPTER 30.1-05 Elective Share of Surviving Spouse

Note.

Effective January 1, 1996, former chapter 30.1-05 was repealed by S.L. 1993, chapter 334, section 50 and a new chapter 30.1-05, enacted by S.L. 1993, chapter 334, § 16, was substituted therefor.

General Editorial Board Comment.

The elective share of the surviving spouse was fundamentally revised in 1990 and was reorganized and clarified in 1993 and 2008. The main purpose of the revisions is to bring elective-share law into line with the contemporary view of marriage as an economic partnership. The economic partnership theory of marriage is already implemented under the equitable-distribution system applied in both the common-law and community-property states when a marriage ends in divorce. When a marriage ends in death, that theory is also already implemented under the community-property system and under the system promulgated in the Model Marital Property Act. In the common-law states, however, elective-share law has not caught up to the partnership theory of marriage.

The general effect of implementing the partnership theory in elective-share law is to increase the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were more or less equally titled or disproportionately titled in the surviving spouse’s name. A further general effect is to decrease or even eliminate the entitlement of a surviving spouse in a short-term, later-in-life marriage (typically a post-widowhood remarriage) in which neither spouse contributed much, if anything, to the acquisition of the other’s wealth, except that a special supplemental elective-share amount is provided in cases in which the surviving spouse would otherwise be left without sufficient funds for support.

The Partnership Theory of Marriage. The partnership theory of marriage, sometimes also called the marital-sharing theory, is stated in various ways. Sometimes it is thought of “as an expression of the presumed intent of husbands and wives to pool their fortunes on an equal basis, share and share alike.” M. Glendon, The Transformation of Family Law (1989). Under this approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property nominally acquired by and titled in the sole name of either partner during the marriage (other than in property acquired by gift or inheritance). A decedent who disinherits his or her surviving spouse is seen as having reneged on the bargain. Sometimes the theory is expressed in restitutionary terms, a return-of-contribution notion. Under this approach, the law grants each spouse an entitlement to compensation for non-monetary contributions to the marital enterprise, as “a recognition of the activity of one spouse in the home and to compensate not only for this activity but for opportunities lost.” Id. See also American Law Institute, Principles of Family Dissolution § 4.09 Comment c (2002).

No matter how the rationale is expressed, the community-property system, including that version of community law promulgated in the Model Marital Property Act, recognizes the partnership theory, but it is sometimes thought that the common-law system denies it. In the ongoing marriage, it is true that the basic principle in the common-law (title-based) states is that marital status does not affect the ownership of property. The regime is one of separate property. Each spouse owns all that he or she earns. By contrast, in the community-property states, each spouse acquires an ownership interest in half the property the other earns during the marriage. By granting each spouse upon acquisition an immediate half interest in the earnings of the other, the community-property regimes directly recognize that the couple’s enterprise is in essence collaborative.

The common-law states, however, also give effect or purport to give effect to the partnership theory when a marriage is dissolved by divorce. If the marriage ends in divorce, a spouse who sacrificed his or her financial-earning opportunities to contribute so-called domestic services to the marital enterprise (such as child rearing and homemaking) stands to be recompensed. All states now follow the equitable-distribution system upon divorce, under which “broad discretion [is given to] trial courts to assign to either spouse property acquired during the marriage, irrespective of title, taking into account the circumstances of the particular case and recognizing the value of the contributions of a nonworking spouse or homemaker to the acquisition of that property. Simply stated, the system of equitable distribution views marriage as essentially a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute–directly and indirectly, financially and nonfinancially–the fruits of which are distributable at divorce.” J. Gregory, The Law of Equitable Distribution ¶ 1.03, at p. 1-6 (1989).

The other situation in which spousal property rights figure prominently is disinheritance at death. The original (pre-1990) Uniform Probate Code, along with almost all other non-UPC common-law states, treats this as one of the few instances in American law where the decedent’s testamentary freedom with respect to his or her title-based ownership interests must be curtailed. No matter what the decedent’s intent, the original Uniform Probate Code and almost all of the non-UPC common-law states recognize that the surviving spouse does have some claim to a portion of the decedent’s estate. These statutes provide the spouse a so-called forced share. The forced share is expressed as an option that the survivor can elect or let lapse during the administration of the decedent’s estate, hence in the UPC the forced share is termed the “elective” share.

Elective-share law in the common-law states, however, has not caught up to the partnership theory of marriage. Under typical American elective-share law, including the elective share provided by the original Uniform Probate Code, a surviving spouse may claim a one-third share of the decedent’s estate—not the 50 percent share of the couple’s combined assets that the partnership theory would imply.

Long-term Marriages. To illustrate the discrepancy between the partnership theory and conventional elective-share law, consider first a long-term marriage, in which the couple’s combined assets were accumulated mostly during the course of the marriage. The original elective-share fraction of one-third of the decedent’s estate plainly does not implement a partnership principle. The actual result depends on which spouse happens to die first and on how the property accumulated during the marriage was nominally titled.

Example 1—Long-term Marriage under Conventional Forced-share Law. Consider A and B, who were married in their twenties or early thirties; they never divorced, and A died at age, say, 70, survived by B. For whatever reason, A left a will entirely disinheriting B.

Throughout their long life together, the couple managed to accumulate assets worth $600,000, marking them as a somewhat affluent but hardly wealthy couple.

Under conventional elective-share law, B’s ultimate entitlement depends on the manner in which these $600,000 in assets were nominally titled as between them. B could end up much poorer or much richer than a 50/50 partnership principle would suggest. The reason is that under conventional elective-share law, B has a claim to one-third of A’s “estate.”

Marital Assets Disproportionately Titled in Decedent’s Name; Conventional Elective-share Law Frequently Entitles Survivor to Less Than Equal Share of Marital Assets. If all the marital assets were titled in A’s name, B’s claim against A’s estate would only be for $200,000—well below B’s $300,000 entitlement produced by the partnership/marital-sharing principle.

If $500,000 of the marital assets were titled in A’s name, B’s claim against A’s estate would still only be for $166,500 (1/3 of $500,000), which when combined with B’s “own” $100,000 yields a $266,500 cut for B—still below the $300,000 figure produced by the partnership/marital-sharing principle.

Marital Assets Equally Titled; Conventional Elective-share Law Entitles Survivor to Disproportionately Large Share. If $300,000 of the marital assets were titled in A’s name, B would still have a claim against A’s estate for $100,000, which when combined with B’s “own” $300,000 yields a $400,000 cut for B—well above the $300,000 amount to which the partnership/marital-sharing principle would lead.

Marital Assets Disproportionately Titled in Survivor’s Name; Conventional Elective-share Law Entitles Survivor to Magnify the Disproportion. If only $200,000 were titled in A’s name, B would still have a claim against A’s estate for $66,667 (1/3 of $200,000), even though B was already overcompensated as judged by the partnership/marital-sharing theory.

Short-term, Later-in-Life Marriages. Short-term marriages, particularly the post-widowhood remarriage occurring later in life, present different considerations. Because each spouse in this type of marriage typically comes into the marriage owning assets derived from a former marriage, the one-third fraction of the decedent’s estate far exceeds a 50/50 division of assets acquired during the marriage.

Example 2—Short-term, Later-in-Life Marriage under Conventional Elective-share Law. Consider B and C. A year or so after A’s death, B married C. Both B and C are in their seventies, and after five years of marriage, B dies survived by C. Both B and C have adult children and a few grandchildren by their prior marriages, and each naturally would prefer to leave most or all of his or her property to those children.

The value of the couple’s combined assets is $600,000, $300,000 of which is titled in B’s name (the decedent) and $300,000 of which is titled in C’s name (the survivor).

For reasons that are not immediately apparent, conventional elective-share law gives the survivor, C, a right to claim one-third of B’s estate, thereby shrinking B’s estate (and hence the share of B’s children by B’s prior marriage to A) by $100,000 (reducing it to $200,000) while supplementing C’s assets (which will likely go to C’s children by C’s prior marriage) by $100,000 (increasing their value to $400,000).

Conventional elective-share law, in other words, basically rewards the children of the remarried spouse who manages to outlive the other, arranging for those children a windfall share of one-third of the “loser’s” estate. The “winning” spouse who chanced to survive gains a windfall, for this “winner” is unlikely to have made a contribution, monetary or otherwise, to the “loser’s” wealth remotely worth one-third.

The redesigned elective share. The redesigned elective share is intended to bring elective-share law into line with the partnership theory of marriage.

In the long-term marriage illustrated in Example 1, the effect of implementing a partnership theory is to increase the entitlement of the surviving spouse when the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of the surviving spouse when the marital assets were more or less equally titled or disproportionately titled in the surviving spouse’s name. Put differently, the effect is both to reward the surviving spouse who sacrificed his or her financial-earning opportunities in order to contribute so-called domestic services to the marital enterprise and to deny an additional windfall to the surviving spouse in whose name the fruits of a long-term marriage were mostly titled.

In the short-term, later-in-life marriage illustrated in Example 2, the effect of implementing a partnership theory is to decrease or even eliminate the entitlement of the surviving spouse because in such a marriage neither spouse is likely to have contributed much, if anything, to the acquisition of the other’s wealth. Put differently, the effect is to deny a windfall to the survivor who contributed little to the decedent’s wealth, and ultimately to deny a windfall to the survivor’s children by a prior marriage at the expense of the decedent’s children by a prior marriage. Bear in mind that in such a marriage, which produces no children, a decedent who disinherits or largely disinherits the surviving spouse may not be acting so much from malice or spite toward the surviving spouse, but from a natural instinct to want to leave most or all of his or her property to the children of his or her former, long-term marriage. In hardship cases, however, as explained later, a special supplemental elective-share amount is provided when the surviving spouse would otherwise be left without sufficient funds for support.

2008 Revisions. When first promulgated in the early 1990s, the statute provided that the “elective-share percentage” increased annually according to a graduated schedule. The “elective-share percentage” ranged from a low of 0 percent for a marriage of less than one year to a high of 50 percent for a marriage of fifteen years or more. The “elective-share percentage” did double duty. The system equated the “elective-share percentage” of the couple’s combined assets with 50 percent of the marital-property portion of the couple’s assets—the assets that are subject to equalization under the partnership theory of marriage. Consequently, the elective share effected the partnership theory rather indirectly. Although the schedule was designed to represent by approximation a constant fifty percent of the marital-property portion of the couple’s assets (the augmented estate), it did not say so explicitly.

The 2008 revisions are designed to present the system in a more direct form, one that makes the system more transparent and therefore more understandable. The 2008 revisions disentangle the elective-share percentage from the system that approximates the marital-property portion of the augmented estate. As revised, the statute provides that the “elective-share percentage” is always 50 percent, but it is not 50 percent of the augmented estate but 50 percent of the “marital-property portion” of the augmented estate [North Dakota did not make this change]. The marital-property portion of the augmented estate is computed by approximation—by applying the percentages set forth in a graduated schedule that increases annually with the length of the marriage (each “marital-portion percentage” being double the percentage previously set forth in the “elective-share percentage” schedule). Thus, for example, under the former system, the elective-share amount in a marriage of ten years was 30 percent of the augmented estate. Under the revised system, the elective-share amount is 50 percent of the marital-property portion of the augmented estate, the marital-property portion of the augmented estate being 60 percent of the augmented estate.

The primary benefit of these changes is that the statute, as revised, presents the elective-share’s implementation of the partnership theory of marriage in a direct rather than indirect form, adding clarity and transparency to the system. An important by-product of the revision is that it facilitates the inclusion of an alternative provision for enacting states that want to implement the partnership theory of marriage but prefer not to define the marital-property portion by approximation but by classification. Under the deferred marital-property approach, the marital-property portion consists of the value of the couple’s property that was acquired during the marriage other than by gift or inheritance. (See below.)

The 2008 revisions are based on a proposal presented in Waggoner, “The Uniform Probate Code’s Elective Share: Time for a Reassessment,” 37 U. Mich. J. L. Reform 1 (2003), an article that gives a more extensive explanation of the rationale of the 2008 revisions.

Specific Features of the Redesigned Elective Share. Because ease of administration and predictability of result are prized features of the probate system, the redesigned elective share implements the marital-partnership theory by means of a mechanically determined approximation system. Under the redesigned elective share, there is no need to identify which of the couple’s property was earned during the marriage and which was acquired prior to the marriage or acquired during the marriage by gift or inheritance. For further discussion of the reasons for choosing this method, see Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683 (1992).

Section 2-202(a) [N.D.C.C. § 30.1-05-01(1)]—The “Elective-share Amount.” Under Section 2-202(a,) the elective-share amount is equal to 50 percent of the value of the “marital-property portion of the augmented estate.” The marital-property portion of the augmented estate, which is determined under Section 2-203(b) [not adopted by North Dakota], increases with the length of the marriage. The longer the marriage, the larger the “marital-property portion of the augmented estate.” The sliding scale adjusts for the correspondingly greater contribution to the acquisition of the couple’s marital property in a marriage of 15 years than in a marriage of 15 days. Specifically, the “marital-property portion of the augmented estate” starts low and increases annually according to a graduated schedule until it reaches 100 percent. After one year of marriage, the marital-property portion of the augmented estate is six percent of the augmented estate and it increases with each additional year of marriage until it reaches the maximum 100 percent level after 15 years of marriage [North Dakota’s provision continues to refer simply to the “augmented estate” and did not add the language “marital-property portion of”].

Section 2-203(a) [not adopted by North Dakota]—the “Augmented Estate.” The elective-share percentage of 50 percent is applied to the value of the “marital-property portion of the augmented estate.” As defined in Section 2-203, the “augmented estate” equals the value of the couple’s combined assets, not merely the value of the assets nominally titled in the decedent’s name.

More specifically, the “augmented estate” is composed of the sum of four elements: Section 2-204 [N.D.C.C. § 30.1-05-02(2)(a)]—the value of the decedent’s net probate estate; Section 2-205 [N.D.C.C. § 30.1-05-02(2)(b)]—the value of the decedent’s nonprobate transfers to others, consisting of will-substitute-type inter-vivos transfers made by the decedent to others than the surviving spouse; Section 2-206 [N.D.C.C. § 30.1-05-02(2)(c)]—the value of the decedent’s nonprobate transfers to the surviving spouse, consisting of will-substitute-type inter-vivos transfers made by the decedent to the surviving spouse; and Section 2-207 [N.D.C.C. § 30.1-05-02(2)(d)]—the value of the surviving spouse’s net assets at the decedent’s death, plus any property that would have been in the surviving spouse’s nonprobate transfers to others under Section 2-205 had the surviving spouse been the decedent.

Section 2-203(b) [not adopted by North Dakota]—the “Marital-property portion” of the Augmented Estate . Section 2-203(b) defines the marital-property portion of the augmented estate.

Section 2-202(a) [N.D.C.C. § 30.1-05-01(1)]—the “Elective-share Amount.” Section 2-202(a) requires the elective-share percentage of 50 percent to be applied to the value of the marital-property portion of the augmented estate [North Dakota did not make the change to include “marital-property portion”]. This calculation yields the “elective-share amount”—the amount to which the surviving spouse is entitled. If the elective-share percentage were to be applied only to the marital-property portion of the decedent’s assets, a surviving spouse who has already been overcompensated in terms of the way the marital-property portion of the couple’s assets have been nominally titled would receive a further windfall under the elective-share system. The marital-property portion of the couple’s assets, in other words, would not be equalized. By applying the elective-share percentage of 50 percent to the marital-property portion of the augmented estate (the couple’s combined assets), the redesigned system denies any significance to how the spouses took title to particular assets.

Section 2-209 [N.D.C.C. § 30.1-05-03]—Satisfying the Elective-share Amount. Section 2-209 determines how the elective-share amount is to be satisfied. Under Section 2-209, the decedent’s net probate estate [term “net” is not used in North Dakota’s provision] and nonprobate transfers to others are liable to contribute to the satisfaction of the elective-share amount only to the extent the elective-share amount is not fully satisfied by the sum of the following amounts: Subsection (a)(1) [subsection (1)(a)]—amounts that pass or have passed from the decedent to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206 [N.D.C.C. § 30.1-05-02(2)(c)], i.e., the value of the decedent’s nonprobate transfers to the surviving spouse; and Subsection (a)(2) [subsection (1)(b)] the marital-property portion of amounts included in the augmented estate under Section 2-207 [N.D.C.C. § 30.1-05-01(2)].

If the combined value of these amounts equals or exceeds the elective-share amount, the surviving spouse is not entitled to any further amount from recipients of the decedent’s net probate estate or non-probate transfers to others, unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2-202(b) [N.D.C.C. § 30.1-05-01(2)].

In a marriage that has lasted less than 15 years, only a portion of the survivor’s assets—not all—count toward making up the elective-share amount. This is because, in these shorter-term marriages, the marital-property portion of the survivor’s assets under Section 2-203(b) [not adopted by North Dakota] is less than 100% and, under Section 2-209(a)(2) [N.D.C.C. § 30.1-05-03(1)(b)], the portion of the survivor’s assets that count toward making up the elective-share amount is limited to the marital-property portion of those assets.

To explain why this is appropriate requires further elaboration of the underlying theory of the redesigned system. The system avoids the classification and tracing-to-source problems in determining the marital-property portion of the couple’s assets. This is accomplished under Section 2-203(b) by applying an ever-increasing percentage, as the length of the marriage increases, to the couple’s combined assets without regard to when or how those assets were acquired. By approximation, the redesigned system equates the marital-property portion of the couple’s combined assets with the couple’s marital assets—assets subject to equalization under the partnership/marital-sharing theory. Thus, in a marriage that has endured long enough for the marital-property portion of their assets to be 60% under Section 2-203(b), 60% of each spouse’s assets are treated as marital assets. Section 2-209(a)(2) therefore counts only 60% of the survivor’s assets toward making up the elective-share amount.

Deferred Marital-Property Alternative. By making the elective share percentage a flat 50 percent of the marital-property portion of the augmented estate, the 2008 revision disentangles the elective share percentage from the approximation schedule, thus allowing the marital-property portion of the augmented estate to be defined either by the approximation schedule or by the deferred-marital-property approach. Although one of the benefits of the 2008 revision is added clarity, an important by-product of the revision is that it facilitates the inclusion of an alternative provision for enacting states that prefer a deferred marital-property approach. See Alan Newman, Incorporating the Partnership Theory of Marriage into Elective-Share Law: the Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 Emory L.J. 487 (2000).

The Support Theory. The partnership/marital-sharing theory is not the only driving force behind elective-share law. Another theoretical basis for elective-share law is that the spouses’ mutual duties of support during their joint lifetimes should be continued in some form after death in favor of the survivor, as a claim on the decedent’s estate. Current elective-share law implements this theory poorly. The fixed fraction, whether it is the typical one-third or some other fraction, disregards the survivor’s actual need. A one-third share may be inadequate to the surviving spouse’s needs, especially in a modest estate. On the other hand, in a very large estate, it may go far beyond the survivor’s needs. In either a modest or a large estate, the survivor may or may not have ample independent means, and this factor, too, is disregarded in conventional elective-share law. The redesigned elective share system implements the support theory by granting the survivor a supplemental elective-share amount related to the survivor’s actual needs. In implementing a support rationale, the length of the marriage is quite irrelevant. Because the duty of support is founded upon status, it arises at the time of the marriage.

Section 2-202(b) [N.D.C.C. § 30.1-05-01(2)]—the “Supplemental Elective-share Amount.” Section 2-202(b) is the provision that implements the support theory by providing a supplemental elective-share amount of $75,000. The $75,000 figure is bracketed to indicate that individual states may wish to select a higher or lower amount.

In satisfying this $75,000 amount, the surviving spouse’s own titled-based ownership interests count first toward making up this supplemental amount; included in the survivor’s assets for this purpose are amounts shifting to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the accrual-type elective-share apparatus discussed above, but excluded are (1) amounts going to the survivor under the Code’s probate exemptions and allowances and (2) the survivor’s Social Security benefits (and other governmental benefits, such as Medicare insurance coverage). If the survivor’s assets are less than the $75,000 minimum, then the survivor is entitled to whatever additional portion of the decedent’s estate is necessary, up to 100 percent of it, to bring the survivor’s assets up to that minimum level. In the case of a late marriage, in which the survivor is perhaps aged in the mid-seventies, the minimum figure plus the probate exemptions and allowances (which under the Code amount to a minimum of another $64,500) is pretty much on target — in conjunction with Social Security payments and other governmental benefits — to provide the survivor with a fairly adequate means of support.

Decedent’s Nonprobate Transfers to Others. The original Code made great strides toward preventing “fraud on the spouse’s share.” The problem of “fraud on the spouse’s share” arises when the decedent seeks to evade the spouse’s elective share by engaging in various kinds of nominal inter-vivos transfers. To render that type of behavior ineffective, the original Code adopted the augmented-estate concept, which extended the elective-share entitlement to property that was the subject of specified types of inter-vivos transfer, such as revocable inter-vivos trusts.

In the redesign of the elective share, the augmented-estate concept has been strengthened. The pre-1990 Code left several loopholes ajar in the augmented estate—a notable one being life insurance the decedent buys, naming someone other than his or her surviving spouse as the beneficiary. With appropriate protection for the insurance company that pays off before receiving notice of an elective-share claim, the redesigned elective-share system includes these types of insurance policies in the augmented estate as part of the decedent’s nonprobate transfers to others under Section 2-205 [N.D.C.C. § 30.1-05-02(2)(c)(3)].

30.1-05-01. (2-202) Elective share.

The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this chapter, to take an elective share amount equal to fifty percent of the augmented estate.
If the sum of the amounts described in subdivision d of subsection 2 of section 30.1-05-02, subdivision a of subsection 1 of section 30.1-05-03, and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under subsections 2 and 3 of section 30.1-05-03 is less than seventy-five thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to seventy-five thousand dollars minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in subsections 2 and 3 of section 30.1-05-03.
If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts.
The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27; 2009, ch. 283, § 15.

Effective Date.

The 2009 amendment of this section by section 15 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Pre-1990 Provision. The pre-1990 provisions granted the surviving spouse a one-third share of the augmented estate. The one-third fraction was largely a carry-over from common-law dower, under which a surviving widow had a one-third interest for life in her deceased husband’s land.

Purpose and Scope of Revisions. The revision of this section is the first step in the overall plan of implementing a partnership or marital-sharing theory of marriage, with a support theory back-up.

Subsection (a) [subsection (1)]. Subsection (a) implements the partnership theory by providing that the elective-share amount is 50 percent of the value of the marital-property portion of the augmented estate [North Dakota did not add the language “marital-property portion of”]. The augmented estate is defined in Section 2-203(a) [not adopted by North Dakota] and the marital-property portion of the augmented estate is defined in Section 2-203(b) [not adopted by North Dakota].

Subsection (b) [subsection (2)]. Subsection (b) implements the support theory of the elective share by providing a [$75,000] supplemental elective-share amount, in case the surviving spouse’s assets and other entitlements are below this figure.

2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in 2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living adjustments under Section 1-109 [not adopted by North Dakota].

Subsection (c) [subsection (3)]. The homestead, exempt property, and family allowances provided by Article II, Part 4, are not charged to the electing spouse as a part of the elective share. Consequently, these allowances may be distributed from the probate estate without reference to whether an elective share right is asserted.

Cross Reference. To have the right to an elective share under subsection (a) [subsection (1)], the decedent’s spouse must survive the decedent. Under Section 2-702(a) [N.D.C.C. § 30.1-09.1-02], the requirement of survivorship is satisfied only if it can be established that the spouse survived the decedent by 120 hours.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

Notes to Decisions

Amount of Share.
Divorce Abated.
Omitted Spouse’s Share.
Waiver.

Amount of Share.

District court’s decision stated that the wife, as surviving spouse of the decedent, was allowed to claim her elective share in the amount of $67,000, plus one-fourth of the estate under Mich. Comp. Laws Serv. § 700.2202; however, the court’s findings did not include any calculation for the reduction of one-half of the value of property derived by the wife from the decedent by any means other than testate or intestate succession upon his death, or for the addition of one-half of any balance of the intestate estate, and the court’s conclusory findings were inadequate to understand the basis for the court’s decision about an elective share. In re Estate of Wicklund v. Wicklund, 2012 ND 29, 812 N.W.2d 359, 2012 N.D. LEXIS 26 (N.D. 2012).

Divorce Abated.

In a case in which the wife died during divorce proceedings after the district court had issued a judgment of divorce, but before resolving the issue of property division, the Supreme Court concluded that no reason existed for the husband to not inherit from the wife's estate. Because the divorce action was abated, the husband was not divorced. In re Estate of Albrecht v. Albrecht, 2018 ND 67, 908 N.W.2d 135, 2018 N.D. LEXIS 73 (N.D. 2018).

Omitted Spouse’s Share.

The amount of an omitted spouse’s share under N.D.C.C. § 30.1-06-01 is not limited to the same extent as the amount of the elective share provided for a surviving spouse under this section. In re Estate of Knudsen, 322 N.W.2d 454, 1982 N.D. LEXIS 316 (N.D. 1982).

Waiver.

Collateral References.

Descent and Distribution 64-67; Wills 782, 783.

80 Am Jur 2d Wills § 1369 et seq.

Charge on realty: legacy accepted by surviving spouse in lieu of dower or other marital rights as charge upon real estate, where personalty is insufficient to pay legacy, 2 A.L.R.2d 607.

Waiver or abandonment of, or estoppel to assert, prior renunciation of, or election to take against, spouse’s will, 29 A.L.R.2d 244, 277.

Separation agreement as barring rights of surviving spouse in other’s estate, 34 A.L.R.2d 1020, 1039.

Loss occasioned by election against will, who must bear, 36 A.L.R.2d 291.

Revocation or withdrawal of election to take under or against will, 71 A.L.R.2d 942.

Agent or personal representative, election by spouse to take under or against will as exercisable by, 83 A.L.R.2d 1077.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 486.

Totten Trust: inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse’s interest in decedent’s estate, 64 A.L.R.3d 187.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator’s death, 7 A.L.R.4th 989.

Construction, application, and effect of statutes which deny or qualify surviving spouse’s right to elect against deceased spouse’s will, 48 A.L.R.4th 972.

Determination of, and charges against, “augmented estate” upon which share of spouse electing to take against will is determined under Uniform Probate Code section 2-202, 63 A.L.R.4th 1173.

30.1-05-02. (2-201, 2-204 through 2-208) Augmented estate.

1. In this section:
  1. “Decedent’s nonprobate transfers to others” means the decedent’s nonprobate transfers to persons, other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors, that are included in the augmented estate under subdivision b of subsection 2.
  2. “Fractional interest in property held in joint tenancy with the right of survivorship”, whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.
  3. “Marriage”, as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent’s surviving spouse.
  4. “Nonadverse party” means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.
  5. “Power” or “power of appointment” includes a power to designate the beneficiary of a beneficiary designation.
  6. “Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in the decedent, the decedent’s creditors, the decedent’s estate, or the creditors of the decedent’s estate, and includes a power to revoke or invade the principle of a trust or other property arrangement.
  7. “Probate estate” means property, whether movable or immovable, wherever situated, that would pass by intestate succession if the decedent died without a valid will.
  8. “Property” includes values subject to a beneficiary designation.
  9. “Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.
  10. “Transfer”, as it relates to a transfer by or of the decedent, includes:
    1. An exercise or release of a presently exercisable general power of appointment held by the decedent;
    2. A lapse at death of a presently exercisable general power of appointment held by the decedent; and
    3. An exercise, release, or lapse of a general power of appointment that the decedent created in the decedent and of a power described in subparagraph b of paragraph 2 of subdivision b of subsection 2 that the decedent conferred on a nonadverse party.
2. In subparagraph a of paragraph 3 of subdivision b of subsection 2, “termination”, with respect to a right or interest in property, means that the right or interest terminated by the terms of the governing instrument or that the decedent transferred or relinquished the right or interests; and, with respect to a power over property, means that the power terminated by exercise, release, lapse, in default, or otherwise, except that, with respect to a power described in subparagraph a of paragraph 1 of subdivision b of subsection 2, “termination” means that the power terminated by exercise or release, but not by lapse nor in default or otherwise.
The augmented estate consists of the sum of:
1. The value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead allowance as defined in section 47-18-01, family allowances, exempt property, and enforceable claims.
2. The value of the decedent’s nonprobate transfers to others, which are composed of all property, whether movable or immovable, wherever situated, not included in the decedent’s probate estate, of any of the following types:
  1. Property of any of the following types that passed outside probate at the decedent’s death:
    1. Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment created by the decedent during the marriage; the amount included is the value of the property subject to the power, to the extent that the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.
    2. The decedent’s fractional interest in property, held by the decedent in joint tenancy with the right of survivorship; the amount included is the value of the decedent’s fractional interest contributed by the decedent during the marriage, to the extent that that fractional interest passed by right of survivorship at the decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.
    3. The decedent’s ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship; the amount included is the value of the decedent’s ownership interest, to the extent that the decedent’s ownership interest passed at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.
  2. Property transferred in any of the following forms by the decedent during marriage:
    1. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or the income from, the property if and to the extent that the decedent’s right terminated at or continued beyond the decedent’s death; the amount included is the value of the fraction of the property to which the decedent’s right related, to the extent that that fraction of the property passed outside probate to or for the benefit of any person other than the decedent’s estate or surviving spouse.
    2. Any transfer in which the decedent created a power over the income or principal of the transferred property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, for the benefit of the decedent, the decedent’s creditors, the decedent’s estate, or the creditors of the decedent’s estate; the amount included is the value of the property subject to the power, to the extent that the power was exercisable at the decedent’s death to or for the benefit of any person other than the decedent’s surviving spouse or to the extent that the property subject to the power passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.
  3. Property that passed during marriage and during the two-year period next preceding the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the following types:
    1. Any property that passed as a result of termination of a right or interest in, or power over, property that would have been included in the augmented estate under subparagraph a, b, or c of paragraph 1 of this subdivision, or under paragraph 2 of this subdivision, if the right, interest, or power had not terminated until the decedent’s death; the amount included is the value of the property that would have been included under these subsections, except that the property is valued at the time that the right, interest, or power terminated, and is included only to the extent that the property passed upon termination to or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or surviving spouse.
    2. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent’s surviving spouse, the amount included is the value of the transferred property to the extent that the aggregate transfers to any one donee in either of the two years exceeded ten thousand dollars.
3. The value of the decedent’s nonprobate transfers to the decedent’s surviving spouse, which are composed of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:
  1. The decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant;
  2. The decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner;
  3. Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if, and to the extent that, the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds, the amount included is the value of the proceeds, to the extent that they were payable at the decedent’s death; and
  4. All other property that would have been included in the augmented estate under paragraph 1 or 2 of subdivision b of this subsection had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors, but excluding property passing to the surviving spouse under the federal social security system.
4. Except to the extent included in the augmented estate under subdivision a or c, the value of property:
  1. That was owned by the decedent’s surviving spouse at the decedent’s death, including:
    1. The surviving spouse’s fractional interest in property held in joint tenancy with the right of survivorship;
    2. The surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
    3. Property that passed to the surviving spouse by reason of the decedent’s death, but not including the spouse’s right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.
  2. That would have been included in the surviving spouse’s nonprobate transfers to others, other than the spouse’s fractional and ownership interest included under subparagraphs a and b of paragraph 1, had the spouse been the decedent. Property included under this paragraph is valued at the decedent’s death, taking the fact that the decedent predeceased the spouse into account, except that, for purposes of subparagraphs a and b of paragraph 1, the values of the spouse’s fractional and ownership interests are determined immediately before the decedent’s death if the decedent was then a joint tenant or a co-owner of the property or accounts. The value of property included under this paragraph is reduced in each category by enforceable claims against the included property and is reduced by enforceable claims against the surviving spouse.
The value of any property is excluded from the decedent’s nonprobate transfers to others to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse. Life insurance, accident insurance, pension, profit-sharing, retirement, and other benefit plans payable to persons other than the decedent’s surviving spouse or the decedent’s estate are also excluded from the decedent’s nonprobate transfers.
The value of property includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system.
In case of overlapping application to the same property of the paragraphs or subparagraphs of subsection 2, the property is included in the augmented estate under the provision yielding the highest value, but under any one, but only one, of the overlapping provisions if they all yield the same value.

Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, §§ 3, 4; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Editorial Board Comment.

[Comment to Uniform Probate Code § 2-203 has been omitted as this section has not been adopted by North Dakota. North Dakota has retained the 1990 structure in which the definition of the augmented estate was contained in one long section. The current UPC breaks the section down into a number of new sections. This section contains in substance what currently comprises Uniform Probate Code §§ 2-201, 2-204–2-208 and the commentary to these sections appears below. ].

Comment to 2-204 [N.D.C.C. § 30.1-05-02(2)(a)] . This section, which in the 1990 version appeared as a paragraph of a single, long section defining the augmented estate, establishes as the first component of the augmented estate the value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead allowance (Section 2-402 [not adopted by North Dakota; North Dakota’s provision refers to N.D.C.C. § 47-18-01]), family allowances (Section 2-404 [N.D.C.C. § 30.1-07-02]), exempt property (Section 2-403 [N.D.C.C. § 30.1-07-01]), and enforceable claims. The term “claims” is defined in Section 1-201 [N.D.C.C. § 30.1-01-06] as including “liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.”

Comment to 2-205 [N.D.C.C. § 30.1-05-02(2)(b)]. This section, which in the 1990 version appeared in substance as a paragraph of a single, long section defining the augmented estate, establishes as the second component of the augmented estate the value of the decedent’s nonprobate transfers to others. In the 1990 version, the term “reclaimable estate” was used rather than the term “nonprobate transfers to others”.

This component is divided into three basic categories: (1) property owned or owned in substance by the decedent immediately before death that passed outside probate to persons other than the surviving spouse; (2) property transferred by the decedent during marriage that passed outside probate to persons other than the surviving spouse; and (3) property transferred by the decedent during marriage and during the two-year period next preceding the decedent’s death. Various aspects of each category and each subdivision within each category are discussed and illustrated below.

Paragraph (1)-Property Owned or Owned in Substance by the Decedent. This category covers property that the decedent owned or owned in substance immediately before death and that passed outside probate at the decedent’s death to a person or persons other than the surviving spouse.

Paragraph (1) subdivides this category into four specific components:

(i) Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(ii) The decedent’s fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent’s fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.

(iii) The decedent’s ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship. The amount included is the value of the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(iv) Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

With one exception for nonseverable joint tenancies (see Example 4 of this Section), each of the above components covers a type of asset of which the decedent could have become the full, technical owner by merely exercising his or her power of appointment, incident of ownership, or right of severance or withdrawal. Had the decedent exercised these powers or rights to become the full, technical owner, the decedent could have controlled the devolution of these assets by his or her will; by not exercising these powers or rights, the decedent allowed the assets to pass outside probate to persons other than the surviving spouse. Thus, in effect, property covered by these components passes at the decedent’s death by nonprobate transfer from the decedent to others. This is what justifies including these components in the augmented estate without regard to the person who created the decedent’s substantive ownership interest, whether the decedent or someone else, and without regard to when it was created, whether before or after the decedent’s marriage.

Although the augmented estate under the pre-1990 Code did not include life insurance, annuities, etc., payable to other persons, the revisions do include their value; this move recognizes that such arrangements were, under the pre-1990 Code, used to deplete the estate and reduce the spouse’s elective-share entitlement.

Various aspects of paragraph (1) are illustrated by the following examples. Other examples illustrating various aspects of this paragraph are Example 19 in this Comment, below, and Examples 20 and 21 in the Comment to Section 2-206, below. In each of the following examples, G is the decedent and S is the decedent’s surviving spouse.

Example 1-General Testamentary Power. G’s mother, M, created a testamentary trust, providing for the income to go to G for life, remainder in corpus to such persons, including G, G’s creditors, G’s estate, or the creditors of G’s estate, as G by will appoints; in default of appointment, to X. G died, survived by S and X. G’s will did not exercise his power in favor of S.

The value of the corpus of the trust at G’s death is not included in the augmented estate under paragraph (1)(i), regardless of whether G exercised the power in favor of someone other than S or let the power lapse, so that the trust corpus passed in default of appointment to X. Section 2-205(1)(i) only applies to presently exercisable general powers; G’s power was a general testamentary power. (Note that paragraph (2)(ii) does cover property subject to a general testamentary power, but only if the power was created by G during marriage. G’s general testamentary power was created by M and hence not covered by paragraph (2)(ii).)

Example 2-Nongeneral Power and “5-and-5” Power . G’s father, F, created a testamentary trust, providing for the income to go to G for life, remainder in corpus to such persons, except G, G’s creditors, G’s estate, or the creditors of G’s estate, as G by will appoints; in default of appointment, to X. G was also given a noncumulative annual power to withdraw an amount equal to the greater of $5,000 or five percent of the trust corpus. G died, survived by S and X. G did not exercise her power in favor of S.

G’s power over the remainder interest does not cause inclusion of the value of the full corpus in the augmented estate under paragraph (1)(i) because that power was a nongeneral power.

The value of the greater of $5,000 or five percent of the corpus of the trust at G’s death is included in the augmented estate under paragraph (1)(i), to the extent that that property passed at G’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse, because that portion of the trust corpus was subject to a presently exercisable general power of appointment held by G immediately before G’s death. No additional amount is included, however, whether G exercised the withdrawal power or allowed it to lapse in the years prior to G’s death. (Note that paragraph (3)(i) is inapplicable to this case. That paragraph only applies to property subject to powers created by the decedent during marriage that lapse within the two-year period next preceding the decedent’s death.)

Example 3-Revocable Inter-Vivos Trust. G created a revocable intervivos trust, providing for the income to go to G for life, remainder in corpus to such persons, except G, G’s creditors, G’s estate, or the creditors of G’s estate, as G by will appoints; in default of appointment, to X. G died, survived by S and X. G never exercised his power to revoke, and the corpus of the trust passed at G’s death to X.

Regardless of whether G created the trust before or after marrying S, the value of the corpus of the trust at G’s death is included in the augmented estate under paragraph (1)(i) because, immediately before G’s death, the trust corpus was subject to a presently exercisable general power of appointment (the power to revoke: see Section 2-201(6) [N.D.C.C. § 30.1-05-02(a)(6)]) held by G.

(Note that if G created the trust during marriage, paragraph (2)(ii) also requires inclusion of the value of the trust corpus. Because these two subparagraphs overlap, and because both subparagraphs include the same value, Section 2-208(c) [N.D.C.C. § 30.1-05-02(5)] provides that the value of the trust corpus is included under one but not both subparagraphs.)

Example 4-Joint Tenancy. G, X, and Y owned property in joint tenancy. G died, survived by S, X, and Y.

Because G’s fractional interest in the property immediately before death was one-third, and because that one-third fractional interest passed by right of survivorship to X and Y at G’s death, one-third of the value of the property at G’s death is included in the augmented estate under paragraph (1)(ii). This is the result whether or not under local law G had the unilateral right to sever her fractional interest. See Section 2-201(2) [N.D.C.C. § 30.1-05-02(a)(2)].

Example 5-TOD Registered Securities and POD Account. G registered securities that G owned in TOD form. G also contributed all the funds in a savings account that G registered in POD Form. X was designated to take the securities and Y was designated to take the savings account on G’s death. G died, survived by S, X, and Y.

Because G was the sole owner of the securities immediately before death (see Sections 6-302 and 6-306 [N.D.C.C. §§ 30.1-31-22 and 30.1-31-26]), and because ownership of the securities passed to X upon G’s death (see Section 6-307 [N.D.C.C. § 30.1-31-27]), the full value of the securities at G’s death is included in the augmented estate under paragraph (1)(iii). Because G contributed all the funds in the savings account, G’s ownership interest in the savings account immediately before death was 100 percent. See Section 6-211 [N.D.C.C. § 30.1-31-08]. Because that 100 percentage ownership interest passed by right of survivorship to Y at G’s death, the full value of the account at G’s death is included in the augmented estate under paragraph (1)(iii).

Example 6-Joint Checking Account. G, X, and Y were registered as co-owners of a joint checking account. G contributed 75 percent of the funds in the account. G died, survived by S, X, and Y.

G’s ownership interest in the account immediately before death, determined under Section 6-211 [N.D.C.C. § 30.1-31-08], was 75 percent of the account. Because that percentage ownership interest passed by right of survivorship to X and Y at G’s death, 75 percent of the value of the account at G’s death is included in the augmented estate under paragraph (1)(iii).

Example 7-Joint Checking Account. G’s mother, M, added G’s name to her checking account so that G could pay her bills for her. M contributed all the funds in the account. The account was registered in co-ownership form with right of survivorship. G died, survived by S and M.

Because G had contributed none of his own funds to the account, G’s ownership interest in the account immediately before death, determined under Section 6-211 [N.D.C.C. § 30.1-31-08], was zero. Consequently, no part of the value of the account at G’s death is included in the augmented estate under paragraph (1)(iii).

Example 8-Life Insurance. G, as owner of a life-insurance policy insuring her life, designated X and Y as the beneficiaries of that policy. G died owning the policy, survived by S, X, and Y.

The full value of the proceeds of that policy is included in the augmented estate under paragraph (1)(iv).

Paragraph (2)-Property Transferred by the Decedent During Marriage. This category covers property that the decedent transferred in specified forms during “marriage” (defined in Section 2-201(3) [N.D.C.C. § 30.1-05-02(a)(3)] as “any marriage of the decedent to the decedent’s surviving spouse”). If the decedent and the surviving spouse were married to each other more than once, transfers that took place during any of their marriages to each other count as transfers during marriage.

The word “transfer,” as it relates to a transfer by or of the decedent, is defined in Section 2-201(10) [N.D.C.C. § 30.1-05-02(a)(10)], as including “(A) an exercise or release of a presently exercisable general power of appointment held by the decedent, (B) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of appointment that the decedent created in himself [or herself] and of a power described in Section 2-205(2)(ii) that the decedent conferred on a nonadverse party.”

Paragraph (2) covers the following specific forms of transfer:

(i) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent’s right terminated at or continued beyond the decedent’s death. The amount included is the value of the fraction of the property to which the decedent’s right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(ii) Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent’s estate, or creditors of the decedent’s estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent’s death to or for the benefit of any person other than the decedent’s surviving spouse or to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.

Various aspects of paragraph (2) are illustrated by the following examples. Other examples illustrating various aspects of this paragraph are Examples 1 and 3, above, and Example 22 in the Comment to Section 2-206, below. In the following examples, as in the examples above, G is the decedent and S is the decedent’s surviving spouse.

Example 9-Retained Income Interest for Life. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to be paid annually to G for life, then for the corpus of the trust to go to X. G died, survived by S and X.

The value of the corpus of the trust at G’s death is included in the augmented estate under paragraph (2)(i). This paragraph applies to a retained income interest that terminates at the decedent’s death, as here. The amount included is the value of the property that passes outside probate to any person other than the decedent’s estate or surviving spouse, which in this case is the full value of the corpus that passes outside probate to X.

Had G retained the right to only one-half of the income, with the other half payable to Y for G’s lifetime, only one half of the value of the corpus at G’s death would have been included under paragraph (2)(i) because that paragraph specifies that “the amount included is the value of the fraction of the property to which the decedent’s right related.” Note, however, that if G had created the trust within two years before death, paragraph (3)(iii) would require the inclusion of the value at the date the trust was established of the other half of the income interest for G’s life and of the remainder interest in the other half of the corpus, each value to be reduced by as much as $10,000 as appropriate under the facts, taking into account other gifts made to Y and to X in the same year, if any.

Example 10-Retained Unitrust Interest for a Term. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for a fixed percentage of the value of the corpus of the trust (determined annually) to be paid annually to G for ten years, then for the corpus of the trust (and any accumulated income) to go to X. G died six years after the trust was created, survived by S and X.

The full value of the corpus at G’s death is included in the augmented estate under a combination of Sections 2-204 and 2-205(2)(i).

Section 2-205(2)(i) requires the inclusion of the commuted value of X’s remainder interest at G’s death. This paragraph applies to a retained income interest, which under Section 2-201(9) includes a unitrust interest. Moreover, Section 2-205(2)(i) not only applies to a retained income interest that terminates at the decedent’s death, but also applies to a retained income interest that continues beyond the decedent’s death, as here. The amount included is the value of the interest that passes outside probate to a person other than the decedent’s estate or surviving spouse, which in this case is the commuted value of X’s remainder interest at G’s death.

Section 2-204 requires the inclusion of the commuted value of the remaining four years of G’s unitrust interest because that interest passes through G’s probate estate to G’s devisees or heirs.

Because both the four-year unitrust interest and the remainder interest that directly succeeds it are included in the augmented estate, there is no need to derive separate values for X’s remainder interest and for G’s remaining unitrust interest. The sum of the two values will equal the full value of the corpus, and that is the value that is included in the augmented estate. (Note, however, that for purposes of Section 2-209 [N.D.C.C. § 30.1-05-03] (Sources from Which Elective Share Payable), it might become necessary to derive separate values for these two interests.)

Had the trust been revocable, the end-result would have been the same. The only difference would be that the revocabilty of the trust would cause paragraph (2)(i) to be inapplicable, but would also cause overlapping application of paragraphs (1)(i) and (2)(ii) to X’s remainder interest. Because each of these paragraphs yields the same value, Section 2-208(c) [N.D.C.C. § 30.1-05-02(5)] would require the commuted value of X’s remainder interest to be included in the augmented estate under any one, but only one, of them. Note that neither paragraphs (1)(i) nor (2)(ii) would apply to G’s remaining four-year term because that four-year term would have passed to G’s estate by lapse of G’s power to revoke. As above, the commuted value of G’s remaining four-year term would be included in the augmented estate under Section 2-204, obviating the need to derive separate valuations of G’s four-year term and X’s remainder interest.

Example 11-Personal Residence Trust. Before death, and during marriage, G created an irrevocable inter-vivos trust of G’s personal residence, retaining the right to occupy the residence for ten years, then for the residence to go to X. G died six years after the trust was created, survived by S and X.

The full value of the residence at G’s death is included in the augmented estate under a combination of Sections 2-204 and 2-205(2)(i).

Section 2-205(2)(i) requires the inclusion of the commuted value of X’s remainder interest at G’s death. This paragraph applies to a retained right to possession that continues beyond the decedent’s death, as here. The amount included is the value of the interest that passes outside probate to a person other than the decedent’s estate or surviving spouse, which in this case is the commuted value of X’s remainder interest at G’s death.

Section 2-204 requires the inclusion of the commuted value of G’s remaining four-year term because that interest passes through G’s probate estate to G’s devisees or heirs.

As in Example 10, there is no need to derive separate valuations of the remaining four-year term and the remainder interest that directly succeeds it. The sum of the two values will equal the full value of the residence at G’s death, and that is the amount included in the augmented estate. (Note, however, that for purposes of Section 2-209 [N.D.C.C. § 30.1-05-03] (Sources from Which Elective Share Payable), it might become necessary to derive separate values for these two interests.)

Example 12-Retained Annuity Interest for a Term. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for a fixed dollar amount to be paid annually to G for ten years, then for half of the corpus of the trust to go to X; the other half was to remain in trust for an additional five years, after which time the remaining corpus was to go to X. G died fourteen years after the trust was created, survived by S and X.

The value of the one-half of the corpus of the trust remaining at G’s death is included in the augmented estate under a combination of Sections 2-204 and 2-205(2)(i). The other one-half of the corpus of the trust that was distributed to X four years before G’s death is not included in the augmented estate.

Section 2-205(2)(i) requires the inclusion of the commuted value of X’s remainder interest in half of the corpus of the trust. This section applies to a retained income interest, which under Section 2-201(9) [N.D.C.C. § 30.1-05-02(a)(9)], includes an annuity interest that continues beyond the decedent’s death, as here. The amount included is the value of the interest that passes outside probate to a person other than the decedent’s estate or surviving spouse, which in this case is the commuted value of X’s remainder interest at G’s death.

Section 2-204 requires the inclusion of the commuted value of the remaining one year of G’s annuity interest in half of the corpus of the trust, which passed through G’s probate estate to G’s devisees of heirs.

There is no need to derive separate valuations of G’s remaining annuity interest and X’s remainder interest that directly succeeds it. The sum of the two values will equal the full value of the remaining one-half of the corpus of the trust at G’s death, and that is the amount included in the augmented estate. (Note, however, that for purposes of Section 2- 209 [N.D.C.C. § 30.1-05-03] (Sources from Which Elective Share Payable), it might become necessary to derive separate values for these two interests.)

Had G died eleven years after the trust was created, so that the termination of half of the trust would have occurred within the two-year period next preceding G’s death, the value of the half of the corpus of the trust that was distributed to X ten years after the trust was created would also have been included in the augmented estate under Section 2-205(3)(i).

Example 13-Commercial Annuity. Before G’s death, and during marriage, G purchased three commercial annuities from an insurance company. Annuity One was a single-life annuity that paid a fixed sum to G annually and that contained a refund feature payable to X if G died within ten years.

Annuity Two was a single-life annuity that paid a fixed sum to G annually, but contained no refund feature. Annuity Three was a self and survivor annuity that paid a fixed sum to G annually for life, and then paid a fixed sum annually to X for life. G died six years after purchasing the annuities, survived by S and X.

Annuity One: The value of the refund payable to X at G’s death under Annuity One is included in the augmented estate under paragraph (2)(i). G retained an income interest, as defined in Section 2-201(9) [N.D.C.C. § 30.1-05-02(a)(9)], that terminated at G’s death. The amount included is the value of the interest that passes outside probate to a person other than the decedent’s estate or surviving spouse, which in this case is the refund amount to which X is entitled.

Annuity Two: Annuity Two does not cause any value to be included in the augmented estate because it expired at G’s death; although G retained an income interest, as defined in Section 2-201(9), that terminated at G’s death, nothing passed outside probate to any person other than G’s estate or surviving spouse.

Annuity Three: The commuted value at G’s death of the annuity payable to X under Annuity Three is included in the augmented estate under paragraph (2)(i). G retained an income interest, as defined in Section 2-201(9), that terminated at G’s death. The amount included is the value of the interest that passes outside probate to a person other than the decedent’s estate or surviving spouse, which in this case is the commuted value of X’s right to the annuity payments for X’s lifetime.

Example 14-Joint Power. Before death, and during marriage, G created an inter-vivos trust, providing for the income to go to X for life, remainder in corpus at X’s death to X’s then-living descendants, by representation; if none, to a specified charity. G retained a power, exercisable only with the consent of X, allowing G to withdraw all or any portion of the corpus at any time during G’s lifetime. G died without exercising the power, survived by S and X.

The value of the corpus of the trust at G’s death is included in the augmented estate under paragraph (2)(ii). This paragraph applies to a power created by the decedent over the corpus of the trust that is exercisable by the decedent “in conjunction with any other person,” who in this case is X. Note that the fact that X has an interest in the trust that would be adversely affected by the exercise of the power in favor of G is irrelevant. The amount included is the full value of the corpus of the trust at G’s death because the power related to the full corpus of the trust and the full corpus passed at the decedent’s death, by lapse or default of the power, to a person other than the decedent’s estate or surviving spouse-X, X’s descendants, and the specified charity.

Example 15-Power in Nonadverse Party. Before death, and during marriage, G created an inter-vivos trust, providing for the income to go to X for life, remainder in corpus to X’s then-living descendants, by representation; if none, to a specified charity. G conferred a power on the trustee, a bank, to distribute, in the trustee’s complete and uncontrolled discretion, all or any portion of the trust corpus to G or to X. One year before G’s death, the trustee distributed $50,000 of trust corpus to G and $40,000 of trust corpus to X. G died, survived by S and X.

The full value of the portion of the corpus of the trust remaining at G’s death is included in the augmented estate under paragraph (2)(ii). This paragraph applies to a power created by the decedent over the corpus of the trust that is exercisable by a “nonadverse party.” As defined in Section 2-201(4) [N.D.C.C. § 30.1-05-02(a)(4)], the term “nonadverse party” is “a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that he [or she] possesses respecting the trust or other property arrangement.” The trustee in this case is a nonadverse party. The amount included is the full value of the corpus of the trust at G’s death because the trustee’s power related to the full corpus of the trust and the full corpus passed at the decedent’s death, by lapse or default of the power, to a person other than the decedent’s estate or surviving spouse-X, X’s descendants, and the specified charity.

In addition to the full value of the remaining corpus at G’s death, an additional amount is included in the augmented estate because of the $40,000 distribution of corpus to X within two years before G’s death. As defined in Section 2-201(10) [N.D.C.C. § 30.1-05-02(a)(10)], a transfer of the decedent includes the exercise “of a power described in Section 2-205(2)(ii) that the decedent conferred on a nonadverse party.” Consequently, the $40,000 distribution to X is considered to be a transfer of the decedent within two years before death, and is included in the augmented estate under paragraph (3)(iii) to the extent it exceeded $10,000 of the aggregate gifts to X that year. If no other gifts were made to X in that year, the amount included would be $30,000 ($40,000 — $10,000).

Paragraph (3)-Property Transferred by the Decedent During Marriage and During the Two-Year Period Next Preceding the Decedent’s Death. This paragraph-called the two-year rule-requires inclusion in the augmented estate of the value of property that the decedent transferred in specified forms during marriage and within two years of death. The word “transfer,” as it relates to a transfer by or of the decedent, is defined in Section 2-201(10) [N.D.C.C. § 30.1-05-02(a)(10)], as including “(A) an exercise or release of a presently exercisable general power of appointment held by the decedent, (B) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of appointment that the decedent created in himself [or herself] and of a power described in Section 2-205(2)(ii) that the decedent conferred on a nonadverse party.”

The two-year rule of paragraph (3) covers the following specific forms of transfer:

(i) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph (2), if the right, interest, or power had not terminated until the decedent’s death. The amount included is the value of the property that would have been included under those paragraphs if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or surviving spouse. As used in this subparagraph “termination,” with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (1)(i), “termination” occurs when the power terminated by exercise or release, but not otherwise.

(ii) Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under paragraph (1)(iv) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(iii) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent’s surviving spouse. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.

Various aspects of paragraph (3) are illustrated by the following examples. Other examples illustrating various aspects of this paragraph are Examples 2, 9, 12, 14, and 15, above, and Examples 33 and 34 in the Comment to Section 2-207, below. In the following examples, as in the examples above, G is the decedent and S is the decedent’s surviving spouse.

Example 16-Retained Income Interest Terminating Within Two Years Before Death. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for ten years, then for the corpus of the trust to go to X. G died 11 years after the trust was created, survived by S and X. G was married to S when the trust terminated.

The full value of the corpus of the trust at the date of its termination is included in the augmented estate under paragraph (3)(i). The full value of the corpus at death would have been included in the augmented estate under paragraph (2)(i) had G’s income interest not terminated until death; G’s income interest terminated within the two-year period next preceding G’s death; G was married to S when the trust was created and when the income interest terminated; and the trust corpus upon termination passed to a person other than S, G, or G’s estate.

Example 17-Personal Residence Trust Terminating Within Two Years Before Death. Before death, and during marriage, G created an irrevocable inter-vivos trust of G’s personal residence, retaining the right to occupy the residence for ten years, then for the residence to go to X. G died eleven years after the trust was created, survived by S and X. G was married to S when the right to possession terminated.

The full value of the residence at the date the trust terminated is included in the augmented estate under paragraph (3)(i). The full value of the residence would have been included in the augmented estate under paragraph (2)(i) had G’s right to possession not terminated until death; G’s right to possession terminated within the two-year period next preceding G’s death; G was married to S when the trust was created and when the right to possession terminated; and the residence passed upon termination to a person other than S, G, or G’s estate.

Example 18-Irrevocable Assignment of Life-Insurance Policy Within Two Years Before Death. In Example 8, G irrevocably assigned the lifeinsurance policy to X and Y within two years preceding G’s death. G was married to S when the policy was assigned. G died, survived by S, X, and Y.

The full value of the proceeds are included in the augmented estate under paragraph (3)(ii). The full value of the proceeds would have been included in the augmented estate under paragraph (1)(iv) had G owned the policy at death; G assigned the policy within the two-year period next preceding G’s death; G was married to S when the policy was assigned; and the proceeds were payable to a person other than S or G’s estate.

Example 19-Property Purchased in Joint Tenancy Within Two Years Before Death. Within two years before death, and during marriage, G and X purchased property in joint tenancy; G contributed $75,000 of the $100,000 purchase price and X contributed $25,000. G died, survived by S and X.

Regardless of when or by whom the property was purchased, the value at G’s death of G’s fractional interest of one-half is included in the augmented estate under paragraph (1)(ii) because G’s half passed to X as surviving joint tenant. Because the property was purchased within two years before death, and during marriage, and because G’s contribution exceeded the value of G’s fractional interest in the property, the excess contribution of $25,000 constitutes a gift to X within the two-year period next preceding G’s death. Consequently, an additional $15,000 ($25,000 minus $10,000) is included in the augmented estate under paragraph (3)(iii) as a gift to X.

Had G provided all of the $100,000 purchase price, then paragraph (3)(iii) would require $40,000 ($50,000 minus $10,000) to be included in the augmented estate (in addition to the inclusion of one-half the value of the property at G’s death under paragraph (1)(ii).

Had G provided one-half or less of the $100,000 purchase price, then G would not have made a gift to X within the two-year period next preceding G’s death. Half the value of the property at G’s death would still be included in the augmented estate under paragraph (1)(ii), however.

Cross Reference. On obtaining written spousal consent to assure qualification for the charitable deduction for charitable remainder trusts or outright charitable donations, see the Comment to Section 2-208.

Comment to 2-206 [N.D.C.C. § 30.1-05-02(2)(c)]. This section, which in the 1990 version appeared in substance as a paragraph of a single, long section defining the augmented estate, establishes as the third component of the augmented estate the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse. Under this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse:

consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:

the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,
the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and
all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Property passing to the surviving spouse under the federal Social Security system is excluded.

Various aspects of Section 2-206 are illustrated by the following examples. In these examples, as in the examples in the Comment to Section 2-205, above, G is the decedent and S is the decedent’s surviving spouse.

Example 20-Tenancy by the Entirety. G and S own property in tenancy by the entirety. G died, survived by S.

Because the definition in Section 1-201 [N.D.C.C. § 30.1-01-06] of “joint tenants with the right of survivorship” includes tenants by the entirety, the provisions of Section 2-206 relating to joint tenancies with right of survivorship apply to tenancies by the entirety.

In total, therefore, the full value of the property is included in the augmented estate-G’s one-half under Section 2-206(1) and S’s one-half under Section 2-207(a)(1)(i).

Section 2-206(1) requires the inclusion of the value of G’s one-half fractional interest because it passed to S as surviving joint tenant.

Section 2-207(a)(1)(i) requires the inclusion of S’s one-half fractional interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G predeceased S. Immediately before G’s death, S’s fractional interest was then a one-half fractional interest. Despite Section 2-205(1)(ii), none of S’s fractional interest is included under Section 2-207(a)(2) because that provision does not apply to fractional interests that are included under Section 2-207(a)(1)(i). Consequently, the value of S’s one-half interest is included under Section 2-207(a)(1)(i) but not under Section 2-207(a)(2).

Example 21-Joint Tenancy. G, S, and X own property in joint tenancy. G died more than two years after the property was titled in that form, survived by S and X.

In total, two-thirds of the value of the property at G’s death is included in the augmented estate-one-sixth under Section 2-205, one-sixth under Section 2-206, and one-third under Section 2-207.

Section 2-205(1)(ii) requires the inclusion of half of the value of G’s one-third fractional interest because that half passed by right of survivorship to X.

Section 2-206(1) requires the inclusion of the value of the other half of G’s one-third fractional interest because that half passed to S as surviving joint tenant.

Section 2-207(a)(1)(i) requires the inclusion of the value of S’s one-third interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G predeceased S. Immediately before G’s death, S’s fractional interest was then a one-third fractional interest. Despite Section 2-205(1)(ii), none of S’s fractional interest is included under Section 2-207(a)(2) because that provision does not apply to fractional interests that are included under Section 2-207(a)(1)(i). Consequently, the value of S’s one-third fractional interest is included in the augmented estate under Section 2-207(a)(1)(i) but not under Section 2-207(a)(2).

Example 22-Income Interest Passing to Surviving Spouse. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the income to go to S for life, then for the corpus of the trust to go to X. G died, survived by S and X.

The full value of the corpus of the trust at G’s death is included in the augmented estate under a combination of Sections 2-205 and 2-206.

Section 2-206(3) requires the inclusion of the commuted value of S’s income interest. Note that, although S owns the income interest as of G’s death, the value of S’s income interest is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.

Section 2-205(2)(i) requires the inclusion of the commuted value of X’s remainder interest.

Example 23-Corpus Passing to Surviving Spouse. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the corpus of the trust to go to S. G died, survived by S.

The value of the corpus of the trust at G’s death is included in the augmented estate under Section 2-206(3). Note that, although S owns the corpus as of G’s death, the value of S’s ownership interest in the corpus is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.

Example 24-TOD Registered Securities, POD Account, and Life Insurance Payable to Surviving Spouse . In Examples 5 and 8 in the Comment to Section 2-205, G designated S to take the securities on death, registered S as the beneficiary of the POD savings account, and named S as the beneficiary of the life-insurance policy.

The same values that were included in the augmented estate under Section 2-205(1) in those examples are included in the augmented estate under Section 2-206.

Example 25-Joint Checking Account. G and S were registered as co-owners of a joint checking account. G contributed 75 percent of the funds in the account and S contributed 25 percent of the funds. G died, survived by S.

G’s ownership interest in the account immediately before death, determined under Section 6-211 [N.D.C.C. § 30.1-31-08], was 75 percent of the account. Because that percentage ownership interest passed by right of survivorship to S at G’s death, 75 percent of the value of the account at G’s death is included in the augmented estate under Section 2-206. The remaining 25 percent of the account is included in the augmented estate under Section 2-207.

Comment to 2-207 [N.D.C.C. § 30.1-05-02(2)(d)]. This section, which in the 1990 version appeared in substance as a paragraph of a single, long section defining the augmented estate, establishes as the fourth component of the augmented estate the value of property owned by the surviving spouse at the decedent’s death plus the value of amounts that would have been includible in the surviving spouse’s nonprobate transfers to others had the spouse been the decedent, reduced by enforceable claims against that property or that spouse, as provided in Sections 2-207(c) and 2-208(b)(1). Property owned by the decedent’s surviving spouse does not include the value of enhancements to the surviving spouse’s earning capacity (e.g., the value of a law, medical, or business degree).

Note that amounts that would have been includible in the surviving spouse’s nonprobate transfers to others under Section 2-205(1)(iv) are not valued as if he or she were deceased. Thus, if, at the decedent’s death, the surviving spouse owns a $1 million life-insurance policy on his or her life, payable to his or her sister, that policy would not be valued at its face value of $1 million, but rather could be valued under the method used in the federal estate tax under Treas. Reg. § 20.2031-8.

The purpose of combining the estates and nonprobate transfers of both spouses is to implement a partnership or marital-sharing theory. Under that theory, there is a fifty/fifty split of the property acquired by both spouses. Hence the redesigned elective share includes the survivor’s net assets in the augmented-estate entity. (Under a different rationale, no longer appropriate under the redesigned system, the pre-1990 version of Section 2-202 also added the value of property owned by the surviving spouse, but only to the extent the owned property had been derived from the decedent. An incidental benefit of the redesigned system is that this tracing-to-source feature of the pre-1990 version is eliminated.)

Various aspects of Section 2-207 are illustrated by the following examples. Other examples illustrating various aspects of this section are Examples 20, 21, 22, 23, and 25 in the Comment to Section 2-206. In the following examples, as in the examples in the Comments to Sections 2-205 and 2-206, above, G is the decedent and S is the decedent’s surviving spouse.

Example 26-Inter-Vivos Trust Created by Surviving Spouse; Corpus Payable to Spouse at Decedent’s Death. Before G’s death, and during marriage, S created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the corpus of the trust to go to S. G died, survived by S.

The value of the corpus of the trust at G’s death is included in the augmented estate under Section 2-207(a)(1) as either an interest owned by S at G’s death or as an interest that passed to the spouse by reason of G’s death.

Example 27-Inter-Vivos Trust Created by Another; Income Payable to Spouse for Life. Before G’s death, X created an irrevocable inter-vivos trust, providing for the income to go to S for life, then for the income to go to G for life, then for the corpus of the trust to go to Y. G died, survived by S and Y.

The commuted value of S’s income interest as of G’s death is included in the augmented estate under Section 2-207(a), as a property interest owned by the surviving spouse at the decedent’s death.

Example 28-Inter-Vivos Trust Created by Another; Income Payable to Spouse for Life. Before G’s death, X created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the income to go to S for life, then for the corpus of the trust to go to Y. G died, survived by S and Y.

The commuted value of S’s income interested at the decedent’s death is included in the augmented estate under Section 2-207(a)(1), as either a property interest owned by the surviving spouse at the decedent’s death or a property interest that passed to the surviving spouse by reason of the decedent’s death.

Example 29-Life Insurance on Decedent’s Life Owned by Surviving Spouse; Proceeds Payable to Spouse. Before G’s death, S bought a life-insurance policy on G’s life, naming S as the beneficiary. G died, survived by S.

The value of the proceeds of the life-insurance policy is included in the augmented estate under Section 2-207(a)(1), as property owned by the surviving spouse at the decedent’s death.

Example 30-Life Insurance on Decedent’s Life Owned by Another; Proceeds Payable to Spouse. Before G’s death, X brought a life-insurance policy on G’s life, naming S as the beneficiary. G died, survived by S.

The value of the proceeds of the life-insurance policy is included in the augmented estate under Section 2-207(a)(1)(iii), as property that passed to the surviving by reason of the decedent’s death.

Example 31-Joint Tenancy Between Spouse and Another. S and Y own property in joint tenancy. G died, survived by S and Y.

The value of S’s one-half fractional interest at G’s death is included in the augmented estate under Section 2-207(a)(1)(i). Despite Section 2-205(1)(ii), none of S’s fractional interest is included under Section 2-207(a)(2) because that provision does not apply to fractional interests required to be included under Section 2-207(a)(1)(i). Consequently, the value of S’s one-half is included under Section 2- 207(a)(1)(i) but not under Section 2-207(a)(2).

Example 32-Inter-Vivos Trust with Retained Income interest Created by Surviving Spouse. Before G’s death, and during marriage, S created an irrevocable inter-vivos trust, providing for the income to go to S for life, then for the income to go to G for life, then for the corpus of the trust to go to X. G died, survived by S and X.

The value of the trust corpus at G’s death is included in the augmented estate under Section 2-207(a)(2) because, if S were the decedent, that value would be included in the spouse’s nonprobate transfers to others under Section 2-205(2)(i). Note that property included under Section 2- 207 is valued at the decedent’s death, taking the fact that the decedent predeceased the spouse into account. Thus, G’s remainder in income for life is extinguished, and the full value of the corpus is included in the augmented estate under Section 2-207(a)(2). The commuted value of S’s income interest would also be included under Section 2-207(a)(1) but for the fact that Section 2-208(c) provides that when two provisions apply to the same property interest, the interest is not included under both provisions, but is included under the provision yielding the highest value. Consequently, since Section 2-207(a)(2) yields a higher value (the full corpus) than Section 2-207(a)(1) (the income interest), and since the income interest is part of the value of the corpus, and hence both provisions apply to the same property interest, the full corpus is included under Section 2-207(a)(2) and nothing is included under Section 2-207(a)(1).

Example 33-Inter-Vivos Trust Created by Decedent; Income to Surviving Spouse. More than two years before G’s death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to S for life, then for the corpus of the trust to go to X. G died, survived by S and X.

The commuted value of S’s income interest as of G’s death is included in the augmented estate under Section 2-207. If G had created the trust within the two-year period next preceding G’s death, the commuted value of X’s remainder interest as of the date of the creation of the trust (less $10,000, assuming G made no other gifts to X in that year) would also have been included in the augmented estate under Section 2- 205(3)(iii).

Example 34-Inter-Vivos Trust Created by Surviving Spouse; No Retained Interest or Power. More than two years before G’s death, and during marriage, S created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the corpus of the trust to go to Y. G died, survived by S and Y.

The value of the trust is not included in the augmented estate. If S had created the trust within the two-year period next preceding G’s death, the commuted value of Y’s remainder interest as of the date of the creation of the trust (less $10,000, assuming no other gifts to Y in that year) would have been included in the augmented estate under Section 2-207(a)(2) because if S were the decedent, the value of the remainder interest would have been included in S’s nonprobate transfers to others under Section 2-205(3)(iii).

Comment to 2-208 [N.D.C.C. § 30.1-05-02(3)–(5)]. Subsection (a) [N.D.C.C. § 30.1-05-02(3)]. This subsection excludes from the decedent’s nonprobate transfers to others the value of any property (i) to the extent that the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or (ii) if the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.

Consenting to Split-Gift Treatment Not Consent to the Transfer. Spousal consent to split-gift treatment under I.R.C. § 2513 does not constitute written joinder of or consent to the transfer by the spouse for purposes of subsection (a).

Obtaining the Charitable Deduction for Transfers Coming Within Section 2-205(2) or (3). Because, under Section 2-201(10) [N.D.C.C. § 30.1-05-02(a)(10)], the term “right to income” includes a right to payments under an annuity trust or a unitrust, the value of a charitable remainder trust established by a married grantor without written spousal consent or joinder would be included in the decedent’s nonprobate transfers to others under Section 2-205(2)(A). Consequently, a married grantor planning to establish a charitable remainder trust is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying for the charitable deduction.

Similarly, outright gifts made by a married donor within two years preceding death are included in the augmented estate under Section 2- 205(3)(C) to the extent that the aggregate gifts to any one donee exceed the amount excludable from taxable gifts under 26 U.S.C. Section 2503(b) [or its successor] on the date next preceding the date of the decedent’s death (or, if referring to federal law is considered an unlawful delegation of legislative power, $12,000) in either of the two years. Consequently, a married donor planning to donate more than that amount to any charitable organization within a twelve-month period is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2- 208(a), in order to be assured of qualifying for the charitable deduction.

Spousal Waiver of ERISA Benefits. Under the Employee Retirement Income Security Act (ERISA), death benefits under an employee benefit plan subject to ERISA must be paid in the form of an annuity to the surviving spouse. A married employee wishing to designate someone other than the spouse must obtain a waiver from the spouse. As amended in 1984 by the Retirement Equity Act, ERISA requires each employee benefit plan subject to its provisions to provide that an election of a waiver shall not take effect unless (i) the spouse of the participant consents in writing to such election, (ii) such election designates a beneficiary (or form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designation by the participant without any requirement of further consent by the spouse), and (iii) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public.

See 29 U.S.C. § 1055(c) (1988); Int.Rev.Code § 417(a). Any spousal waiver that complies with these requirements would satisfy Section 2-208(a) and would serve to exclude the value of the death benefits from the decedent’s nonprobate transfers to others.

Cross Reference. See also Section 2-213 and Comment.

Subsection (c) [N.D.C.C. § 30.1-05-02(5)] . The application of subsection (c) is illustrated in Example 32 in the Comment to Section 2-207.

Notes to Decisions

Computation of Elective Share.
Nonprobate Transfers to Others.
Presumption.

Computation of Elective Share.

Whether widow waived her right to claim an elective share was so interconnected with the unresolved issues of what she would receive under the will and the computation of the elective share, order denying her motion for an elective share was not appealable. Zimmerman v. Zimmerman (In re Estate of Zimmerman), 1997 ND 58, 561 N.W.2d 642, 1997 N.D. LEXIS 55 (N.D. 1997).

Nonprobate Transfers to Others.

Because individual retirement accounts (IRAs) are not pensions, and because IRAs are not specifically mentioned as excludable from the augmented estate under subdivision (1)(d), decedent spouse’s IRAs held in decedent’s name and payable to her children should have been included in her augmented estate. Luken v. Schulz (In re Estate of Luken), 551 N.W.2d 794, 1996 N.D. LEXIS 197 (N.D. 1996).

Presumption.

Business owner’s testimony did not provide enough evidence to rebut presumption that property owned by surviving spouse at decedent’s death was derived from decedent. Luken v. Schulz (In re Estate of Luken), 551 N.W.2d 794, 1996 N.D. LEXIS 197 (N.D. 1996).

Collateral References.

Determination of, and charges against, “augmented estate” upon which share of spouse electing to take against will is determined under Uniform Probate Code section 2-202, 63 A.L.R.4th 1173.

30.1-05-03. (2-209) Sources from which elective share payable.

In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others:
1. Amounts included in the augmented estate under subdivision a of subsection 2 of section 30.1-05-02 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under subdivision c of subsection 2 of section 30.1-05-02; and
2. Amounts included in the augmented estate under subdivision d of subsection 2 of section 30.1-05-02.
If, after the application of subsection 1, the elective-share amount is not fully satisfied or if the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent’s probate estate and in the decedent’s nonprobate transfers to others, other than amounts included under subparagraph a or b of paragraph 3 of subdivision b of subsection 2 of section 30.1-05-02, are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent’s probate estate and that portion of the decedent’s nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent’s probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.
If, after the application of subsections 1 and 2, the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent’s nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of that remaining portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Editorial Board Comment.

Section 2-209 [N.D.C.C. § 30.1-05-03] is an integral part of the overall redesign of the elective share. It establishes the priority to be used in determining the sources from which the elective-share amount is payable.

Subsection (a) [subsec. (1)]. Subsection (a) applies only to the elective-share amount determined under Section 2-202(a), not to the supplemental elective-share amount determined under Section 2-202(b) [N.D.C.C. § 30.1-05-01(1)]. Under subsection (a), the following are counted first toward satisfying the elective-share amount (to the extent they are included in the augmented estate):

amounts included in the augmented estate under Section 2-204 [N.D.C.C. § 30.1-05-02(2)(a)] which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206 [N.D.C.C. § 30.1-05-02(2)(c)], i.e., the value of the decedent’s nonprobate transfers to the surviving spouse, including the proceeds of insurance (including accidental death benefits) on the life of the decedent and benefits payable under a retirement plan in which the decedent was a participant, but excluding property passing under the Federal Social Security system; and
the marital-property portion of amounts included in the augmented estate under Section 2-207 [N.D.C.C. § 30.1-05-02(2)(d)].

Under subsection (b) [this subparagraph has been omitted from North Dakota’s adoption of this section], the marital-property portion of amounts included in the augmented estate under Section 2-207 is computed by multiplying the value of the amounts included in the augmented estate under Section 2-207 by the percentage of the augmented estate set forth in the schedule in Section 2-203(b) [not adopted by North Dakota] appropriate to the length of time the spouse and the decedent were married to each other.

If the combined value of the amounts described in subsection (a)(1) and (2) equals or exceeds the elective-share amount, the surviving spouse is not entitled to any further amount from the decedent’s probate estate or recipients of the decedent’s nonprobate transfers to others, unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2-202(b) [N.D.C.C. § 30.1-05-01(2)].

Subsections (c) and (d) [Subsec. (2) and (3)]. Subsections (c) and (d) apply to both the elective-share amount and the supplemental elective-share amount, if any. As to the elective-share amount determined under Section 2-202(a) [N.D.C.C. § 30.1-05-01(1)], the decedent’s probate estate and nonprobate transfers to others become liable only if and to the extent that the amounts described in subsection (a) are insufficient to satisfy the elective-share amount. The decedent’s probate estate and nonprobate transfers to others are fully liable for the supplemental elective-share amount determined under Section 2-202(b) [N.D.C.C. § 30.1-05-01(2)], if any.

Subsections (c) and (d) establish a layer of priority within the decedent’s net probate estate (other than assets passing to the surviving spouse by testate or intestate succession) and nonprobate transfers to others. The decedent’s probate estate and that portion of the decedent’s nonprobate transfers to others that was not included in the augmented estate under Section 2-205(1), (2), and 3(B) [N.D.C.C. § 30.1-05-02(2)(b)] are liable first. Only if and to the extent that those amounts are insufficient does the remaining portion of the decedent’s nonprobate transfers to others become liable.

Note that the exempt property and allowances provided by Sections 2-401 [N.D.C.C. § 30.1-07-00.1], 2-402 [not adopted by North Dakota, see N.D.C.C § 47-18-01], and 2-403 [N.D.C.C. § 30.1-07-01] are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts.

The provision that the spouse is charged with amounts that would have passed to the spouse but were disclaimed was deleted in 1993. That provision was introduced into the Code in 1975, prior to the addition of the QTIP provisions in the marital deduction of the federal estate tax. At that time, most devises to the surviving spouse were outright devises and did not require actuarial computation. Now, many if not most devises to the surviving spouse are in the form of an income interest that qualifies for the marital deduction under the QTIP provisions, and these devises require actuarial computations that should be avoided whenever possible.

The word “equitably” is eliminated from subsections (c) and (d) because it has caused confusion about whether it grants discretion to the court to apportion liability for the unsatisfied balance among the recipients of the decedent’s net probate estate and of that portion of the decedent’s nonprobate transfers to others in some proportion other than in proportion to the value of their interests therein. The intent of including that word in the earlier version was merely to describe the prescribed apportionment as “equitable,” not to grant authority to vary the prescribed apportionment [The word “equitably” has been retained in North Dakota’s version of this section; also note that subsection (e) of 2-209 has been omitted in North Dakota’s version].

30.1-05-04. (2-210) Personal liability of recipients.

Only original recipients of the decedent’s nonprobate transfers to others, and the donees of the recipients of the decedent’s nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse’s elective-share or supplemental elective-share amount. A person liable to make contribution may choose to give up the proportional part of the decedent’s nonprobate transfers to the person or to pay the value of the amount for which the person is liable.
If any section or part of any section of this chapter is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent’s nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit, is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of that payment or the value of that item of property or benefit, as provided in section 30.1-05-03, to the person who would have been entitled to it were that section or part of that section not preempted.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

Homestead exemption and allowance, see N.D.C.C. chs. 30-16 and 47-18.

Notes to Decisions

Waiver of Right to Elective Share.
- —In General.
- —Physical Separation.

Waiver of Right to Elective Share.

—In General.

Whether widow waived her right to claim an elective share was so interconnected with the unresolved issue of what she would receive under the will, order denying her motion for an elective share was not appealable. Zimmerman v. Zimmerman (In re Estate of Zimmerman), 1997 ND 58, 561 N.W.2d 642, 1997 N.D. LEXIS 55 (N.D. 1997).

Where prenuptial agreement contained no specific language declaring that wife waived rights she may have as a result of husband’s death, the agreement could not operate as a waiver of the wife’s elective share of the husband’s augmented estate. Zimmerman v. Zimmerman (In re Estate of Zimmerman), 1998 ND 116, 579 N.W.2d 591, 1998 N.D. LEXIS 121 (N.D. 1998).

—Physical Separation.

Physical separation of spouses, without divorce or legal separation, was insufficient to waive wife’s elective share under this subsection. Zimmerman v. Zimmerman (In re Estate of Zimmerman), 1998 ND 116, 579 N.W.2d 591, 1998 N.D. LEXIS 121 (N.D. 1998).

30.1-05-05. (2-211) Proceeding for elective share — Time limit.

Except as provided in subsection 2, the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent’s death, or within six months after the probate of the decedent’s will, whichever limitation later expires. The surviving spouse shall serve a copy of the petition for the elective share on, and shall give written notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective share. Except as provided in subsection 2, the decedent’s nonprobate transfers to others, described in subdivision b of subsection 2 of section 30.1-05-02, is not included within the augmented estate for the purpose of computing the elective share, if the petition is filed more than nine months after the decedent’s death.
Within nine months after the decedent’s death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent’s death, the spouse gives notice of the petition to all persons interested in the decedent’s nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election. If the court grants the spouse’s petition for an extension, the decedent’s nonprobate transfers to others, described in subdivision b of subsection 2 of section 30.1-05-02, are not excluded from the augmented estate for the purpose of computing the elective-share and supplemental elective-share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.
The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.
After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 30.1-05-03 and 30.1-05-04. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under sections 30.1-05-03 and 30.1-05-04, had relief been secured against all persons subject to contribution.
An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
A copy of the order or judgment of the court shall be forwarded immediately to the tax commissioner by the court.

Source:

S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 3; 1977, ch. 295, § 5; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Editorial Board Comment.

This section is revised to coordinate the terminology with that used in revised Section 2-205 [N.D.C.C. § 30.1-05-02(2)(b)] and with the fact that an election can be made by a conservator, guardian, or agent on behalf of a surviving spouse, as provided in Section 2-212(a) [N.D.C.C. § 30.1-05-06].

30.1-05-06. (2-212) Right of election personal to surviving spouse — Incapacitated surviving spouse.

The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under subsection 1 of section 30.1-05-05. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse’s behalf by the surviving spouse’s conservator, guardian, or agent under the authority of a power of attorney.
If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court shall set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under subsections 2 and 3 of section 30.1-05-03 and shall appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee shall administer the trust in accordance with the following terms and any additional terms as the court determines appropriate:
1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse exclusive of benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
2. During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
3. Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or to that predeceased spouse’s heirs under section 30.1-09.1-11.

Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 6; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Editorial Board Comment.

Subsection (a) [Subsection (1)]. Subsection (a) is revised to make it clear that the right of election may be exercised only by or on behalf of a living surviving spouse. If the election is not made by the surviving spouse personally, it can be made on behalf of the surviving spouse by the spouse’s conservator, guardian, or agent. In any case, the surviving spouse must be alive when the election is made. The election cannot be made on behalf of a deceased surviving spouse.

Alternative Subsection (b) [Subsection (2)]. For states that have not enacted the Uniform Custodial Trust Act, an Alternative subsection (b) is provided under which the court must set aside that portion of the elective-share and supplemental elective-share amounts which, under Section 2-209(c) and (d) [N.D.C.C. § 30.1-05-03(2) and (3)], are due from the decedent’s probate estate and nonprobate transfers to others and must appoint a trustee to administer that property for the support of the surviving spouse, in accordance with the terms set forth in Alternative subsection (b).

Planning for an Incapacitated Surviving Spouse Not Disrupted. Note that the portion of the elective-share or supplemental elective-share amounts that go into the custodial or support trust is that portion due from the decedent’s probate estate and nonprobate transfers to others under Section 2-209(c) and (d) [N.D.C.C. § 30.1-05-03(2) and (3)]. These amounts constitute the involuntary transfers to the surviving spouse under the elective-share system.

Amounts voluntarily transferred to the surviving spouse under the decedent’s will, by intestacy, or by nonprobate transfer, if any, do not go into the custodial or support trust. Thus, estate planning measures deliberately established for a surviving spouse who is incapacitated are not disrupted. For example, the decedent’s will might establish a trust that qualifies for or that can be elected as qualifying for the federal estate tax marital deduction. Although the value of the surviving spouse’s interests in such a trust count toward satisfying the elective-share amount under Section 2-209(a)(1) [N.D.C.C. § 30.1-05-03(1)(a)], the trust itself is not dismantled by virtue of Section 2-212(b) [N.D.C.C. § 30.1-05-06(2)] in order to force that property into the nonqualifying custodial or support trust.

Rationale. The approach of this section is based on a general expectation that most surviving spouses are, at the least, generally aware of and accept their decedents’ overall estate plans and are not antagonistic to them. Consequently, to elect the elective share, and not have the disposition of that part of it that is payable from the decedent’s probate estate and nonprobate transfers to others under Section 2-209(c) and (d) [N.D.C.C. § 30.1-05-03(2) and (3)] governed by subsections (b) and (c), the surviving spouse must not be an incapacitated person. When the election is made by or on behalf of a surviving spouse who is not an incapacitated person, the surviving spouse has personally signified his or her opposition to the decedent’s overall estate plan.

If the election is made on behalf of a surviving spouse who is an incapacitated person, subsections (b) and (c) control the disposition of that part of the elective-share amount or supplemental elective-share amount payable under Section 2-209(c) and (d) [N.D.C.C. § 30.1-05-03(2) and (3)] from the decedent’s probate estate and nonprobate transfers to others. The purpose of subsections (b) and (c), generally speaking, is to assure that that part of the elective share is devoted to the personal economic benefit and needs of the surviving spouse, but not to the economic benefit of the surviving spouse’s heirs or devisees.

30.1-05-07. (2-213) Waiver of right to elect and of other rights. [Repealed]

Repealed by S.L. 2013, ch. 121, § 2.

Effective Date.

The repeal of this section by section 2 of chapter 121, S.L. 2013 became effective August 1, 2013.

Note.

See now, generally, N.D.C.C. ch. 14-03.2, Uniform Premarital and Marital Agreements Act.

30.1-05-08. (2-214) Protection of payers and other third parties.

Although under section 30.1-05-02 a payment, item of property, or other benefit is included in the decedent’s nonprobate transfers to others, a payer or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent’s death, before the payer or other third party received written notice from the surviving spouse or spouse’s representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payer or other third party is liable only for actions taken two or more business days after the payer or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed. The written notice must indicate the name of the decedent, the date of the decedent’s death, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that the spouse intends to file a petition for the elective share or that a petition for the elective share has been filed. Any form of service of notice other than that described in subsection 2 is not sufficient to impose liability on a payer or other third party for actions taken pursuant to the governing instrument.
The written notice must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or third party in the same manner as a summons in a civil action. Notice to a sales representative of the payer or other third party does not constitute notice to the payer or other third party. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The availability of an action under this section does not prevent the payer or other third party from taking any other action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for any such payment, transfer, or deposit with the court, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or items of property and, upon its determination under subsection 4 of section 30.1-05-05, shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under subsection 1 of section 30.1-05-05, or, if filed, the demand for an elective share is withdrawn under subsection 3 of section 30.1-05-05, the court shall order disbursement to the designated beneficiary. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to or items of property transferred to or deposited with the court.
Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section.

Source:

S.L. 1995, ch. 322, § 4.

Editorial Board Comment.

This section provides protection to “payors” and other third parties who made payments or took any other action before receiving written notice of the spouse’s intention to make an election under this Part or that an election has been made. The term “payor” is defined in Section 1-201 [N.D.C.C. § 30.1-01-06] as meaning “a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.”

CHAPTER 30.1-06 Spouse and Children Unprovided for in Wills

Note.

Effective January 1, 1996, former chapter 30.1-06 was repealed by S.L. 1993, section 50, and a new chapter 30.1-06, enacted by S.L. 1993, chapter 334, § 16, was substituted therefor.

30.1-06-01. (2-301) Entitlement of spouse — Premarital will.

If the testator’s surviving spouse married the testator after the testator executed a will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under section 30.1-09-05 or 30.1-09-06 to such a child or to a descendant of such a child, unless:
1. It appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;
2. The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
3. The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under section 30.1-09-05 or 30.1-09-06 to a descendant of such a child, abate as provided in section 30.1-20-02.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 16; 1995, ch. 322, §§ 5, 27.

Editorial Board Comment.

Purpose and Scope of the Revisions. This section applies only to a premarital will, a will executed prior to the testator’s marriage to his or her surviving spouse. If the decedent and the surviving spouse were married to each other more than once, a premarital will is a will executed by the decedent at any time when they were not married to each other but not a will executed during a prior marriage. This section reflects the view that the intestate share of the spouse in that portion of the testator’s estate not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the anti-lapse statute) is what the testator would want the spouse to have if he or she had thought about the relationship of his or her old will to the new situation.

Under this section, a surviving spouse who married the testator after the testator executed his or her will may be entitled to a certain minimum amount of the testator’s estate. The surviving spouse’s entitlement under this section, if any, is granted automatically; it need not be elected. If the surviving spouse exercises his or her right to take an elective share, amounts provided under this section count toward making up the elective-share amount by virtue of the language in subsection (a) stating that the amount provided by this section is treated as “an intestate share.” Under Section 2-209(a)(1) [N.D.C.C. § 30.1-05-03(1)(a)], amounts passing to the surviving spouse by intestate succession count first toward making up the spouse’s elective-share amount.

Subsection (a) [subsection (1)]. Subsection (a) is revised to make it clear that a surviving spouse who, by a premarital will, is devised, under trust or not, less than the share of the testator’s estate he or she would have received had the testator died intestate as to that part of the estate, if any, not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the anti-lapse statute) is entitled to be brought up to that share. Subsection (a) was amended in 1993 to make it clear that any lapsed devise that passes under section 2-604 [N.D.C.C. § 30.1-09-06] to a child of the testator by a prior marriage, rather than only to a descendant of such a child, is covered.

Example. G’s will devised the residue of his estate “to my two children, A and B, in equal shares.” A and B are children of G’s prior marriage. G is survived by A and by G’s new spouse, X. B predeceases G, without leaving any descendants who survived G by 120 hours. Under Section 2-604 [N.D.C.C. § 30.1-09-06], B’s half of the residue passes to G’s child, A. A is a child of the testator’s prior marriage but not a descendant of B. X’s rights under Section 2-301 [N.D.C.C. § 30.1-06-01] are to take an intestate share in that portion of G’s estate not covered by the residuary clause.

The pre-1990 version of Section 2-301 was titled “Omitted Spouse,” and the section used phrases such as “fails to provide” and “omitted spouse.” The implication of the title and these phrases was that the section was inapplicable if the person the decedent later married was a devisee in his or her premarital will. It was clear, however, from the underlying purpose of the section that this was not intended. The Courts recognized this and refused to interpret the section that way, but in doing so they have been forced to say that a premarital will containing a devise to the person to whom the testator was married at death could still be found to “fail to provide” for the survivor in the survivor’s capacity as spouse. See Estate of Christensen, 665 P.2d 646 (Utah 1982); Estate of Ganier, 418 So.2d 256 (Fla.1982); Note, “The Problem of the ‘Un-omitted’ Spouse Under Section 2-301 of the [Pre-1990] Uniform Probate Code,” 52 U.Chi. L. Rev. 481 (1985). By making the existence and amount of a premarital devise to the spouse irrelevant, the revisions of subsection (a) make the operation of the statute more purposive.

Subsection (a)(1), (2), and (3) Exceptions [subsections (1)(a), (b) and (c)]. The moving party has the burden of proof on the exceptions contained in subsections (a)(1), (2), and (3). For a case interpreting the language of subsection (a)(3), see Estate of Bartell, 776 P.2d 885 (Utah 1989). This section can be barred by a premarital agreement, marital agreement, or waiver as provided in Section 2-213 [N.D.C.C. § 30.1-05-07].

Subsection (b) [subsection (2)]. Subsection (b) is also revised to provide that the value of any premarital devise to the surviving spouse, equitable or legal, is used first to satisfy the spouse’s entitlement under this section, before any other devises suffer abatement. This revision is made necessary by the revision of subsection (a): If the existence or amount of a premarital devise to the surviving spouse is irrelevant, any such devise must be counted toward and not be in addition to the ultimate share to which the spouse is entitled. Normally, a devise in favor of the person whom the testator later marries will be a specific or general devise, not a residuary devise. The effect under the pre-1990 version of subsection (b) was that the surviving spouse could take the intestate share under Section 2-301, which in the pre-1990 version was satisfied out of the residue (under the rules of abatement in Section 3-902 [N.D.C.C. § 30.1-0-20-02]), plus the devise in his or her favor. The revision of subsection (b) prevents this “double dipping,” so to speak.

Reference. The theory of this section is discussed in Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683, 748-51 (1992).

Notes to Decisions

Amount of Share of Omitted Spouse.
Devises Made In Anticipation of Marriage.
Joint Property.
Transfers Outside Will.

Amount of Share of Omitted Spouse.

The amount of an omitted spouse’s share under this section is not limited to the same extent as the amount of the elective share of a spouse under N.D.C.C. § 30.1-05-01; fact that omitted spouse was provided for by transfers outside the will in an amount in excess of one-third of the augmented estate did not, as a matter of law, establish that omitted spouse was not entitled to an intestate share of the estate. In re Estate of Knudsen, 322 N.W.2d 454, 1982 N.D. LEXIS 316 (N.D. 1982).

Intent that a transfer to a spouse outside of the will is in lieu of a testamentary provision may be shown from the amount of the transfer. In re Estate of Knudsen, 342 N.W.2d 387, 1984 N.D. LEXIS 230 (N.D. 1984).

Devises Made In Anticipation of Marriage.

Where decedent had a new will drawn up in which he left the bulk of his estate to his “wife,” where a footnote appearing in the document indicated that the will was prepared in anticipation of his wedding, and where the decedent died three days before his wedding, the probate court did not err in ruling that the terms “spouse” and “wife” as used and defined in the decedent’s will were descriptive of his fiancee and did not create a condition precedent to her right to receive the devises because the will’s definition of “spouse” and references to the decedent’s fiancee as his “spouse” were descriptive terms that did not create a condition precedent; rather, the footnote evidenced the decedent’s intent that the will be operative before and after the marriage. The district court properly concluded that the fiancee was an unconditional devisee entitled to take under the decedent’s will; the fiancee’s right to the devises to her vested at the decedent’s death. Estate of Paulson v. Risovi, 2012 ND 40, 812 N.W.2d 476, 2012 N.D. LEXIS 40 (N.D. 2012).

Joint Property.

N.D.C.C. § 30.1-31-06, which simply provides that validity of a joint account with right of survivorship is not to be determined by requirements for wills, does not preclude consideration of joint bank accounts and certificates of deposits as transfers for purposes of omitted spouse statute. In re Estate of Frandson, 356 N.W.2d 125, 1984 N.D. LEXIS 393 (N.D. 1984).

Transfers Outside Will.

Life insurance benefits and joint tenancy arrangements constitute “transfers” outside the will. In re Estate of Knudsen, 342 N.W.2d 387, 1984 N.D. LEXIS 230 (N.D. 1984).

Collateral References.

Descent and Distribution 52.

23 Am. Jur. 2d, Descent and Distribution, § 109 et seq.80 Am Jur 2d Wills § 1369 et seq.

26B C.J.S. Descent and Distribution, §§ 60-62.

30.1-06-02. (2-302) Omitted children.

Except as provided in subsection 2, if a testator fails to provide in the will for any of the testator’s children born or adopted after the execution of the will, the omitted afterborn or after-adopted child receives a share in the estate as follows:
1. If the testator had no child living when the testator executed the will, an omitted afterborn or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
2. If the testator had one or more children living when the testator executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted afterborn or after-adopted child is entitled to share in the testator’s estate as follows:
  1. The portion of the testator’s estate in which the omitted afterborn or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.
  2. The omitted afterborn or after-adopted child is entitled to receive the share of the testator’s estate, as limited in paragraph 1, that the child would have received had the testator included all omitted afterborn and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.
  3. To the extent feasible, the interest granted an omitted afterborn or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.
  4. In satisfying a share provided by this subdivision, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
Neither subdivision a nor subdivision b of subsection 1 applies if:
1. It appears from the will that the omission was intentional; or
2. The testator provided for the omitted afterborn or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
If at the time of execution of the will the testator fails to provide in the will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted afterborn or after-adopted child.
In satisfying a share provided by subdivision a of subsection 1 or subsection 3, devises made by the will abate under section 30.1-20-02.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 16; 1995, ch. 322, §§ 6, 27.

Editorial Board Comment.

This section provides for both the case where a child was born or adopted after the execution of the will and not foreseen at the time and thus not provided for in the will, and the rare case where a testator omits one of his or her children because of the mistaken belief that the child is dead.

Basic Purposes and Scope of Revisions. This section is substantially revised. The revisions have two basic objectives. The first basic objective is to provide that a will that devised, under trust or not, all or substantially all of the testator’s estate to the other parent of the omitted child prevents an after-born or after-adopted child from taking an intestate share if none of the testator’s children was living when he or she executed the will. (Under this rule, the other parent must survive the testator and be entitled to take under the will.)

Under the pre-1990 Code, such a will prevented the omitted child’s entitlement only if the testator had one or more children living when he or she executed the will. The rationale for the revised rule is found in the empirical evidence (cited in the Comment to section 2-102 [N.D.C.C. § 30.1-04-02]) that suggests that even testators with children tend to devise their entire estates to their surviving spouses, especially in smaller estates. The testator’s purpose is not to disinherit the children; rather, such a will evidences a purpose to trust the surviving parent to use the property for the benefit of the children, as appropriate. This attitude of trust of the surviving parent carries over to the case where none of the children have been born when the will is executed.

The second basic objective of the revisions is to provide that if the testator had children when he or she executed the will, and if the will made provision for one or more of the then-living children, an omitted after-born or after-adopted child does not take a full intestate share (which might be substantially larger or substantially smaller than given to the living children). Rather, the omitted after-born or after-adopted child participates on a pro rata basis in the property devised, under trust or not, to the then-living children.

A more detailed description of the revised rules follows.

No Child Living When Will Executed. If the testator had no child living when he or she executed the will, subsection (a)(1) [subsection 1(a)] provides that an omitted after-born or after-adopted child receives the share he or she would have received had the testator died intestate, unless the will devised, under trust or not, all or substantially all of the estate to the other parent of the omitted child. If the will did devise all or substantially all of the estate to the other parent of the omitted child, and if that other parent survives the testator and is entitled to take under the will, the omitted after-born or after-adopted child receives no share of the estate. In the case of an after-adopted child, the term “other parent” refers to the other adopting parent. (The other parent of the omitted child might survive the testator, but not be entitled to take under the will because, for example, that devise to the other parent was revoked under Section 2-803 or 2-804 [N.D.C.C. § 30.1-10-03 or 30.1-10-04].)

One or More Children Living When Will Executed. If the testator had one or more children living when the will was executed, subsection (a)(2) [subsection (1)(b)], which implements the second basic objective stated above, provides that an omitted after-born or after-adopted child only receives a share of the testator’s estate if the testator’s will devised property or an equitable or legal interest in property to one or more of the children living at the time the will was executed; if not, the omitted after-born or after-adopted child receives nothing.

Subsection (a)(2) [subsection (1)(b)] is modeled on N.Y. Est. Powers & Trusts Law § 5-3.2. Subsection (a)(2) is illustrated by the following example.

Example. When G executed her will, she had two living children, A and B. Her will devised $7,500 to each child. After G executed her will, she had another child, C.

C is entitled to $5,000. $2,500 (1/3 of $7,500) of C’s entitlement comes from A’s $7,500 devise (reducing it to $5,000); and $2,500 (1/3 of $7,500) comes from B’s $7,500 devise (reducing it to $5,000).

Variation. If G’s will had devised $10,000 to A and $5,000 to B, C would be entitled to $5,000. $3,333 (1/3 of $10,000) of C’s entitlement comes from A’s $10,000 devise (reducing it to $6,667); and $1,667 (1/3 of $5,000) comes from B’s $5,000 devise (reducing it to $3,333).

Subsection (b) [subsection (2)] Exceptions. To preclude operation of subsection (a)(1) or (a)(2), the testator’s will need not make any provision, even nominal in amount, for a testator’s present or future children; under subsection (b)(1) [subsection (2)(a)], a simple recital in the will that the testator intends to make no provision for then living children or any the testator thereafter may have would be sufficient.

For a case applying the language of subsection (b)(2) [subsection (2)(b)], in the context of the omitted spouse provision, see Estate of Bartell, 776 P.2d 885 (Utah 1989).

The moving party has the burden of proof on the elements of subsections (b)(1) and (b)(2) [subsection (2)(a) and (2)(b)].

Subsection (c) [subsection (3)]. Subsection (c) [subsection (3)] addresses the problem that arises if at the time of execution of the will the testator fails to provide in his or her will for a living child solely because he or she believes the child to be dead. Extrinsic evidence is admissible to determine whether the testator omitted the living child solely because he or she believed the child to be dead. Cf. Section 2-601, Comment. If the child was omitted solely because of that belief, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

Abatement Under Subsection (d) [subsection (4)]. Under subsection (d) [subsection (4)] and Section 3-902 [N.D.C.C. § 30.1-20-02], any intestate estate would first be applied to satisfy the intestate share of an omitted after-born or after-adopted child under subsection (a)(1) [subsection (1)(a)].

Notes to Decisions

Child Born Before Will Made.
Conflict with Section 30.1-15-07.
Presumption.

Child Born Before Will Made.

This section, the current pretermitted children statute, did not apply to case where child was born before testator’s will was executed; mere omission of child from the 1987 will was insufficient to raise an inference that child was omitted from testator’s will solely because he believed she was dead. Cates v. Pfeifer, 460 N.W.2d 699 (N.D. 1990).

Conflict with Section 30.1-15-07.

Although N.D.C.C. § 30.1-15-07 generally recognizes mistake, along with several other grounds, as a basis for contesting the validity of a will, this section specifically controls whether the omission of a child from a will was because of mistake or was intentional. Cates v. Pfeifer, 460 N.W.2d 699 (N.D. 1990).

Presumption.

This section has reversed the presumption of unintentional omission on which former N.D.C.C. § 56-04-17 was based, and is based on a presumption that a testator’s failure to provide for a child living at the time the will was executed was intentional. Cates v. Pfeifer, 460 N.W.2d 699 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Parol Testimony Allowed.

Parol testimony was admissible to show that a child omitted from a will was intentionally omitted. Schultz v. Schultz, 19 N.D. 688, 125 N.W. 555, 1910 N.D. LEXIS 28 (N.D. 1910).

Prima Facie Presumption.

The omission to provide for a child or the issue of deceased children in a will merely raised a prima facie presumption that such issue were not intentionally omitted and such presumption was rebuttable by extrinsic evidence. In re Estate of Blank, 219 N.W.2d 815 (N.D. 1974), decided prior to the enactment of this section.

Unexplained Omission.

The unexplained omission of a child in a will did not necessarily invalidate instrument, though will could be ineffectual as to such child, and distribution as to him would be uninfluenced by provisions of will. Schultz v. Schultz, 19 N.D. 688, 125 N.W. 555, 1910 N.D. LEXIS 28 (N.D. 1910); Lowery v. Hawker, 22 N.D. 318, 133 N.W. 918, 1911 N.D. LEXIS 54 (N.D. 1911).

The unexplained omission of a child in a will did not necessarily invalidate such instrument, although it could be ineffectual as to such child. Child could appear in probate proceedings and demand distribution of estate which, as to him, would be uninfluenced by the provisions of the will. Lowery v. Hawker, 22 N.D. 318, 133 N.W. 918, 1911 N.D. LEXIS 54 (N.D. 1911).

Collateral References.

Descent and Distribution 47.

79 Am Jur 2d Wills § 556.

26A C.J.S. Descent and Distribution, § 45.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 A.L.R.4th 947.

CHAPTER 30.1-07 Exempt Property and Allowances

General Editorial Board Comment.

For decedents who die domiciled in this State, this part grants various allowances to the decedent’s surviving spouse and certain children. The allowances have priority over unsecured creditors of the estate and persons to whom the estate may be devised by will. If there is a surviving spouse, all of the allowances described in this Part, which (as revised to adjust for inflation) total $25,000, plus whatever is allowed to the spouse for support during administration, normally pass to the spouse. If the surviving spouse and minor or dependent children live apart from one another, the minor or dependent children may receive some of the support allowance. If there is no surviving spouse, minor or dependent children become entitled to the homestead exemption of $15,000 and to support allowances. The exempt property section confers rights on the spouse, if any, or on all children, to $10,000 in certain chattels, or funds if the unencumbered value of chattels is below the $10,000 level. This provision is designed in part to relieve a personal representative of the duty to sell household chattels when there are children who will have them.

These family protection provisions supply the basis for the important small estate provisions of Article III, Part 12 [N.D.C.C. § ch. 30.1-23].

States adopting the Code may see fit to alter the dollar amounts suggested in these sections, or to vary the terms and conditions in other ways so as to accommodate existing traditions. Although creditors of estates would be aided somewhat if all family exemption provisions relating to probate estates were the same throughout the country, there is probably less need for uniformity of law regarding these provisions than for any of the other parts of this article. Still, it is quite important for all states to limit their homestead, support allowance and exempt property provisions, if any, so that they apply only to estates of decedents who were domiciliaries of the state.

Notice that under Section 2-104 [N.D.C.C. § 30.1-04-04] a spouse or child claiming under this Part must survive the decedent by 120 hours.

30.1-07-00.1. (2-401) Applicable law.

This chapter applies to the estate of a decedent who dies domiciled in this state. The rights to homestead allowance, exempt property, and family allowance for a decedent who dies not domiciled in this state are governed by the law of the decedent’s domicile at death.

Source:

S.L. 1993, ch. 334, § 17; 1995, ch. 322, § 27.

30.1-07-01. (2-403) Exempt property.

In addition to the homestead defined in section 47-18-01, the decedent’s surviving spouse is entitled from the estate to a value, not exceeding fifteen thousand dollars in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent’s minor children, whom the decedent was obligated to support and children who were in fact being supported by the decedent, are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than fifteen thousand dollars, or if there is not fifteen thousand dollars worth of exempt property in the estate, the spouse or such children are entitled to other assets of the estate, if any, to the extent necessary to make up the fifteen thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate succession, or by way of elective share.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 18; 1995, ch. 322, § 27; 2009, ch. 283, § 16.

Effective Date.

The 2009 amendment of this section by section 16 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

As originally adopted in 1969, the dollar amount exempted was set at $3,500. To adjust for inflation, the amount was increased to $10,000 in 1990 and to $15,000 in 2008. The dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109 [not adopted by North Dakota].

Unlike the exempt amount described in Sections 2-402 [not adopted by North Dakota; reference is made to the homestead exemption of N.D.C.C. § 47-18-01] and 2-404 [N.D.C.C. § 30.1-07-02], the exempt amount described in this section is available in a case in which the decedent left no spouse but left only adult children. The provision in this section that establishes priorities is required because of possible difference between beneficiaries of the exemptions described in this section and those described in Sections 2-402 and 2-404.

Section 2-204 [N.D.C.C. § 30.1-05-02(2)(a)] covers waiver of exempt property rights. This section indicates that a decedent’s will may put a spouse to an election with reference to exemptions, but that no election is presumed to be required.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

Notes to Decisions

Disinherited Child.

A child who was specifically disinherited by a will was entitled to exempt property allowance under this section. Cates v. Pfeifer, 460 N.W.2d 699 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Antenuptial Agreement.

A wife’s antenuptial agreement that she should receive out of her husband’s estate, in case of his death prior to hers, the use of the homestead for life and two thousand dollars, and no more, did not deprive her of the statutory exemptions. Herr v. Herr, 45 N.D. 492, 178 N.W. 443, 1920 N.D. LEXIS 155 (N.D. 1920).

An antenuptial agreement to accept a stated sum in lieu of the widow’s property rights or claims did not prevent the widow from claiming exemptions from the husband’s estate, since her right to exemptions was not in the nature of an interest in the property, but was a preferred claim against the estate. Bender v. Bender, 64 N.D. 740, 256 N.W. 222, 1934 N.D. LEXIS 262 (N.D. 1934).

Constitutional Exemption.

Former personal property exemption section was not an exemption statute as the term was used in the constitution. Farmers State Bank v. Smith, 36 N.D. 225, 162 N.W. 302, 1917 N.D. LEXIS 181 (N.D. 1917).

Failure to Appeal.

One who passively permitted the entry of the final decree of distribution without claiming the exemption, or without seeking to set aside the decree or to appeal therefrom, could not thereafter question the validity of the decree on a ground which could have been presented on appeal. Fischer v. Dolwig, 39 N.D. 161, 166 N.W. 793, 1918 N.D. LEXIS 7 (N.D. 1918).

Inheritance.

Former section was one of exemption, and not of inheritance. Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524, 1917 N.D. LEXIS 45 (N.D. 1917).

Other Property.

Under C.L. 1913, § 8725, surviving husband or wife of the deceased person or, in case of his or her death, the minor children of a deceased person were entitled to the property absolutely exempt, and other property amounting to fifteen hundred dollars. Woods v. Teeson, 31 N.D. 610, 154 N.W. 797, 1915 N.D. LEXIS 219 (N.D. 1915); Charlson v. Charlson, 48 N.D. 851, 187 N.W. 418, 1922 N.D. LEXIS 107 (N.D. 1922).

Property for Family Use.

Property set apart by probate court for the use of the family of the decedent did not belong to the assets of the estate to be distributed to the heirs of the decedent. FORE v. FORE, 2 N.D. 260, 50 N.W. 712, 1891 N.D. LEXIS 50 (N.D. 1891); Bertsch v. Clooten, 51 N.D. 733, 200 N.W. 904, 1924 N.D. LEXIS 69 (N.D. 1924).

Rent for Devised Land.

A widow was entitled to rent for land devised to her absolutely and utilized for the benefit of the estate. In re Korsmo's Estate, 56 N.D. 927, 220 N.W. 128, 1928 N.D. LEXIS 216 (N.D. 1928).

The sale of exempt property would not be set aside as fraudulent at the instance of a creditor. Dakota Trust Co. v. Headland, 57 N.D. 810, 224 N.W. 220, 1929 N.D. LEXIS 329 (N.D. 1929).

Collateral References.

Executors and Administrators 173-201.

31 Am Jur 2d Executors and Administrators § 953; 80 Am Jur 2d Wills § 1415.

34 C.J.S. Executors and Administrators, §§ 323-366.

Foreign state: allowance in state of decedent’s domicil for widow’s or children’s support as enforceable against decedent’s real estate, or proceeds thereof, in another state, 13 A.L.R.2d 973.

Separation agreement as barring right to statutory allowance, 34 A.L.R.2d 1020, 1039.

Extra-judicial separation as affecting surviving spouse’s right to widow’s allowance, 34 A.L.R.2d 1056.

What is included in term “family” or “household” in statutes relating to family allowance or exemption out of decedent’s estate, 88 A.L.R.2d 890.

Amount of allowance from decedent’s estate for widow and family where not fixed by statute, 90 A.L.R.2d 687.

Testamentary gift as affecting widow’s right to fixed stautory allowance or allowance for support, 97 A.L.R.2d 1319.

Previous judgment or agreement for their support, statutory family allowance to minor children as affected by, 6 A.L.R.3d 1387.

Waiver of right to widow’s allowance by post-nuptial agreement, 9 A.L.R.3d 1315, 1319.

Illegitimate child, eligibility to receive family allowance out of estate of his deceased father, 12 A.L.R.3d 1140.

30.1-07-02. (2-404) Family allowance.

In addition to the right to homestead allowance and exempt property, the decedent’s surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child’s guardian or other person having the child’s care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except the homestead allowance.
The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share. The death of any person entitled to family allowance terminates the right to allowances not yet paid.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 19; 1995, ch. 322, § 27.

Editorial Board Comment.

The allowance provided by this section does not qualify for the marital deduction under the federal estate tax because the interest is a non-deductible terminable interest. A broad code must be drafted to provide the best possible protection for the family in all cases, even though this may not provide desired tax advantages for certain larger estates. In the estates falling in the federal estate tax bracket where careful planning may be expected, it is important to the operation of formula clauses that the family allowance be clearly deductible or clearly non-deductible. With the section clearly creating a non-deductible interest, estate planners can create a plan that will operate with certainty. Finally, in order to facilitate administration of this allowance without Court supervision it is necessary to provide a fairly simple and definite framework.

In determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses until the estate can be administered and assets distributed. While the death of the principal income producer may necessitate some change in the standard of living, there must also be a period of adjustment. If the surviving spouse has a substantial income, this may be taken into account. Whether life insurance proceeds payable in a lump sum or periodic installments were intended by the decedent to be used for the period of adjustment or to be conserved as capital may be considered. A living trust may provide the needed income without resorting to the probate estate.

Obviously, need is relative to the circumstances, and what is reasonable must be decided on the basis of the facts of each individual case. Note, however, that under the next section the personal representative may not determine an allowance of more that $1500 per month for one year; a Court Order would be necessary if a greater allowance is reasonably necessary.

Cross-References.

Wages paid by employer to surviving spouse, see N.D.C.C. § 34-01-12.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

DECISIONS UNDER PRIOR LAW

Analysis

Court Discretion.
Validity of Decree.

Court Discretion.

The county court, in its discretion, could make, by its order, an additional allowance for the maintenance of the family, though such order allowed a claim against the estate after the time for filing claims had expired. Tyvand v. McDonnell, 37 N.D. 251, 164 N.W. 1, 1917 N.D. LEXIS 104 (N.D. 1917).

Validity of Decree.

One who passively permitted the entry of the final decree of distribution without claiming the exemption, or without seeking to set aside the decree or appeal therefrom, could not thereafter question the validity of the decree on a ground which could have been presented on appeal. Fischer v. Dolwig, 39 N.D. 161, 166 N.W. 793, 1918 N.D. LEXIS 7 (N.D. 1918).

30.1-07-03. (2-405) Source, determination, and documentation.

If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, guardians of minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make those selections if the surviving spouse, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time, or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative may determine the family allowance in a lump sum not exceeding twenty-seven thousand dollars or periodic installments not exceeding two thousand two hundred fifty dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined.
If the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add any unexpended portions payable under the homestead allowance, exempt property, and family allowance to the trust established under subsection 2 of section 30.1-05-06.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 20; 1995, ch. 322, §§ 7, 27; 2009, ch. 283, § 17.

Effective Date.

The 2009 amendment of this section by section 17 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Scope and Purpose of 1990 Revision. As originally adopted in 1969, the maximum family allowance the personal representative was authorized to determine without court order was a lump sum of $6,000 or periodic installments of $500 per month for one year. To adjust for inflation, the amounts were increased in 1990 to $18,000 and $1,500 respectively and in 2008 to $22,500 and $2,250. The dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109 [not adopted by North Dakota].

A new subsection (b) [subsection (2)] was added to provide for the case where the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person. In that case, the personal representative is authorized to add any unexpended portions under the homestead allowance, exempt property, and family allowance to the custodial trust established by Section 2-212(b) [N.D.C.C. § 30.1-05-06(2)].

If Domiciliary Assets Insufficient. Note that a domiciliary personal representative can collect against out of state assets if domiciliary assets are insufficient.

Cross References. See Sections 3-902 [N.D.C.C. § 30.1-20-02], 3-906 [N.D.C.C. § 30.1-20-06], and 3-907 [N.D.C.C. § 30.1-20-07].

DECISIONS UNDER PRIOR LAW

Analysis

County Court Jurisdiction.
Setting Aside Homestead.

County Court Jurisdiction.

The county court had jurisdiction on proper petition to hear objections to inventory and appraisement and to issue its order allowing the same. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Setting Aside Homestead.

A proceeding to have a homestead set aside was properly brought under section 30-16-05 and former section 30-16-07, and not under section 47-18-06. Farmers' State Bank v. Bartley, 53 N.D. 376, 206 N.W. 414, 1925 N.D. LEXIS 97 (N.D. 1925).

CHAPTER 30.1-08 Wills

General Editorial Board Comment.

Part 5 of Article II is retitled [as Wills, Will Contracts, and Custody and Deposit of Wills] to reflect the fact that it now includes the provisions on will contracts (pre-1990 section 2-701) and on custody and deposit of wills (pre-1990 sections 2-901 and 2-902).

Part 5 deals with capacity and formalities for execution and revocation of wills. The basic intent of the pre-1990 sections was to validate wills whenever possible. To that end, the minimum age for making wills was lowered to eighteen, formalities for a written and attested will were reduced, holographic wills written and signed by the testator were authorized, choice of law as to validity of execution was broadened, and revocation by operation of law was limited to divorce or annulment. In addition, the statute also provided for an optional method of execution with acknowledgment before a public officer (the self-proved will).

These measures have been retained, and the purpose of validating wills whenever possible has been strengthened by the addition of a new section, section 2-503 [not adopted by North Dakota], which allows a will to be upheld despite a harmless error in it execution.

30.1-08-01. (2-501) Who may make a will.

Any adult who is of sound mind may make a will.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

This section states a uniform minimum age of eighteen for capacity to execute a will. “Minor” is defined in section 30.1-01-06, and may involve a different age than that prescribed here.

Notes to Decisions

Insane Delusions.
Testamentary Capacity.
Undue Influence.

Insane Delusions.

To defeat a will on the ground that the testator lacked soundness of mind due to an insane delusion, it must be established that the testator was possessed of a delusion that had no basis in fact or probability and was wholly the product of the imagination, that the will was the product of that delusion, and that the testator devised his property in a way, except for that delusion, he would not have done. In re Estate of Koch, 259 N.W.2d 655, 1977 N.D. LEXIS 200 (N.D. 1977).

Testamentary Capacity.

—Alcohol Consumption.

Frequent drinking is not proof of a lack of testamentary capacity absent evidence of alcohol consumption at the time of the signing. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

—Inquiry.

The critical inquiry in determining testamentary capacity is directed to the condition of mind of the testator at the very time he signed the will. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

—Presumption.

Testamentary capacity is presumed, and the burden of proving the lack thereof is upon the contestant to the will. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

—Standard of Proof.

Like undue influence, a will contest must prove testamentary incapacity by a preponderance of the evidence. Berquist v. Keller (In re Estate of Wagner), 551 N.W.2d 292, 1996 N.D. LEXIS 166 (N.D. 1996).

Undue Influence.

Elements necessary to invalidate a will on the basis of undue influence are that the testator was subject to such influence, the opportunity to exercise it existed, there was a disposition to exercise it, and that the result appears to be the effect of such influence; to be undue, the influence must operate at the time the will is made and must dominate and control the making of the will so as to make the will express the purpose and intent of the person exercising the influence and not the purpose and intent of the testator. Okken v. Okken Estate, 348 N.W.2d 447, 1984 N.D. LEXIS 297 (N.D. 1984).

DECISIONS UNDER PRIOR LAW

Eighteen Years of Age.

There was no statutory requirement for capacity to make a will other than that testator must have been a person eighteen years of age or older. Stormon v. Weiss, 65 N.W.2d 475, 1954 N.D. LEXIS 94 (N.D. 1954).

A person who had reached the age of eighteen years could make a will disposing of all or any part of his estate. Stormon v. Weiss, 65 N.W.2d 475, 1954 N.D. LEXIS 94 (N.D. 1954).

Collateral References.

Wills 21 et seq.

79 Am. Jur. 2d, Wills, § 47 et seq.

94 C.J.S. Wills, § 3 et seq.

Admissibility, on issue of testamentary capacity, of previously executed wills, 89 A.L.R.2d 177.

Guardianship of adult as affecting testamentary capacity, 89 A.L.R.2d 1120.

Intoxicating liquor or drugs, testamentary capacity as affected by use of, 9 A.L.R.3d 15.

Laying foundation: necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix, 17 A.L.R.3d 503.

Ignorance: testator’s illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Partial invalidity of will: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.

Alzheimer’s disease as affecting testamentary capacity, 47 A.L.R.5th 523.

30.1-08-02. (2-502) Execution — Witnessed wills — Holographic wills.

Except as provided in subsection 2 and in sections 30.1-08-06 and 30.1-08-13, a will must be:
1. In writing.
2. Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
3. Either signed:
  1. By at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in subdivision b or the testator’s acknowledgment of that signature or acknowledgment of the will; or
  2. Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
A will that does not comply with subsection 1 is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 21; 1995, ch. 322, § 27; 2009, ch. 283, § 18.

Effective Date.

The 2009 amendment of this section by section 18 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

Subsection (a) [Subsection (1)]: Witnessed or Notarized Wills. Three formalities for execution of a witnessed or notarized will are imposed. Subsection (a)(1) [Subsection (1)(a)] requires the will to be in writing. Any reasonably permanent record is sufficient. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. i (1999).

Under subsection (a)(2) [Subsection (1)(b)], the testator must sign the will or some other individual must sign the testator’s name in the testator’s presence and by the testator’s direction. If the latter procedure is followed, and someone else signs the testator’s name, the so-called “conscious presence” test is codified, under which a signing is sufficient if it was done in the testator’s conscious presence, i.e., within the range of the testator’s senses such as hearing; the signing need not have occurred within the testator’s line of sight. For application of the “conscious-presence” test, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. n (1999); Cunningham v. Cunningham, 83 N.W. 58 (Minn. 1900) (conscious-presence requirement held satisfied where “the signing was within the sound of the testator’s voice; he knew what was being done ...”); Healy v. Bartless, 59 A. 617 (N.H. 1904) (individuals are in the decedent’s conscious presence “whenever they are so near at hand that he is conscious of where they are and of what they are doing, through any of his senses, and where he can readily see them if he is so disposed.”); Demaris’ Estate, 110 P.2d 571 (Or. 1941) (“[W]e do not believe that sight is the only test of presence. We are convinced that any of the senses that a testator possesses, which enable him to know whether another is near at hand and what he is doing, may be employed by him in determining whether [an individual is] in his [conscious] presence ...”).

Signing may be by mark, nickname, or initials, subject to the general rules relating to that which constitutes a “signature.” See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. j (1999). There is no requirement that the testator “publish” the document as his or her will, or that he or she request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other. The testator may sign the will outside the presence of the witnesses, if he or she later acknowledges to the witnesses that the signature is his or hers (or that his or her name was signed by another) or that the document is his or her will. An acknowledgment need not be expressly stated, but can be inferred from the testator’s conduct. Norton v. Georgia Railroad Bank & Tr. Co., 285 S.E.2d 910 (Ga. 1982).

There is no requirement that the testator’s signature be at the end of the will; thus, if the testator writes his or her name in the body of the will and intends it to be his or her signature, the statute is satisfied. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmts. j & k (1999).

Subsection (a)(3) [Subsection (1)(c)] requires that the will either be (A) signed by at least two individuals, each of whom witnessed at least one of the following: (i) the signing of the will; (ii) the testator’s acknowledgment of the signature; or (iii) the testator’s acknowledgment of the will; or (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. Subparagraph (B) [Subparagraph (1)(c)(2)] was added in 2008 in order to recognize the validity of notarized wills.

Under subsection (a)(3)(A) [subsection (1)(c)(1)], the witnesses must sign as witnesses (see, e.g., Mossler v. Johnson, 565 S.W.2d 952 (Tex. Civ.App. 1978)), and must sign within a reasonable time after having witnessed the testator’s act of signing or acknowledgment. There is, however, no requirement that the witnesses sign before the testator’s death. In a particular case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s death.

Under subsection (a)(3)(B) [subsection (1)(c)(2)], a will, whether or not it is properly witnessed under subsection (a)(3)(A) [subsection (1)(c)(1)], can be acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. Note that a signature guarantee is not an acknowledgment before a notary public or other person authorized by law to take acknowledgments. The signature guarantee program, which is regulated by federal law, is designed to facilitate transactions relating to securities. See 17 C.F.R. § 240.17Ad-15.

Allowing notarized wills as an optional method of execution addresses cases that have begun to emerge in which the supervising attorney, with the client and all witnesses present, circulates one or more estate-planning documents for signature, and fails to notice that the client or one of the witnesses has unintentionally neglected to sign one of the documents. See, e.g., Dalk v. Allen, 774 So.2d 787 (Fla. Dist. Ct. App. 2000); Sisson v. Park Street Baptist Church, 24 E.T.R.2d 18 (Ont. Gen. Div. 1998). This often, but not always, arises when the attorney prepares multiple estate-planning documents — a will, a durable power of attorney, a health-care power of attorney, and perhaps a revocable trust. It is common practice, and sometimes required by state law, that the documents other than the will be notarized. It would reduce confusion and chance for error if all of these documents could be executed with the same formality.

In addition, lay people (and, sad to say, some lawyers) think that a will is valid if notarized, which is not true under non-UPC law. See, e.g., Estate of Saueressig, 136 P.3d 201 (Cal. 2006). In Estate of Hall, 51 P.3d 1134 (Mont. 2002), a notarized but otherwise unwitnessed will was upheld, but not under the pre-2008 version of Section 2-502 [N.D.C.C. § 30.1-08-02], which did not authorize notarized wills. The will was upheld under the harmless-error rule of Section 2-503 [not adopted by North Dakota]. There are also cases in which a testator went to his or her bank to get the will executed, and the bank’s notary notarized the document, mistakenly thinking that notarization made the will valid. Cf., e.g., Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1985). Under non-UPC law, the will is usually held invalid in such cases, despite the lack of evidence raising any doubt that the will truly represented the decedent’s wishes.

Other uniform acts affecting property or person do not require either attesting witnesses or notarization. See, e.g., Uniform Trust Code § 402(a)(2); Power of Attorney Act § 105; Uniform Health-Care Decisions Act § 2(f).

A will that does not meet the requirements of subsection (a) may be valid under subsection (b) as a holograph or under the harmless-error rule of Section 2-503 [not adopted by North Dakota].

Subsection (b): Holographic Wills [Subsection (2)]. This subsection authorizes holographic wills. On holographic wills, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 (1999). Subsection (b) enables a testator to write his or her own will in handwriting. There need be no witnesses. The only requirement is that the signature and the material portions of the document be in the testator’s handwriting.

By requiring only the “material portions of the document” to be in the testator’s handwriting (rather than requiring, as some existing statutes do, that the will be “entirely” in the decedent’s handwriting), a holograph may be valid even though immaterial parts such as date or introductory wording are printed, typed, or stamped.

A valid holograph can also be executed on a printed will form if the material portions of the document are handwritten. The fact, for example, that the will form contains printed language such as “I give, devise, and bequeath to _______” does not disqualify the document as a holographic will, as long as the testator fills out the remaining portion of the dispositive provision in his or her own hand.

Subsection (c): Extrinsic Evidence [Subsection (3)]. Under subsection (c) [subsection (3)], testamentary intent can be shown by extrinsic evidence, including for holographic wills the printed, typed, or stamped portions of the form or document. Handwritten alterations, if signed, of a validly executed nonhandwritten will can operate as a holographic codicil to the will. If necessary, the handwritten codicil can derive meaning, and hence validity as a holographic codicil, from nonhandwritten portions of the document. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter’s Note No. 4 to the Restatement as a decision that “reached a manifestly unjust result”.

2008 Revisions. In 2008, this section was amended by adding subsection (a)(3)(B) [subsection (1)(c)(2)]. Subsection (a)(3)(B) and its rationale are discussed in Waggoner, The UPC Authorizes Notarized Wills, 34 ACTEC J. 58 (2008).

Notes to Decisions

Application.
Attestation Clause.
- —Presumption.
Evidence.
Publication.
Signed by Two Individuals.

Application.

This section is not applicable to an instrument attempting to be established as a will where the execution and death of the maker of the instrument occur prior to the effective date of this section. Kuhn v. Kuhn, 281 N.W.2d 230, 1979 N.D. LEXIS 270 (N.D. 1979).

It was no error to probate a decedent’s will because the decedent signed the will in the presence of two witnesses, who signed the will in the decedent’s presence, and all three signatures were notarized. Nordahl v. Jensen (In re Estate of Blikre), 2019 ND 257, 934 N.W.2d 867, 2019 N.D. LEXIS 267 (N.D. 2019).

It was no error to deny probate of a decedent’s alleged holographic will because the decedent’s handwritten documents were not such a will, as the documents (1) lacked testamentary intent, (2) did not specify whether items were to be distributed between sisters and nieces, (3) did not explicitly devise anything to anyone, and (4) were not signed by the decedent. Nordahl v. Jensen (In re Estate of Blikre), 2019 ND 257, 934 N.W.2d 867, 2019 N.D. LEXIS 267 (N.D. 2019).

Attestation Clause.

—Presumption.

Recitals in an attestation clause of a will are presumed to be true and can be used to establish due execution, unless the presumption of truth is overcome by clear and convincing evidence. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991) (decided under former section 56-03-02).

The presumption of due execution created by the attestation clause of the will offered for probate must be overcome by clear and convincing evidence for individual challenging the will to prevail. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991) (decided under former section 56-03-02).

Evidence.

District court did not err in determining appellant will proponent presented evidence strong enough to establish a prima facie case of due execution of decedent’s will in accordance with the requirements of N.D.C.C. § 30.1-08-02, because the court relied upon the notes of the deceased attorney who drafted the will, the deposition testimony of the attorney’s secretary, and the testimony of a witness who saw the signed will. In re Estate of Clemetson v. Evanson, 2012 ND 28, 812 N.W.2d 388, 2012 N.D. LEXIS 25 (N.D. 2012).

Publication.

Publication of will is not required to make the will valid. In re Estate of Polda, 349 N.W.2d 11, 1984 N.D. LEXIS 287 (N.D. 1984).

Signed by Two Individuals.

Codicil was invalid even though two persons were present at the signing of the codicil where the second witness did not sign the codicil as required by law. Hoffart v. Voeller (In re Estate of Voeller), 534 N.W.2d 24, 1995 N.D. LEXIS 110 (N.D. 1995).

DECISIONS UNDER PRIOR LAW

Burden of Proof.

Burden of proof was on one who offered a will for probate to establish execution of will in manner prescribed by statute. Stormon v. Weiss, 65 N.W.2d 475, 1954 N.D. LEXIS 94 (N.D. 1954).

Compliance with Statutory Requirements.

Testamentary disposition of property of decedent was subject absolutely to control of governing statute, and failure to comply with statutory mandate concerning execution of a will was fatal to its validity. McKee v. Buck, 72 N.D. 86, 4 N.W.2d 652, 1942 N.D. LEXIS 115 (N.D. 1942); Knudsen v. Lyons, 79 N.D. 595, 58 N.W.2d 845 (1953).

Written instrument which made a testamentary disposition of real property that was not entirely written, dated, and signed by hand of purported testator had to be executed and attested in manner prescribed by former section. Johnson v. Weldy, 79 N.D. 80, 54 N.W.2d 829, 1952 N.D. LEXIS 100 (N.D. 1952).

A testator had to comply with all the formalities required by statute in the execution and attesting of a will or the will was not valid. In re Baur's Estate, 79 N.D. 113, 54 N.W.2d 891, 1952 N.D. LEXIS 103 (N.D. 1952).

No will was valid unless executed according to the provisions of the laws of North Dakota or according to the law of the place in which it was made, or in which the testator at the time was domiciled. Knudsen v. Lyons, 79 N.D. 595, 58 N.W.2d 845 (1953).

Date.

Instrument sought to be probated as a holographic will had to be dated by testator himself. Montague v. Street, 59 N.D. 618, 231 N.W. 728, 1930 N.D. LEXIS 181 (N.D. 1930).

A holographic will was not dated as required by former statute, unless it showed the day, month, and year when executed. Montague v. Street, 59 N.D. 618, 231 N.W. 728, 1930 N.D. LEXIS 181 (N.D. 1930).

Defective Petition to Probate.

A petition to probate a will was fatally defective where it failed to show that document presented had been executed and subscribed by testator himself or some person in his presence and by his direction. Knudsen v. Lyons, 79 N.D. 595, 58 N.W.2d 845 (1953).

Jury Question.

Whether or not will was witnessed in the presence of testatrix was jury question. Ostlund v. Ecklund, 45 N.D. 76, 176 N.W. 350, 1920 N.D. LEXIS 104 (N.D. 1920).

Mark As Signature.

A mark made by one intending by making it to execute a will, witnessed as provided in former statute, was sufficient to comply with requirements of statute. McKee v. Buck, 72 N.D. 86, 4 N.W.2d 652, 1942 N.D. LEXIS 115 (N.D. 1942); Whelan v. Burris, 72 N.W.2d 884, 1955 N.D. LEXIS 147 (N.D. 1955).

Place of Residence.

Former law requiring a witness to write his place of residence with his name was directory, and failure of witness to write his place of residence did not invalidate a will that had been otherwise validly executed and attested. Hutchinson v. Charles, 75 N.W.2d 313 (1956).

The validity of the execution of a will was not dependent upon the former requirement that each witness write with his name his place of residence when the will had already been otherwise validly executed and attested. Hutchinson v. Charles, 75 N.W.2d 313 (1956).

Proper Execution.

Where a will was subscribed in presence of attesting witnesses or acknowledged by testator to them to have been made by him or by his authority, testator at time declaring to attesting witnesses that instrument was his will and witnesses signing in his presence and at his request, it was properly executed under former section. Ouren v. Friswold, 55 N.D. 664, 215 N.W. 160, 1927 N.D. LEXIS 151 (N.D. 1927).

Subscribing Testator’s Name.

Person subscribing testator’s name to a will, who also signed as an attesting witness, was not required to state on instrument that he wrote testator’s name, since such fact could be shown on proof of the signature. In re Starke's Estate, 67 N.D. 178, 271 N.W. 131, 1937 N.D. LEXIS 72 (N.D. 1937).

Where name of testator was subscribed to will by another person as prescribed by former statute, signature to the will was sufficient. In re Starke's Estate, 67 N.D. 178, 271 N.W. 131, 1937 N.D. LEXIS 72 (N.D. 1937).

Where testator subscribed will in the presence of one attesting witness and acknowledged to other attesting witness that he signed will, attestation was sufficient. Collins v. Stroup, 71 N.D. 679, 3 N.W.2d 742, 1942 N.D. LEXIS 103 (N.D. 1942).

An attesting witness need not have been present when testator subscribed his name to a will. Collins v. Stroup, 71 N.D. 679, 3 N.W.2d 742, 1942 N.D. LEXIS 103 (N.D. 1942).

Collateral References.

Wills 111, 113-123, 130-135.

79 Am. Jur. 2d, Wills, §§ 179 et seq.

94 C.J.S. Wills, §§ 169-177, 182-197, 200-207.

Place of signature of holographic wills, 19 A.L.R.2d 926.

Codicil as validating will or codicil which was invalid or inoperative at time of its purported execution due to omission of signature, 21 A.L.R.2d 821, 829.

Validity of will written on disconnected sheets, 38 A.L.R.2d 477.

Signature on informal testamentary letter, 40 A.L.R.2d 736.

Presumption or inference of due execution of will, weight and effect of, 40 A.L.R.2d 1223.

“Attestation” or “witnessing” of will, required by statute, as including witnesses’ subscription, 45 A.L.R.2d 1365.

Sufficiency of publication of will, 60 A.L.R.2d 124.

Observation: effect of failure of attesting witness to observe testator’s capacity, 69 A.L.R.2d 662.

Fingerprints as signature, 72 A.L.R.2d 1267, 1267.

Presence of the testator in the witnessing of his will, what constitutes, 75 A.L.R.2d 318.

Signature to holographic will, sufficiency as to form of, 75 A.L.R.2d 895.

Validity of will as affected by fact that witness signed before testator, 91 A.L.R.2d 737.

Assistance: validity of will signed by testator with the assistance of another, 98 A.L.R.2d 824.

Mark, stamp, or symbol, or partial or abbreviated signature, validity of wills signed by, 98 A.L.R.2d 841.

Sufficiency of testator’s acknowledgment of signature from his conduct and the surrounding circumstances, 7 A.L.R.3d 317.

Place of signature of attesting witnesses, 17 A.L.R.3d 705.

Date: use of figures wholly or in part to express date of holographic will as reflecting its sufficiency, 22 A.L.R.3d 866.

Intention to make more formal will, further disposition of property, or the like, effect upon testamentary nature of document of expression therein of, 46 A.L.R.3d 938.

Revocation of witnessed will by holographic will or codicil where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Requirement that holographic will, or its material provisions, be entirely in testator’s handwriting as affected by appearance of some printed or written matter not in testator’s handwriting, 37 A.L.R.4th 528.

Electronic tape recording as will, 42 A.L.R.4th 176.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.

30.1-08-03. Holographic will. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-08-04. (2-504) Self-proved will.

A will that is executed with attesting witnesses may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer’s certificate, under official seal, attached or annexed to the will in substantially the following form:
A will that is executed with attesting witnesses may at any time after its execution be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form:
A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will’s due execution.

STATE OF COUNTY OF I, , the testator, sign my name to this instrument this day of , , and being first sworn, declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence. Testator We, , , the witnesses, sign our names to this instrument, and being first sworn, declare to the undersigned authority that the testator signs and executes this instrument as the testator’s will and that the testator signs it willingly or willingly directs another to sign for the testator, and that each of us, in the presence and hearing of the testator, signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence. Witness Witness Subscribed, sworn to, and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of . (Signed) (SEAL) (Official capacity of officer)

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STATE OF COUNTY OF We, , , and , the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator’s will and that the testator had signed willingly or willingly directed another to sign for the testator, and that the testator executed it as the testator’s free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time 18 years of age or older, of sound mind, and under no constraint or undue influence. Testator Witness Witness Subscribed, sworn to, and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of , . (Signed) (SEAL) (Official capacity of officer)

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Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 8; 1993, ch. 334, § 22; 1995, ch. 322, § 27; 2009, ch. 283, § 19.

Effective Date.

The 2009 amendment of this section by section 19 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment.

A self-proved will may be admitted to probate as provided in Sections 3-303 [N.D.C.C. § 30.1-14-03], 3-405 [N.D.C.C. § 30.1-15-05], and 3-406 [N.D.C.C. § 30.1-15-06] without the testimony of any attesting witness, but otherwise it is treated no differently from a will not self proved. Thus, a self-proved will may be contested (except in regard to questions of proper execution), revoked, or amended by a codicil in exactly the same fashion as a will not self proved. The procedural advantage of a self-proved will is limited to formal testacy proceedings because Section 3-303 [N.D.C.C. § 30.1-14-03], which deals with informal probate, dispenses with the necessity of testimony of witnesses even though the instrument is not self proved under this section.

Subsection (c) [Subsection (3)] was added in 1990 to counteract an unfortunate judicial interpretation of similar self-proving will provisions in a few states, under which a signature on the self-proving affidavit was held not to constitute a signature on the will, resulting in invalidity of the will in cases in which the testator or witnesses got confused and only signed on the self-proving affidavit. See Mann, Self-proving Affidavits and Formalism in Wills Adjudication, 63 Wash. U. L.Q. 39 (1985); Estate of Ricketts, 773 P.2d 93 (Wash.Ct.App.1989).

2008 Revision. Section 2-502(a) [N.D.C.C. § 30.1-08-02(1)] was amended in 2008 to add an optional method of execution by having a will notarized rather than witnessed by two attesting witnesses. The amendment to Section 2-502 [N.D.C.C. § 30.1-08-02] necessitated amending this section so that it only applies to a will that is executed with attesting witnesses.

DECISIONS UNDER PRIOR LAW

Attestation.

Term “attest” as applied to wills meant act of witnessing performance of statutory requirements as to valid execution of will and doing things that statute required witness to do as a part of attestation. Hutchinson v. Charles, 75 N.W.2d 313 (1956).

Collateral References.

Wills 123(1).

94 C.J.S. Wills, § 181.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.

30.1-08-05. (2-505) Who may witness.

Any person generally competent to be a witness may act as a witness to a will.
A will or any provision thereof is not invalid because the will is signed by an interested witness.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

This section carries forward the position of the pre-1990 Code. The position adopted simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator’s family on a home-drawn will is not penalized.

This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.

Under Section 3-406 [N.D.C.C. § 30.1-15-06], an interested witness is competent to testify to prove execution of the will.

DECISIONS UNDER PRIOR LAW

Gifts to Witnesses.

Former section voiding gift to witness applied only to subscribing witnesses to a will. Keller v. Reichert, 49 N.D. 74, 189 N.W. 690, 1922 N.D. LEXIS 11 (N.D. 1922).

Collateral References.

Wills 116.

79 Am. Jur. 2d, Wills, §§ 240 et seq.

94 C.J.S. Wills, § 185.

Executor: competency of named executor as subscribing witness to will, 74 A.L.R.2d 283.

Attorney: competency, as witness attesting will, of attorney named therein as executor’s attorney, 30 A.L.R.3d 1361.

30.1-08-06. (2-506) Choice of law as to execution.

A written will is valid if executed in compliance with section 30.1-08-02 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 23; 1995, ch. 322, § 27.

Editorial Board Comment.

This section permits probate of wills in this state under certain conditions even if they are not executed in accordance with the formalities of Section 2-502 [N.D.C.C. § 30.1-08-02] or 2-503 [not adopted by North Dakota]. Such wills must be in writing but otherwise are valid if they meet the requirements for execution of the law of the place where the will is executed (when it is executed in another state or country) or the law of testator’s domicile, abode or nationality at either the time of execution or at the time of death. Thus, if testator is domiciled in state 1 and executes a typed will merely by signing it without witnesses in state 2 while on vacation there, the Court of this State would recognize the will as valid if the law of either state 1 or state 2 permits execution by signature alone. Or, if a national of Mexico executes a written will in this state which does not meet the requirements of Section 2-502 [N.D.C.C.§ 30.1-08-02] but meets the requirements of Mexican law, the will would be recognized as validly executed under this section. The purpose of this section is to provide a wide opportunity for validation of expectations of testators.

Notes to Decisions

Application of Uniform Probate Code.
What Law Controls.

Application of Uniform Probate Code.

Before the Uniform Probate Code provisions apply to a will executed before the effective date of such code, the will must have been validly executed; such validity is determined by the law that existed at the time of the will’s execution. In re Estate of Thomas, 290 N.W.2d 223, 1980 N.D. LEXIS 196 (N.D. 1980).

What Law Controls.

The law in effect at the time of execution is controlling in regard to the formal validity of a will. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

Proof of Execution.

Proof of due execution was fulfilled under N.D.C.C. § 56-03-02, since repealed, by the affidavit establishing the signatures of two of the attesting witnesses which, with the attestation clause, raised a presumption of due execution. In re Estate of Papineau, 396 N.W.2d 735, 1986 N.D. LEXIS 442 (N.D. 1986).

Unless overcome by clear and convincing testimony, the recitals in the attestation clause of the will are presumed to be true and establish that the will was duly executed in accordance with the requirements of N.D.C.C. § 56-03-02 as that statute, since repealed, existed at the time the will was executed. In re Estate of Papineau, 396 N.W.2d 735, 1986 N.D. LEXIS 442 (N.D. 1986).

Collateral References.

Wills 70, 108.

16 Am Jur 2d Conflict of Laws § 61 et seq.

95 C.J.S. Wills, §§ 196, 217-221.

30.1-08-07. (2-507) Revocation by writing or by act.

A will or any part thereof is revoked:
1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
2. By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will”, whether or not the burn, tear, or cancellation touched any of the words on the will.
If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 24; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose and Scope of Revisions. Revocation of a will may be by either a subsequent will or an authorized act done to the document. Revocation by subsequent will cannot be effective unless the subsequent will is valid.

Revocation by Inconsistency. As originally promulgated, this section provided no standard by which the Courts were to determine whether in a given case a subsequent will with no revocation clause revokes a prior will, wholly or partly, by inconsistency. Some Courts seem to have been puzzled about the standard to be applied. New subsections (b), (c), and (d) [subsections (2), (3), and (4)] codify the workable and common-sense standards set forth in the Restatement (Second) of Property (Donative Transfers) § 34.2 comment b (1991). Under these subsections, the question whether the subsequent will was intended to replace rather than supplement the previous will depends upon whether the second will makes a complete disposition of the testator’s estate. If the second will does make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to replace the previous will. If the second will does not make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to supplement rather than replace the previous will. The rationale is that, when the second will does not make a complete disposition of the testator’s estate, the second will is more in the nature of a codicil to the first will. This standard has been applied in the cases without the benefit of a statutory provision to this effect. E.g., Gilbert v. Gilbert, 652 S.W.2d 663 (Ky. Ct. App. 1983).

Example. Five years before her death, G executed a will (Will # 1), devising her antique desk to A; $20,000 to B; and the residue of her estate to C. Two years later, A died, and G executed another will (Will # 2), devising her antique desk to A’s spouse, X; $10,000 to B; and the residue of her estate to C. Will # 2 neither expressly revoked Will # 1 nor made any other reference to it. G’s net probate estate consisted of her antique desk (worth $10,000) and other property (worth $90,000). X, B, and C survived G by 120 hours.

Solution. Will # 2 was presumptively intended by G to replace Will # 1 because Will # 2 made a complete disposition of G’s estate. Unless this presumption is rebutted by clear and convincing evidence, Will # 1 is wholly revoked; only Will # 2 is operative on G’s death.

If however, Will #2 had not contained a residuary clause, and hence had not made a complete disposition of G’s estate, “Will #2” is more in the nature of a codicil to Will #1, and solution would be different. Now, Will #2 would presumptively be treated as having been intended to supplement rather than replace Will #1. In the absence of evidence clearly and convincingly rebutting this presumption, Will #1 would be revoked only to the extent Will #2 is consistent with it; both wills would be operative on G’s death, to the extent they are not inconsistent. As to the devise of the antique desk, Will # 2 is inconsistent with Will # 1, and the antique desk would go to X. There being no residuary clause in Will # 2, there is nothing in Will # 2 that is inconsistent with the residuary clause in Will # 1, and so the residue would go to C. The more difficult question relates to the cash devises in the two wills. The question whether they are inconsistent with one another is a question of interpretation in the individual case. Section 2-507 [N.D.C.C. § 30.1-08-07] does not establish a presumption one way or the other on that question. If the Court finds that the cash devises are inconsistent with one another, i.e., if the Court finds that the cash devise in Will # 2 was intended to replace rather than supplement the cash devise in Will # 1, then B takes $10,000. But if the Court finds that the cash devises are not inconsistent with one another, B would take $30,000.

Revocatory Act. In the case of an act of revocation done to the document, subsection (a)(2) [subsection (1)(b)] is revised to provide that a burning, tearing, or canceling is a sufficient revocatory act even though the act does not touch any of the words on the will. This is consistent with cases on burning or tearing (e.g., White v.Casten, 46 N.C. 197 (1853) (burning); Crampton v.Osburn, 356 Mo. 125, 201 S.W.2d 336 (1947) (tearing)), but inconsistent with most, but not all, cases on cancellation (e.g., Yont v. Eads, 317 Mass. 232, 57 N.E.2d 531 (1944); Kronauge v. Stoecklein, 33 Ohio App.2d 229, 293 N.E.2d 320 (1972); Thompson v. Royall, 163 Va. 492, 175 S.E. 748 (1934); contra, Warner v. Warner’s Estate, 37 Vt. 356 (1864)). By substantial authority, it is held that removal of the testator’s signature—by, for example, lining it through, erasing or obliterating it, tearing or cutting it out of the document, or removing the entire signature page—constitutes a sufficient revocatory act to revoke the entire will. Board of Trustees of the University of Alabama v. Calhoun, 514 So.2d 895 (Ala.1987) and cases cited therein.

Subsection (a)(2) [subsection (1)(b)] is also revised to codify the “conscious-presence” test. As revised, subsection (a)(2) provides that, if the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it in the testator’s conscious presence. The act need not be performed in the testator’s line of sight. See the Comment to Section 2-502 [N.D.C.C. § 30.1-08-02] for a discussion of the “conscious-presence” test.

Revocatory Intent. To effect a revocation, a revocatory act must be accompanied by revocatory intent. Determining whether a revocatory act was accompanied by revocatory intent may involve exploration of extrinsic evidence, including the testator’s statement as to intent.

Partial Revocation. This section specifically permits partial revocation.

Dependent Relative Revocation. Each Court is free to apply its own doctrine of dependent relative revocation. See generally Palmer, “Dependent Relative Revocation and Its Relation to Relief for Mistake,” 69 Mich. L. Rev. 989 (1971). Note, however, that dependent relative revocation should less often be necessary under the revised provisions of the Code. Dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent. A precondition to the application of dependent relative revocation is, or should be, good evidence of the testator’s actual intention; without that, the Court has no basis for determining which of several outcomes comes the closest to that actual intention.

When there is good evidence of the testator’s actual intention, however, the revised provisions of the Code would usually facilitate the effectuation of the result the testator actually intended. If, for example, the testator by revocatory act revokes a second will for the purpose of reviving a former will, the evidence necessary to establish the testator’s intent to revive the former will should be sufficient under Section 2-509 [N.D.C.C. § 30.1-08-09] to effect a revival of the former will, making the application of dependent relative revocation as to the second will unnecessary. If, by revocatory act, the testator revokes a will in conjunction with an effort to execute a new will, the evidence necessary to establish the testator’s intention that the new will be valid should, in most cases, be sufficient under Section 2-503 [not adopted by North Dakota] to give effect to the new will, making the application of dependent relative revocation as to the old will unnecessary. If the testator lines out parts of a will or dispositive provision in conjunction with an effort to alter the will’s terms, the evidence necessary to establish the testator’s intention that the altered terms be valid should be sufficient under Section 2-503 [not adopted by North Dakota] to give effect to the will as altered, making dependent relative revocation as to the lined-out parts unnecessary.

Notes to Decisions

Animo Revocandi Presumption.
Destruction of Copy.
Destruction of Original.
Mutilation of Will.

Animo Revocandi Presumption.

District court erred in finding that the testator’s missing will was not presumed to be revoked, because while N.D.C.C. § 30.1-08-07 did not speak to admitting a lost will and neither N.D.C.C. §§ 30.1-14-03 nor 30.1-15-02 provided specific presumptions for admitting a missing will, the drafter’s of the Uniform Probate Code did contemplate the probate of lost wills, and the district court erroneously failed to apply the common law animo revocandi presumption that a missing will was revoked; if a will could not be found upon the death of the testator, the presumption arose that the testator revoked the missing will, and under N.D.R.Ev. 301(a), the party seeking to probate the missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi. York v. Conley (In re Estate of Conley), 2008 ND 148, 753 N.W.2d 384, 2008 N.D. LEXIS 149 (N.D. 2008).

Destruction of Copy.

While the destruction of an executed duplicate will may operate to revoke the original will, the destruction of an unexecuted or conformed copy is ineffectual as an act of revocation regardless of the testator’s intent. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

Destruction of Original.

Our statute requires that the original will be destroyed to effectuate revocation and does not provide for revocation by destruction of a copy. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

Mutilation of Will.

Under subsection (2) (now (1)(b)) of this section, revocation can only be accomplished when a physical mutilation of the will is coupled with the intent and for the purpose of revocation. Thus, regardless of the testator’s intent, a revocation is not effectuated unless there has been a mutilation of the will. In re Estate of Stanton, 472 N.W.2d 741, 1991 N.D. LEXIS 115 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

New Disposition.

There was no “new disposition” within meaning of former section where name of one of two joint devisees had been obliterated and remaining devisee was named executrix, no new provisions being added. In re Estate of Bogner, 184 N.W.2d 718, 1971 N.D. LEXIS 160 (N.D. 1971).

Obliteration.

Obliteration, as used in former section, was an erasure or a blotting out of words with intent and for purpose of revoking those portions of will so obliterated; drawing lines through name of devisee and alternate executor constituted obliteration. In re Estate of Bogner, 184 N.W.2d 718, 1971 N.D. LEXIS 160 (N.D. 1971).

Obliteration of will was presumed to have been effected by testator where will had been in his custody, and was found after his death among his personal effects, and fell within any of the statutorily prescribed modes of revocation. In re Estate of Bogner, 184 N.W.2d 718, 1971 N.D. LEXIS 160 (N.D. 1971).

Testator’s partial revocation was valid where he evidenced intention to exclude daughter’s ex-husband by obliterating latter’s name wherever it appeared as devisee or executor, daughter already having been named joint devisee and executrix. In re Estate of Bogner, 184 N.W.2d 718, 1971 N.D. LEXIS 160 (N.D. 1971).

Proof.

Although proof of intent to revoke portion of will could be assumed from fact of obliteration, it was proper to show other facts and circumstances, including declarations of testator indicating an intent to revoke; failure to receive and consider such evidence would have been a dereliction of court’s duty. In re Estate of Bogner, 184 N.W.2d 718, 1971 N.D. LEXIS 160 (N.D. 1971).

Collateral References.

Wills 167 et seq.

79 Am. Jur. 2d, Wills, § 467 et seq.

95 C.J.S. Wills, §§ 386 et seq.

Duplicate copies: destruction or cancellation of one copy of will executed in duplicate as revocation of other copy, 17 A.L.R.2d 805.

Effect of testator’s attempted physical alteration of will after execution, 24 A.L.R.2d 514, 554.

Doctrine of dependent relative revocation in case of attempted physical alteration of will, 24 A.L.R.2d 514, 554.

Revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Oral promise or agreement not to revoke will, validity of, 29 A.L.R.2d 1229.

Informal testamentary letter, revocation of will by, 40 A.L.R.2d 736.

Implied revocation of will by later will, 59 A.L.R.2d 11.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Nontestamentary writing, revocation of will by, 22 A.L.R.3d 1346.

Declarations: admissibility of testator’s declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Holographic will: revocation of witnessed will by holographic will or codicil where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Loss: testator’s failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator — modern cases, 70 A.L.R.4th 323.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

Sufficiency of evidence of nonrevocation of lost will where codicil survives, 84 A.L.R.4th 531.

30.1-08-08. (2-508) Revocation by change of circumstances.

Except as provided in sections 30.1-10-03 and 30.1-10-04, a change of circumstances does not revoke a will or any part of it.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 25; 1995, ch. 322, § 27.

30.1-08-09. (2-509) Revival of revoked will.

If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under subdivision b of subsection 1 of section 30.1-08-07, the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under subdivision b of subsection 1 of section 30.1-08-07, a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 26; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose and Scope of Revisions. Although a will takes effect as a revoking instrument when it is executed, it takes effect as a dispositive instrument at death. Once revoked, therefore, a will is ineffective as a dispositive instrument unless it has been revived. This section covers the standards to be applied in determining whether a will (Will # 1) that was revoked by a subsequent will (Will # 2), either expressly or by inconsistency, has been revived by the revocation of the subsequent will, i.e., whether the revocation of Will # 2 (the revoking will) revives Will # 1 (the will that Will # 2 revoked).

As revised, this section is divided into three subsections. Subsections (a) and (b) [subsections (1) and (2)] cover the effect of revoking Will # 2 (the revoking will) by a revocatory act under Section 2-507(a)(2) [N.D.C.C. § 30.1-08-07(1)(b)]. Under subsection (a) [subsection (1)], if Will # 2 (the revoking will) wholly revoked Will # 1, the revocation of Will # 2 does not revive Will # 1 unless “it is evident from the circumstances of the revocation of [Will # 2] or from the testator’s contemporary or subsequent declarations that the testator intended [Will # 1] to take effect as executed.” This standard places the burden of persuasion on the proponent of Will # 1 to establish that the decedent’s intention was that Will # 1 is to be his or her valid will. Testimony regarding the decedent’s statements at the time he or she revokes Will # 2 or at a later date can be admitted. Indeed, all relevant evidence of intention is to be considered by the Court on this question; the open-ended statutory language is not to be undermined by translating it into discrete subsidiary elements, all of which must be met, as the Court did in Estate of Boysen, 309 N.W.2d 45 (Minn. 1981). See Langbein to Waggoner, “Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code,” 55 Alb. L. Rev. 871, 885-87 (1992).

The pre-1990 version of this section did not distinguish between complete and partial revocation. Regardless of whether Will # 2 wholly or partly revoked Will # 1, the pre-1990 version presumed against revival of Will # 1 when Will # 2 was revoked by act.

As revised, this section properly treats the two situations as distinguishable. The presumption against revival imposed by subsection (a) [subsection (1)] is justified because where Will # 2 wholly revoked Will # 1, the testator understood or should have understood that Will # 1 had no continuing effect. Consequently, subsection (a) properly presumes that the testator’s act of revoking Will # 2 was not accompanied by an intent to revive Will # 1.

Subsection (b) [subsection (2)] establishes the opposite presumption where Will # 2 (the revoking will) revoked Will # 1 only in part. In this case, the revocation of Will # 2 revives the revoked part or parts of Will # 1 unless “it is evident from the circumstances of the revocation of [Will # 2] or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.” This standard places the burden of persuasion on the party arguing that the revoked part or parts of Will # 1 were not revived. The justification is that where Will # 2 only partly revoked Will # 1, Will # 2 is only a codicil to Will # 1, and the testator knows (or should know) that Will # 1 does have continuing effect. Consequently, subsection (b) [subsection (2)] properly presumes that the testator’s act of revoking Will # 2 (the codicil) was accompanied by an intent to revive or reinstate the revoked parts of Will # 1.

Subsection (c) [subsection (3)] covers the effect on Will # 1 of revoking Will # 2 (the revoking will) by another, later, will (Will # 3). Will # 1 remains revoked except to the extent that Will # 3 shows an intent to have Will # 1 effective.

Collateral References.

Wills 196-202.

79 Am. Jur. 2d, Wills, § 598 et seq.

95 C.J.S. Wills, §§ 429-440.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

30.1-08-10. (2-510) Incorporation by reference.

Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Source:

S.L. 1973, ch. 257, § 1.

Editorial Board Comment.

This section codifies the common-law doctrine of incorporation by reference, except that the sometimes troublesome requirement that the will refer to the document as being in existence when the will was executed has been eliminated.

Collateral References.

Wills 98.

79 Am. Jur. 2d, Wills, §§ 186 et seq.

95 C.J.S. Wills, §§ 209-213.

Extrinsic document not in existence at date of will, incorporation in will of, 3 A.L.R.2d 682.

“Pour-over” provisions from will to inter vivos trust, 12 A.L.R.3d 56.

30.1-08-11. (2-511) Testamentary additions to trusts.

A will may validly devise property to the trustee of a trust established or to be established during the testator’s lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or at the testator’s death by the testator’s devise to the trustee, if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, or concurrently with, or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
Unless the testator’s will provides otherwise, property devised to a trust described in subsection 1:
1. Is not held under a testamentary trust of the testator but becomes a part of the trust to which it is devised.
2. Must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise to lapse.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 27; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose and Scope of Revisions. In addition to making a few stylistic changes, several substantive changes in this section are made.

As revised, it has been made clear that the “trust” need not have been established (funded with a trust res) during the decedent’s lifetime, but can be established (funded with a res) by the devise itself. The pre-1990 version probably contemplated this result and reasonably could be so interpreted (because of the phrase “regardless of the existence…of the corpus of the trust”). Indeed, a few cases have expressly stated that statutory language like the pre-1990 version of this section authorizes pour-over devises to unfunded trusts. E.g., Clymer v. Mayo, 473 N.E.2d 1084 (Mass. 1985); Trosch v. Maryland Nat’l Bank, 32 Md. App. 249, 359 A.2d 564 (1976). The authority of these pronouncements is problematic, however, because the trusts in these cases were so-called “unfunded” life-insurance trusts. An unfunded life-insurance trust is not a trust without a trust res; the trust res in an unfunded life-insurance trust is the contract right to the proceeds of the life-insurance policy conferred on the trustee by virtue of naming the trustee the beneficiary of the policy. See Gordon v. Portland Trust Bank, 201 Or. 648, 271 P.2d 653 (1954) (“[T]he [trustee as the] beneficiary [of the policy] is the owner of a promise to pay the proceeds at the death of the insured…”); Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, 191 N.E. 250 (1934). Thus, the term “unfunded life-insurance trust” does not refer to an unfunded trust, but to a funded trust that has not received additional funding. For further indication of the problematic nature of the idea that the pre-1990 version of this section permits pour-over devises to unfunded trusts, see Estate of Daniels, 665 P.2d 594 (Colo. 1983) (pour-over devise failed; before signing the trust instrument, the decedent was advised by counsel that the “mere signing of the trust agreement would not activate it and that, before the trust could come into being, [the decedent] would have to fund it;” decedent then signed the trust agreement and returned it to counsel “to wait for further directions on it;” no further action was taken by the decedent prior to death; the decedent’s will devised the residue of her estate to the trustee of the trust, but added that the residue should go elsewhere “if the trust created by said agreement is not in effect at my death.”)

Additional revisions of this section are designed to remove obstacles to carrying out the decedent’s intention that were contained in the pre-1990 version. These revisions allow the trust terms to be set forth in a written instrument executed after as well as before or concurrently with the execution of the will; require the devised property to be administered in accordance with the terms of the trust as amended after as well as before the decedent’s death, even though the decedent’s will does not so provide; and allow the decedent’s will to provide that the devise is not to lapse even if the trust is revoked or terminated before the decedent’s death.

Revision of Uniform Testamentary Additions to Trusts Act. The freestanding Uniform Testamentary Additions to Trusts Act (UTATA) was revised in 1991 in accordance with the revisions to UPC § 2-511. States that enact Section 2-511 need not enact the UTATA as revised in 1991 and should repeal the original version of UTATA if previously enacted in the state.

Collateral References.

Wills 669 et seq.

96 C.J.S. Wills, §§ 1004 et seq.

“Pour-over” provisions from will to inter vivos trust, 12 A.L.R.3d 56.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Testamentary Additions to Trusts Act include:

Alaska Stat. § 13.11.200.

Ariz. Rev. Stat. Ann. § 14-2511.

Ark. Stat. Ann. §§ 28-27-101 to 28-27-105.

Cal. Prob. Code §§ 6300 to 6303.

Colo. Rev. Stat. § 15-11-511.

Conn. Gen. Stat. § 45a-260.

Del. Code Ann. tit. 12, § 211.

D.C. Code Ann. § 18-306.

Fla. Stat. § 732.513.

Ga. Code §§ 53-12-70 to 53-12-74.

Guam Civ. Code tit. 15, §§ 701 to 707.

Hawaii Rev. Stat. § 560:2-511.

Idaho Code § 15-2-511.

Ill. 775 ILCS -4.

Ind. Code § 29-1-5-9.

Iowa Code §§ 633.275 to 633.277.

Kan. Stat. Ann. §§ 59-3101 to 59-3105.

Ky. Rev. Stat. § 394.075.

Me. Rev. Stat. Ann. tit. 18-A, § 2-511.

Md. Est. & Trusts Code Ann. §§ 4-411, 4-412.

Mass. Gen. Laws Ann. ch. 203, § 3B.

Mich. Comp. Laws §§ 555.461 to 555.464.

Minn. Stat. § 525.223.

Miss. Code Ann. § 91-5-11.

Mont. Code Ann. § 72-2-531.

Neb. Rev. Stat. § 30-2336.

Nev. Rev. Stat. §§ 163.220 to 163.250.

N.H. Rev. Stat. Ann. §§ 563-A:1 to 563-A:4.

N.J. Rev. Stat. §§ 3B:4-1 to 3B:4-6.

N.M. Stat. Ann. § 45-2-511.

N.Y. Est. Powers & Trusts Law § 3-3.7.

N.C. Gen. Stat. § 31-47.

Ohio Rev. Code Ann. § 2107.63.

Okla. Stat. tit. 84, §§ 301 to 304.

Or. Rev. Stat. § 112.265.

Pa. Stat. Ann. tit. 20, § 2515.

S.C. Code Ann. § 62-2-510.

S.D. Cod. Laws §§ 29-2-18 to 29-2-23.

Tenn. Code Ann. § 32-3-106.

Tex. Probate Code Ann. § 58a.

Utah Code Ann. § 75-2-511.

Vt. Stat. Ann. tit. 14, § 2329.

Wash. Rev. Code § 11.12.250.

W. Va. Code §§ 41-3-8 to 41-3-11.

Wyo. Stat. § 2-6-103.

30.1-08-12. (2-512) Events of independent significance.

A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.

Source:

S.L. 1973, ch. 257, § 1.

30.1-08-13. (2-513) Separate writing identifying devise of certain types of tangible personal property.

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death, it may be prepared before or after the execution of the will, it may be altered by the testator after its preparation, and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 28; 1995, ch. 322, § 27.

Editorial Board Comment.

Purpose and Scope of Revision. As part of the broader policy of effectuating a testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in his or her will to a separate document disposing of tangible personalty other than money. The pre-1990 version precluded the disposition of “evidences of indebtedness, documents of title, and securities, and property used in a trade or business.” These limitations are deleted in the revised version, partly to remove a source of confusion in the pre-1990 version, which arose because evidences of indebtedness, documents of title, and securities are not items of tangible personal property to begin with, and partly to permit the disposition of a broader range of items of tangible personal property.

The language “items of tangible personal property” does not require that the separate document specifically itemize each item of tangible personal property covered. The only requirement is that the document describe the items covered “with reasonable certainty.” Consequently, a document referring to “all my tangible personal property other than money” or to “all my tangible personal property located in my office” or using similar catch-all type of language would normally be sufficient.

The separate document disposing of an item or items of tangible personal property may be prepared after execution of the will, so would not come within Section 2-510 [N.D.C.C. § 30.1-08-10] on incorporation by reference. It may even be altered from time to time. The only requirement is that the document be signed by the testator. The pre-1990 version of this section gave effect to an unsigned document if it was in the testator’s handwriting. The revisions remove the language giving effect to such an unsigned document. The purpose is to prevent a mere handwritten draft from becoming effective without sufficient indication that the testator intended it to be effective. The signature requirement is designed to prevent mere drafts from becoming effective against the testator’s wishes. An unsigned document could still be given effect under Section 2-503 [not adopted by North Dakota], however, if the proponent could carry the burden of proving by clear and convincing evidence that the testator intended the document to be effective.

The typical case covered by this section would be a list of personal effects and the persons whom the decedent desired to take specified items.

Sample Clause. Section 2-513 [N.D.C.C. § 30.1-08-13] might be utilized by a clause in the decedent’s will such as the following: I might leave a written statement or list disposing of items of tangible personal property. If I do and if my written statement or list is found and is identified as such by my Personal Representative no later than 30 days after the probate of this will, then my written statement or list is to be given effect to the extent authorized by law and is to take precedence over any contrary devise or devises of the same item or items of property in this will.

Section 2-513 only authorizes disposition of tangible personal property “not otherwise specifically disposed of by the will.” The sample clause above is consistent with this restriction. By providing that the written statement or list takes precedence over any contrary devise in the will, a contrary devise is made conditional upon the written statement or list not contradicting it; if the written statement or list does contradict a devise in the will, the will does not otherwise specifically dispose of the property.

If, however, the clause in the testator’s will does not provide that the written statement or list is to take precedence over any contrary devise in the will (or contain a provision having similar effect), then the written statement or list is ineffective to the extent it purports to dispose of items of property that were otherwise specifically disposed of by the will.

CHAPTER 30.1-08.1 Ante-mortem Probate of Wills

30.1-08.1-01. Declaratory judgment.

Any person who executes a will disposing of the person’s estate in accordance with this title may institute a proceeding under chapter 32-23 for a judgment declaring the validity of the will as to the signature on the will, the required number of witnesses to the signature and their signatures, and the testamentary capacity and freedom from undue influence of the person executing the will.

Source:

S.L. 1977, ch. 296, § 2.

30.1-08.1-02. Parties — Process.

Any beneficiary named in the will and all the testator’s present intestate successors shall be named parties to the proceeding. For the purposes of this chapter, any beneficiary named in the will and all the testator’s present intestate successors shall be deemed possessed of inchoate property rights.

Service of process upon the parties to the proceeding shall be made in accordance with rule 4 of the North Dakota Rules of Civil Procedure.

Source:

S.L. 1977, ch. 296, § 3.

30.1-08.1-03. Finding of validity — Revocation.

If the court finds under chapter 32-23 that the will has been properly executed and that the plaintiff testator has the requisite testamentary capacity and freedom from undue influence, it shall declare the will valid and order it placed on file with the court. For the purposes of section 30.1-12-02, a finding of validity under this chapter shall constitute an adjudication of probate. The will shall be binding in North Dakota unless and until the plaintiff-testator executes a new will and institutes a new proceeding under this chapter naming the appropriate parties to the new proceeding as well as the parties to any former proceeding brought under this chapter.

Source:

S.L. 1977, ch 296, § 4.

Collateral References.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 A.L.R.4th 117.

30.1-08.1-04. Admissibility of facts — Effect on other actions.

The facts found in a proceeding brought under this chapter shall not be admissible in evidence in any proceeding other than one brought in North Dakota to determine the validity of a will; nor shall the determination in a proceeding under this chapter be binding, upon the parties to such proceeding, in any action not brought to determine the validity of a will.

Source:

S.L. 1977, ch. 296, § 5.

CHAPTER 30.1-08.2 International Wills

30.1-08.2-01. (2-1001) Definitions.

In this chapter:

“Authorized person” and “person authorized to act in connection with international wills” mean a person who by section 30.1-08.2-08, or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by foreign service regulations, is empowered to supervise the execution of international wills.
“International will” means a will executed in conformity with sections 30.1-08.2-02 through 30.1-08.2-05.

Source:

S.L. 1979, ch. 376, § 1.

Editorial Board Comment.

The term “international will” connotes only that a will has been executed in conformity with this act. It does not indicate that the will was planned for implementation in more than one country, or that it relates to an estate that has or may have international implications. Thus, it will be entirely appropriate to use an “international will” whenever a will is desired.

The reference in subsection (2) to persons who derive their authority to act from federal law, including Foreign Service Regulations, anticipates that the United States will become a party to the 1973 Convention, and that Congress, pursuant to the obligation of the Convention, will enact the annexed uniform law and include therein some designation, possibly of a cadre only, of authorized persons. See the discussion under “Roles for Federal and State Law in Relation to International Will”, in the Prefatory Note, supra. If all states enact similar laws and designate all attorneys as authorized persons, the need for testators to resort to those designated by federal law may be minimal. It seems desirable, nonetheless, to associate whoever may be designated by federal law as suitable authorized persons for purposes of implementing state enactments of the uniform act. The resulting “borrowing” of those designated federally should minimize any difficulties that might arise from variances in the details of execution of international wills that may develop in the state and federal enactment process.

In the Explanatory Report of the 1973 Convention prepared by Mr. Jean-Pierre Plantard, Deputy Secretary-General of the International Institute for the Unification of Private Law (UNIDROIT) as published by the Institute in 1974, the following paragraphs that are relevant to this section appear:

“The Uniform Law gives no definition of the term will. The preamble of the Convention also uses the expression ‘last wills’. The material contents of the document are of little importance as the Uniform Law governs only its form. There is, therefore, nothing to prevent this form being used to register last wishes that do not involve the naming of an heir and which in some legal systems are called by a special name, such as ‘Kodizill’ in Austrian Law (ABGB § 553).

“Although it is given the qualification ‘international’, the will dealt with by the Uniform Law can easily be used for a situation without any international element, for example, by a testator disposing in his own country of his assets, all of which are situated in that same country. The adjective ‘international’, therefore, only indicates what was had in mind at the time when this new will was conceived. Moreover, it would have been practically impossible to define a satisfactory sphere of application, had one intended to restrict its use to certain situations with an international element. Such an element could only be assessed by reference to several factors (nationality, residence, domicile of the testator, place where the will was drawn up, place where the assets are situated) and, moreover, these might vary considerably between when the will was drawn up and the beginning of the inheritance proceedings.

“Use of the international will should, therefore, be open to all testators who decide they want to use it. Nothing should prevent it from competing with the traditional forms if it offers advantages of convenience and simplicity over the other forms and guarantees the necessary certainty.”

Comparative Legislation.

For jurisdictions which have enacted the Uniform Probate Code, including the Uniform International Wills Act, see the Comparative Legislation Note appearing under § 30.1-01-01, supra.

Jurisdictions enacting the Uniform International Wills Act, without adopting the Uniform Probate Code, include:

Cal. Prob. Code §§ 6380 to 6390.

Conn. §§ 50a-1 to 50a-9.

Ill. 755 ILCS 10/1 to 755 ILCS 10/10.

Or. Rev. Stat. § 112.232.

30.1-08.2-02. (2-1002) International will — Validity.

A will is valid in form, irrespective of the place where it is made, of the location of the assets and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this chapter.
The invalidity of the will as an international will does not affect its formal validity as a will of another kind.
This chapter does not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Source:

S.L. 1979, ch. 376, § 2.

Editorial Board Comment.

This section combines what appears in Articles 1 and 2 of the Annex into a single section. Except for the reference to later sections, the first sentence is identical to Article 1, section 1 of the Annex, the second sentence is identical to Article 1, section 2, and the third is identical to Article 2.

Mr. Plantard’s commentary that is pertinent to this section is as follows:

“The Uniform Law is intended to be introduced into the legal system of each Contracting State. Article 1, therefore, introduces into the internal law of each Contracting State the new, basic principle according to which the international will is valid irrespective of the country in which it was made, the nationality, domicile or residence of the testator and the place where the assets forming the estate are located.

“The scope of the Uniform Law is thus defined in the first sentence. As was mentioned above, the idea behind it was to establish a new type of will, the form of which would be the same in all countries. The Law obviously does not affect the subsistence of all the other forms of will known under each national law …

“Some of the provisions relating to form laid down by the Uniform Law are considered essential. Violation of these provisions is sanctioned by the invalidity of the will as an international will. These are: that the will must be made in writing, the presence of two witnesses and of the authorized person, signature by the testator and by the persons involved (witnesses and authorized person) and the prohibition of joint wills. The other formalities, such as the position of the signature and date, the delivery and form of the certificate, are laid down for reasons of convenience and uniformity but do not affect the validity of the international will.

“Lastly, even when the international will is declared invalid because one of the essential provisions contained in Articles 2 to 5 has not been observed, it is not necessarily deprived of all effect. Paragraph 2 of Article 1 specifies that it may still be valid as a will of another kind, if it conforms with the requirements of the applicable national law. Thus, for example, a will written, dated and signed by the testator but handed over to an authorized person in the absence of witnesses or without the signature of the witnesses and the authorized person could quite easily be considered a valid holograph will. Similarly, an international will produced in the presence of a person who is not duly authorized might be valid as a will witnessed in accordance with Common law rules.

“However, in these circumstances, one could no longer speak of an international will and the validity of the document would have to be assessed on the basis of the rules of internal law or of private international law.

“A joint will cannot be drawn up in the form of an international will. This is the meaning of Article 2 of the Uniform Law which does not give an opinion as to whether this prohibition on joint wills, which exists in many legal systems, is connected with its form or its substance.

“A will made in this international form by several people together in the same document would, therefore, be invalid as an international will but could possibly be valid as another kind of will, in accordance with Article 1, paragraph 2 of the Uniform Law.

“The terminology used in Article 2 is in harmony with that used in Article 4 of The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.”

30.1-08.2-03. (2-1003) International will — Requirements.

The will must be made in writing. It need not be written by the testator personally. It may be written in any language, by hand or by any other means.
The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is the testator’s will and that the testator knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if the testator has previously signed it, shall acknowledge that signature.
If the testator is unable to sign, the absence of the testator’s signature does not affect the validity of the international will if the testator indicates the reason for the testator’s inability to sign and the authorized person makes note thereof on the will. In that case, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator’s name if the authorized person makes note of this on the will, but it is not required that any person sign the testator’s name for the testator.
The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Source:

S.L. 1979, ch. 376, § 3.

Editorial Board Comment.

The five subsections of this section correspond in content to Articles 3 through 5 of the Annex to the 1973 Convention. Article 1, section 1 makes it clear that compliance with all requirements listed in Articles 3 through 5 is necessary in order to achieve an international will. As re-organized for enactment in the United States, all mandatory requirements have been grouped in this section. Except for subsection (d) [subsection (4)], each of the sentences in the subsections corresponds exactly with a sentence in the Annex. Subsection (d), derived from Article 5, section 2 of the Annex, was re-worded for the sake of clarity.

Mr. Plantard’s comments on the requirements are as follows:

“Paragraph 1 of Article 3 lays down an essential condition for a will’s validity as an international will: it must be made in writing.

“The Uniform Law does not explain what is meant by ‘writing’. This is a word of everyday language which, in the opinion of the Law’s authors, does not call for any definition but which covers any form of expression made by signs on a durable substance.

“Paragraphs 2 and 3 show the very liberal approach of the draft.

“Under paragraph 2, the will does not necessarily have to be written by the testator himself. This provision marks a moving away from the holograph will toward the other types of will: the public will or the mystic will and especially the Common law will. The latter, which is often very long, is only in exceptional cases written in the hand of the testator, who is virtually obliged to use a lawyer, in order to use the technical formulae necessary to give effect to his wishes. This is all the more so as wills frequently involve inter vivos family arrangements, and fiscal considerations play a very important part in this matter.

“This provision also allows for the will of illiterate persons, or persons who, for some other reason, cannot write themselves, for example paralysed or blind persons.

“According to paragraph 3 a will may be written in any language. This provision is in contrast with the rules accepted in various countries as regards public wills. It will be noted that the Uniform Law does not even require the will to be written in a language known by the testator. The latter is, therefore, quite free to choose according to whichever suits him best: it is to be expected that he will usually choose his own language but, if he thinks it is better, he will sometimes also choose the language of the place where the will is drawn up or that of the place where the will is mainly to be carried out. The important point is that he have full knowledge of the contents of his will, as is guaranteed by Articles 4 and 10.

“Lastly, a will may be written by hand or by any other method. This provision is the corollary of paragraph 2. What is mainly had in mind is a typewriter, especially in the case of a will drawn up by a lawyer advising the testator.

“The liberal nature of the principles set out in Article 3 calls for certain guarantees on the other hand. These are provided by the presence of three persons, already referred to in the context of Articles III and V of the Convention, that is to say, the authorised person and the two witnesses. It is evident that these three persons must all be simultaneously present with the testator during the carrying out of the formalities laid down in Articles 4 and 5.

“Paragraph 1 of Article 4 requires, first of all, that the testator declare, in the presence of these persons, that the document produced by him is his will and that he knows the contents thereof. The word ‘declares’ covers any unequivocal expression of intention, by way of words as well as by gestures or signs, as, for example, in the case of a testator who is dumb. This declaration must be made on pain of the international will being invalid. This is justified by the fact that the will produced by the testator might have been materially drawn up by a person other than the testator and even, in theory, in a language which is not his own.

“Paragraph 2 of the article specifies that this declaration is sufficient: the testator does not need to ‘inform’ the witnesses or the authorized person ‘of the contents of the will’. This rule makes the international will differ from the public will and brings it closer to the other types of will: the holograph will and especially the mystic will and the Common law will.

“The testator can, of course, always ask for the will to be read, a precaution which can be particularly useful if the testator is unable to read himself. The paragraph under consideration does not in any way prohibit this; it only aims at ensuring respect for secrecy, if the testator should so wish. The international will can therefore be a secret will without being a closed will.

“The declaration made by the testator under Article 4 is not sufficient: under Article 5, paragraph 1, he must also sign his will. However, the authors of the Uniform Law presumed that, in certain cases, the testator might already have signed the document forming his will before producing it. To require a second signature would be evidence of an exaggerated formalism and a will containing two signatures by the testator would be rather strange. That is why the same paragraph provides that, when he has already signed the will, the testator can merely acknowledge it. This acknowledgement is completely informal and is normally done by a simple declaration in the presence of the authorized person and witnesses.

“The Uniform Law does not explain what is meant by ‘signature’. This is once more a word drawn from everyday language, the meaning of which is usually the same in the various legal systems. The presence of the authorized person, who will necessarily be a practicing lawyer will certainly guarantee that there is a genuine signature correctly affixed.

“Paragraph 2 was designed to give persons incapable of signing the possibility of making an international will. All they have to do is indicate their incapacity and the reason therefore to the authorized person. The authorized person must then note this declaration on the will which will then be valid, even though it has not been signed by the testator. Indication of the reason for incapacity is an additional guarantee as it can be checked. The certificate drawn up by the authorized person in the form prescribed in Article 10 again reproduces this declaration.

“The authors of the Uniform Law were also conscious of the fact that in some legal systems-for example, English law-persons who are incapable of signing can name someone to sign in their place. Although this procedure is completely unknown to other systems in which a signature is exclusively personal, it was accepted that the testator can ask another person to sign in his name, if this is permitted under the law from which the authorized person derives his authority. This amounts to nothing more than giving satisfaction to the practice of certain legal systems, as the authorized person must, in any case, indicate on the will that the testator declared that he could not sign, and give the reason therefore. This indication is sufficient to make the will valid. There will, therefore simply be a signature affixed by a third person instead of that of the testator. Although there is nothing stipulating this in the Uniform Law, one can expect the authorized person to explain the source of this signature on the document, all the more so as the signature of this substitute for the testator must also appear on the other pages of the will, by virtue of Article 6.

“This method over which there were some differences of opinion at the Diplomatic Conference, should not however interfere in any way with the legal systems which do not admit a signature in the name of someone else. Besides, its use is limited to the legal systems which admit it already and it is now implicitly accepted by the others when they recognize the validity of a foreign document drawn up according to this method. However, this situation can be expected to arise but rarely, as an international will made by a person who is incapable of signing it will certainly be a rare event.

“Lastly, Article 5 requires that the witnesses and authorized person also sign the will there and then in the presence of the testator. By using the words ‘attest the will by signing’, when only the word ‘sign’ had been used when referring to the testator, the authors of the Uniform Law intended to make a distinction between the person acknowledging the contents of a document and those who have only to affix their signature in order to certify their participation and presence.

“In conclusion, the international will will normally contain four signatures: that of the testator, that of the authorized person and those of the two witnesses. The signature of the testator might be missing: in this case, the will must contain a note made by the authorized person indicating that the testator was incapable of signing, adding his reason. All these signatures and notes must be made on pain of invalidity. Finally, if the signature of the testator is missing, the will could contain the signature of a person designated by the testator to sign in his name, in addition to the above-mentioned note made by the authorized person.”

30.1-08.2-04. (2-1004) International wills — Other points of form.

The signatures must be placed at the end of the will. If the will consists of several sheets, each sheet must be signed by the testator or, if the testator is unable to sign, by the person signing on the testator’s behalf or, if there is no such person, by the authorized person. In addition, each sheet must be numbered.
The date of the will must be the date of its signature by the authorized person. That date must be noted at the end of the will by the authorized person.
The authorized person shall ask whether the testator wishes to make a declaration concerning the safekeeping of the testator’s will. If so and at the express request of the testator, the place where the testator intends to have the testator’s will kept must be mentioned in the certificate provided for in section 30.1-08.2-05.
A will executed in compliance with section 30.1-08.2-03 is not invalid merely because it does not comply with this section.

Source:

S.L. 1979, ch. 376, § 4.

Editorial Board Comment.

Mr. Plantard’s commentary about Articles 6, 7 and 8 of the Annex [supra] relate to subsections (a), (b) and (c) [subsections (1), (2) and (3)] respectively of this section. Subsections (a) and (b) [subsections (1) and (2)] are identical to Articles 6 and 7; subsection (c) [subsection (3)] is the same as Article 8 of the Annex except that the prefatory language “In the absence of any mandatory rule pertaining to the safekeeping of the will…” has been deleted because it is inappropriate for inclusion in a local statute designed for enactment by a state that has had no tradition or familiarity with mandatory rules regarding the safekeeping of the wills. Subsection (d) [subsection (4)] embodies the sense of Article 1, section 1 of the Annex which states that compliance with Articles 2 to 5 is necessary and so indicates that compliance with the remaining articles prescribing formal steps is not necessary.

Mr. Plantard’s commentary is as follows:

“The provisions of Article 6 and those of the following articles are not imposed on pain of invalidity. They are nevertheless compulsory legal provisions which can involve sanctions, for example, the professional, civil and even criminal liability of the authorized person, according to the provisions of the law from which he derives his authority.

“The first paragraph, to guarantee a uniform presentation for international wills, simply indicates that signatures shall be placed at the end of international wills, that is, at the end of the text.

“Paragraph 2 provides for the frequent case in which the will consists of several sheets. Each sheet has to be signed by the testator, to guarantee its authenticity and to avoid substitutions. The use of the word ‘signed’ seems to imply that the signature must be in the same form as that at the end of the will. However, in the legal systems which merely require that the individual sheets be paraphed, usually by means of initials, this would certainly have the same value as signature, as a signature itself could simply consist of initials.

“The need for a signature on each sheet, for the purpose of authentifying each such sheet, led to the introduction of a special system for the case when the testator is incapable of signing. In this case it will generally be the authorized person who will sign each sheet in his place, unless, in accordance with Article 5, paragraph 2, the testator has designated another person to sign in his name. In this case, it will of course be this person who will sign each sheet.

“Lastly, it is prescribed that the sheets shall be numbered. Although no further details are given on this subject, it will in practice be up to the authorized person to check if they have already been numbered and, if not, to number them or ask the testator to do so.

“The aim of this provision is obviously to guarantee the orderliness of the document and to avoid losses, subtractions or substitutions.

“The date is an essential element of the will and its importance is quite clear in the case of successive wills. Paragraph 1 of Article 7 indicates that the date of the will in the case of an international will is the date on which it was signed by the authorized person, this being the last of the formalities prescribed by the Uniform Law on pain of invalidity (Article 5, paragraph 3). It is therefore, from the moment of this signature that the international will is valid.

“Paragraph 2 stipulates that the date shall be noted at the end of the will by the authorized person. Although this is compulsory for the authorized person, this formality is not sanctioned by the invalidity of the will which, as is the case in many legal systems such as English, German and Austrian law, remains fully valid even if it is not dated or is wrongly dated. The date will then have to be proved by some other means. It can happen that the will has two dates, that of its drawing up and the date on which it was signed by the authorized person as a result of which it became an international will. Evidently only this last date is to be taken into consideration.

“During the preparatory work it had been intended to organize the safekeeping of the international will and to entrust its care to the authorized person. This plan caused serious difficulties both for the countries which do not have the notary as he is known in Civil law systems and for the countries in which wills must be deposited with a public authority, as is the case, for example, in the Federal Republic of Germany, where wills must be deposited with a Court.

“The authors of the Uniform Law therefore abandoned the idea of introducing a unified system for the safekeeping of international wills. However, where a legal system already has rules on this subject, these rules of course also apply to the international will as well as to other types of will. Finally, the Washington Conference adopted, at the same time as the Convention, a resolution recommending States, in particular, to organize a system facilitating the safekeeping of international wills (see the commentary on this resolution, at the end of this Report). It should lastly be underlined that States desiring to give testators an additional guarantee as regards the international will will organize its safekeeping by providing, for example, that it shall be deposited with the authorized person or with a public officer. Complementary legislation of this kind could be admitted within the framework of paragraph 3 of Article 1 of the Convention, as was mentioned in our commentary on that article.

“These considerations explain why Article 8 starts by stipulating that it only applies ‘in the absence of any mandatory rule pertaining to the safekeeping of the will’. If there happens to be such a rule in the national law from which the authorized person derives his authority this rule shall govern the safekeeping of the will. If there is no such rule, Article 8 requires the authorized person to ask the testator whether he wishes to make a declaration in this regard. In this way, the authors of the Uniform Law sought to reconcile the advantage of exact information so as to facilitate the discovery of the will after the death of the testator, on the one hand, and respect for the secrecy which the testator may want as regards the place where his will is kept, on the other hand. The testator is therefore quite free to make or not to make a declaration in this regard, but his attention is nevertheless drawn to the possibility left open to him, and particularly to the opportunity he has, if he expressly asks for it, to have the details he thinks appropriate in this regard mentioned on the certificate provided for in Article 9. It will thus be easier to find the will again at the proper time, by means of the certificate made out in three copies, one of which remains in the hands of the authorized person.”

30.1-08.2-05. (2-1005) International will — Certificate.

The authorized person shall attach to the will a certificate to be signed by the authorized person establishing that the requirements of this chapter for valid execution of an international will have been fulfilled. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate must be substantially in the following form:

CERTIFICATE I, (name, address, and capacity), a person authorized to act in connection with international wills, certify that on (date) at (place) (name, address, date and place of birth of testator) in my presence and that of the witnesses (name, address, date and place of birth of first witness) and (name, address, date and place of birth of second witness) has declared that the attached document is the testator’s will and that the testator knows the contents thereof. I further certify that in my presence and in that of the witnesses the testator has signed the will or has acknowledged the testator’s signature previously affixed or that following a declaration of the testator stating that the testator was unable to sign the will for the following reason , I have mentioned this declaration on the will, and the signature has been affixed by (name and address). I further certify that the witnesses and I have signed the will; each page of the will has been signed by and numbered [to be completed if appropriate]; I have satisfied myself as to the identity of the testator and of the witnesses as designated above; the witnesses met the conditions requisite to act as such according to the law under which I am acting; the testator has requested me to include the following statement concerning the safekeeping of the testator’s will [to be completed if appropriate]: . (Place of execution) (Date) (Signature)

Click to view

Source:

S.L. 1979, ch. 376, § 5.

Editorial Board Comment.

This section embodies the content of Articles 9, 10 and 11 of the Annex with only minor, clarifying changes. Those familiar with the pre-proved will authorized by Uniform Probate Code § 2-504 [N.D.C.C. § 30.1-08-04] should be comfortable with sections 5 and 6 of this act. Indeed, inclusion of these provisions in the Annex was the result of a concession by those familiar with civil law approaches to problems of execution and proof of wills, to the English speaking countries where will ceremonies are divided between those occurring as testator acts, and those occurring later when the will is probated. Further, since English and Canadian practices reduce post-mortem probate procedures down to little more than the presentation of the will to an appropriate registry and so, approach civil law customs, the concession was largely to accommodate American states where post-mortem probate procedures are very involved. Thus, the primary purpose of the certificate, which provides conclusive proof of the formal validity of the will, is to put wills executed before a civil law notary and wills executed in the American tradition on a par; with the certificate, both are good without question insofar as formal requirements are concerned.

It should be noted that Article III of the Convention binds countries becoming parties to recognize the capacity of an authorized person to act in relation to an international will, as conferred by the law of another country that is a party. This means that an international will coming into one of our states that has enacted the uniform law will be entirely good under local law, and that the certificate from abroad will provide conclusive proof of its validity.

May an international will be contested? The answer is clearly affirmative as to contests based on lack of capacity, fraud, undue influence, revocation or ineffectiveness based on the contents of the will or substantive restraints on testamentary power. Contests based on failure to follow mandatory requirements of execution are not precluded because the next section provides that the certificate is conclusive only “in the absence of evidence to the contrary”. However, the Convention becomes relevant when one asks whether a probate Court may require additional proof of the genuineness of signatures by testators and witnesses. It provides:

Article VI 1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

Presumably, the prohibition against legalization would not preclude additional proof of genuineness if evidence tending to show forgery is introduced, but without contrary proof, the certificate proves the will.

The authorized person is directed to attach the certificate to the will, and to keep a copy. The sense of “keep” intended by the draftsman is “continuously keep,” or “preserve.”

If the will with attached certificate is to be retained by the authorized person or otherwise placed for safekeeping out of the possession of the testator, good practice would involve an unexecuted copy of the will that could be given to the testator for disposition or retention as he saw fit. It would seem that good practice in these cases also would involve attachment of the testator’s copy of the certificate to testator’s copy of the will. The statute is silent on this point, however.

Mr. Plantard’s commentary on the articles of the Annex that are pertinent to section 5, are as follows:

“This provision specifies that the authorized person must attach to the international will a certificate drawn up in accordance with the form set out in Article 10, establishing that the Uniform Law’s provisions have been complied with. The term ‘joint au testament’ means that the certificate must be added to the will, that is, fixed thereto. The English text which uses the work ‘attach’ is perfectly clear on this point. Furthermore, it results from Article 11 that the certificate must be made out in three copies. This document, the contents of which are detailed in Article 10, is proof that the formalities required for the validity of the international will have been complied with. It also reveals the identity of the persons who participated in drawing up the document and may, in addition, contain a declaration by the testator as to the place where he intends his will to be kept. It should be stressed that the certificate is drawn up under the entire responsibility of the authorized person who is the only person to sign it.

“Article 10 sets out the form for the certificate. The authorized person must abide by it, in accordance with the provisions of Article 10 itself, laying down this or a substantially similar form. This last phrase could not be taken as authorizing him to depart from this form: it only serves to allow for small changes of detail which might be useful in the interests of improving its comprehensibility or presentation, for example, the omission of the particulars marked with an asterisk indicating that they are to be completed where appropriate when in fact they do not need to be completed and thus become useless.

“Including the form of a certificate in one of the articles of a Uniform Law is unusual. Normally these appear in the annexes to Conventions. However, in this way, the authors of the Uniform Law underlined the importance of the certificate and its contents. Moreover, the Uniform Law already forms the Annex to the Convention itself.

“The 14 particulars indicated on the certificate are numbered. These numbers must be reproduced on each certificate, so as to facilitate its reading, especially when the reader speaks a foreign language, as they will help him to find the relevant details more easily: the name of the authorized person and the testator, addresses, etc.

“The certificate contains all the elements necessary for the identification of the authorized person, testator and witnesses. It expressly mentions all the formalities which have to be carried out in accordance with the provisions of the Uniform Law. Furthermore, the certificate contains all the information required for the will’s registration according to the system introduced by the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, signed at Basle on 16 May 1972.

“The authorized person must keep a copy of the certificate and deliver one to the testator. Seeing that another copy has to be attached to the will in accordance with Article 9, it may be deduced that the authorized person must make out altogether three copies of the certificate. These cannot be simple copies but have to be three signed originals. This provision is useful for a number of reasons. The fact that the testator keeps a copy of the certificate is a useful reminder for him, especially when his will is being kept by the authorized person or deposited with someone designated by national law. Moreover, discovery of the certificate among the testators’ papers will inform his heirs of the existence of a will and will enable them to find it more easily. The fact that the authorized person keeps a copy of the certificate enables him to inform the heirs as well, if necessary. Lastly, the fact that there are several copies of the certificate is a guarantee against changes being made to one of them and even, to a certain extent, against certain changes to the will itself, for example as regards its date.”

30.1-08.2-06. (2-1006) International will — Effect of certificate.

In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as a will under this chapter. The absence or irregularity of a certificate does not affect the formal validity of a will under this chapter.

Source:

S.L. 1979, ch. 376, § 6.

Editorial Board Comment.

This section, which corresponds to Articles 11 and 12 of the Annex, must be read with the definition of “authorized person” in section 1, and Articles III and IV of the 1973 Convention which will become binding on all states if and when the United States joins that treaty. Articles III and IV of the Convention provide:

Article III. The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

Article IV. The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

In effect, the state enacting this law will be recognizing certificates by authorized persons designated, not only by this state, but by the United States and other parties to the 1973 Convention. Once the identity of one making a certificate on an international will is established, the will may be proved without more, assuming the presence of the recommended form of certificate. Article IX (3) of the 1973 Convention constitutes the United States as the Depositary under the Convention, and Article II obligates each country joining the Convention to notify the Depositary Government of the persons designated by its law as authorized to act in connection with international wills. Hence, persons interested in local probate of an international will from another country will be enabled to determine from the Department of State whether the official making the certificate in which they are interested had the requisite authority.

In this connection, it should be noted that under Article II of the Convention, each contracting country may designate its diplomatic or consular representatives abroad as authorized persons insofar as the local law does not prohibit it. Since the Uniform Act will be the law locally, and since it does not prohibit persons designated by foreign states that are parties to the Convention from acting locally in respect to international wills, there should be a considerable amount of latitude in selecting authorized persons to assist with wills and a correlative reduction in the chances of local non-recognition of an authorized person from abroad. Also, it should be noted that the Uniform Act does not restrict the persons which it constitutes as authorized persons in relation to the places where they can so function. This supports the view that local law as embodied in this statute should not be construed as restrictive in relation to local activities concerning international wills of foreign diplomatic and consular representatives who are resident here.

The certificate requires the authorized person to state that the witnesses had the requisite capacity. If the authorized person derives his authority from the law of a state other than that where he is acting, it would be advisable to have the certificate identify the applicable law.

The Uniform Act is silent in regard to methods of meeting local probate requirements contemplating deposit of the original will with the Court. Section 3-409 [N.D.C.C. § 30.1-15-09] of the Uniform Probate Code, or its counterpart in a state that has not adopted the uniform law on the point, becomes pertinent. The last sentence of UPC 3-409 provides:

A will from a place which does not provide for probate of a will after death, may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place.

One final matter warrants mention. Implicit in local proof of an instrument by means of authentication provided by a foreign official, is the problem of proving the authority of the official. The traditional, exceedingly formalistic, method of accomplishing this has been through what has been known as “legalization”, a process that involves a number of certificates. The capacity of the official who authenticates the signature of the party to the document, if derived from his status as a county official, is proved by the certificate of a high county official. In turn, the county official’s status is proved by the certificate of the area’s secretary of state, whose status is established by another and so on until, ultimately, the Department of State certifies to the identity of the highest local government official in a format that will be persuasive to the receiving country’s foreign relations representative.

Article VI of the 1973 Convention forbids legalization of the signature of testators and witnesses. It provides:

The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.
Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

Thus, it would appear that if the United States, as contracting party, satisfies itself that the signature of a foreign authorized person is authentic, and so indicates to those interested in local probate of the document, the local Court, though presumably able to receive and to act upon evidence to the contrary, cannot reject an international will for lack of proof. This is not to say, of course, that the authenticity of the signature of the foreign authorized person must be shown through the aid of the State Department; plainly, the point may be implied from the face of the document unless and until challenged.

Mr. Plantard’s commentary on this portion of the uniform law is as follows:

“Article 12 states that the certificate is conclusive of the formal validity of the international will. It is therefore a kind of proof supplied in advance.

“This provision is only really understandable in those legal systems, like the United States, where a will can only take effect after it has been subjected to a preliminary procedure of verification (‘Probate’) designed to check on its validity. The mere presentation of the certificate should suffice to satisfy the requirements of this procedure.

“However, the certificate is not always irrefutable as proof, as is indicated by the words ‘in the absence of evidence to the contrary’. If it is challenged, then the ensuing litigation will be solved in accordance with the legal procedure applicable in the Contracting State where the will and certificate are presented.

“The principle set out in Article 13 is already implied by Article 1, as only the provisions of Articles 2 to 5 are prescribed on pain of invalidity. Besides, it is perfectly logical that the absence of or irregularities in a certificate should not affect the formal validity of the will, as the certificate is a document serving essentially for purposes of proof drawn up by the authorized person, without the testator taking any part either in drawing it up or in checking it. This provision is in perfect harmony with Article 12 which by the terms ‘in the absence of evidence to the contrary’ means that one can challenge what is stated in the certificate.

“In consideration of the fact that the authorized person will be a practicing lawyer officially designated by each Contracting State, it is difficult to imagine him omitting or neglecting to draw up the certificate provided for by the national law to which he is subject. Besides, he would lay himself open to an action based on his professional and civil liability. He could even expose himself to sanctions laid down by his national law.

“However, the international will subsists, even if, by some quirk, the certificate which is a means of proof but not necessarily the only one, should be missing, be incomplete or contain particulars which are manifestly erroneous. In these undoubtedly very rare circumstances, proof that the formalities prescribed on pain of invalidity have been carried out will have to be produced in accordance with the legal procedures applicable in each State which has adopted the Uniform Law.”

30.1-08.2-07. (2-1007) International will — Revocation.

An international will is subject to the ordinary rules of revocation of wills.

Source:

S.L. 1979, ch. 376, § 7.

Editorial Board Comment.

Mr. Plantard’s commentary on this portion of the uniform law is as follows:

“The authors of the Uniform Law did not intend to deal with the subject of the revocation of wills. There is indeed no reason why the international will should be submitted to a regime different from that of other kinds of wills. Article 14 therefore merely gives expression to this idea. Whether or not there has been revocation-for example, by a subsequent will-is to be assessed in accordance with the law of each State which has adopted the Uniform Law, by virtue of Article 14. Besides, this is a question mainly concerning rules of substance which would thus overstep the scope of the Uniform Law.”

30.1-08.2-08. (2-1009) Persons authorized to act in relation to international will — Eligibility — Recognition by authorizing agency.

Individuals who have been admitted to practice law before the courts of this state and are currently licensed so to do are authorized persons in relation to international wills.

Source:

S.L. 1979, ch. 376, § 8.

Editorial Board Comment.

The subject of who should be designated to be authorized persons under the Uniform Law is discussed under the heading “Description of the Proposal” in the Prefatory Note.

The first draft of the Uniform Law presented to the National Conference at its 1975 meeting in Quebec City included provision for a special new licensing procedure through which others than attorneys might become qualified. The ensuing discussion resulted in rejection of this approach in favor of the simpler approach of section 9. Among other difficulties with the special licensee approach, representatives of the State Department expressed concern about the attendant burden on the U.S. as Depositary Government, of receiving, keeping up to date, and interpreting to foreign governments the results of fifty different state licensing systems.

30.1-08.2-09. (2-1010) International will information registration.

The secretary of state shall establish a registry system by which authorized persons may register in a central information center, information regarding the execution of international wills, keeping that information in strictest confidence until the death of the maker and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator’s death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or any other individual identifying number established by law, address, and date and place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the maker. The secretary of state, at the request of the authorized person, may cause the information it receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in this state.

Source:

S.L. 1979, ch. 376, § 9.

Editorial Board Comment.

The relevance of this optional, bracketed section to the other sections constituting the uniform law concerning international wills is explained in the Prefatory Note. Also, Mr. Plantard’s observations regarding the Resolution attached to the 1973 Convention are pertinent. He writes:

“The Resolution adopted by the Washington Conference and annexed to its Final Act encourages States which adopt the Uniform Law to make additional provisions for the registering and safekeeping of the international will. The authors of the Uniform Law considered that it was not possible to lay down uniform rules on this subject on account of the differences in tradition and outlook, but several times, both during the preparatory work and during the final diplomatic phase, they underlined the importance of States making such provisions.

“The Resolution recommends organizing a system enabling … ‘the safekeeping, search and discovery of an international will as well as the accompanying certificate’ …

“Indeed lawyers know that many wills are never carried out because the very existence of the will itself remains unknown or because the will is never found or is never produced. It would be quite possible to organize a register or index which would enable one to know after the death of a person whether he had drawn up a will. Some countries have already done something in this field, for example, Quebec, Spain, the Federal Republic of Germany, where this service is connected with the Registry of Births, Marriages and Deaths. Such a system could perfectly well be fashioned so as to ensure respect for the legitimate wish of testators to keep the very existence of their will secret.

“The Washington Conference also underlined that there is already an International Convention on this subject, namely the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, concluded at Basle on 16 May 1972, to which States which are not members of the Council of Europe may accede.

“In this Convention the Contracting States simply undertake to create an internal system for registering wills. The Convention stipulates the categories of will which should be registered, in terms which include the international will. Apart from national bodies in charge of registration, the Convention also provides for the designation by each Contracting State of a national body which must remain in contact with the national bodies of other States and communicate registrations and any information asked for. The Convention specifies that registration must remain secret during the life of the testator. This system, which will come into force between a number of European States in the near future, interested the authors of the Convention, even if they do not accede to it. The last paragraph of the Resolution follows the pattern of the Basle Convention by recommending, in the interests of facilitating an international exchange of information on this matter, the designation in each State of authorities or services to handle such exchanges.

“As for the organization of the safekeeping of international wills, the resolution merely underlies the importance of this, without making any specific suggestions in this regard. This problem has already been discussed in connection with Article 8 of the Uniform Law.

“The Council of Europe Convention on the Establishment of a Scheme of Registration of Wills of May 16, 1972 and related documents were available to the reporter and provided the guidelines for section 10 of this Act.”

CHAPTER 30.1-09 Rules of Construction — Contractual Arrangements Relating to Death

General Editorial Board Comment.

Parts 6 and 7 [N.D.C.C. chs. 30.1-09 and 30.1-09.1] address a variety of construction problems that commonly occur in wills, trusts, and other types of governing instruments. All of the “rules” set forth in these parts yield to a finding of a contrary intention and are therefore rebuttable presumptions.

The rules of construction set forth in Part 6 apply only to wills. The rules of construction set forth in Part 7 apply to wills and other governing instruments.

The sections in Part 6 deal with such problems as death before the testator (lapse), the inclusiveness of the will as to property of the testator, effect of failure of a gift in the will, change in form of securities specifically devised, ademption by reason of fire, sale and the like, exoneration, and exercise of a power of appointment by general language in the will.

30.1-09-01. Requirement that devisee survive testator by one hundred twenty hours. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-02. Choice of law as to meaning and effect of wills. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-03. (2-601) Rules of construction and intention applicable only to wills.

The intention of a testator as expressed in the testator’s will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this chapter apply unless a contrary intention is indicated by the will.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 29; 1995, ch. 322, § 27.

Notes to Decisions

Ambiguity.
Distribution of Non-Probate Property.
Extrinsic Evidence.
Predeceased Devisee.
Purpose in Construing Will.
Testamentary Intent.

Ambiguity.

Whether or not an ambiguity exists in a will is a question of law; the supreme court will determine for itself the correct construction of an unambiguous will. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Whether an ambiguity exists in a will is a question of law for the court to decide; a will provision is ambiguous if it can be given more than one interpretation or understood in more than one sense. Zimbelman v. Loh (In re Estate of Zimbleman), 539 N.W.2d 67, 1995 N.D. LEXIS 193 (N.D. 1995).

Distribution of Non-Probate Property.

By ordering distribution according to payable on death (P.O.D.) designations of savings accounts, and an appropriate unequal distribution of the estate, district court properly gave effect to testator’s intent that accounts be divided equally while abiding by the law governing P.O.D. accounts. Berger v. Peterson (In re Estate of Peterson), 1997 ND 48, 561 N.W.2d 618, 1997 N.D. LEXIS 50 (N.D. 1997).

Extrinsic Evidence.

Where language of a will is clear and unambiguous, the intent of the testator must be determined from the language of the will itself; where language used in a will in unclear, indefinite and ambiguous, extrinsic evidence is permissible to show what the testator meant by what he said, but not to show what testator intended to say. Quandee v. Skene, 321 N.W.2d 91, 1982 N.D. LEXIS 288 (N.D. 1982).

A provision in a will is ambiguous when more than one interpretation may be given to the provision and it may be understood in more than one sense, and if the language of a will is ambiguous, extrinsic evidence is permissible to remove the ambiguity, however, extrinsic evidence is admissible only to show what the testator meant by what he said, not to show what he intended to say. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Extrinsic evidence was properly considered to determine decedent’s intent, and evidence supported a trial court’s finding in interpreting ambiguous provision in decedent’s will; the trial court found that decedent intended the beneficiary to physically farm crop land (as opposed to leasing out land to be farmed on a sharecropping basis), and if he failed to do so, his sibling had an option to buy the land. Ruud v. Frandson, 2005 ND 174, 704 N.W.2d 852, 2005 N.D. LEXIS 208 (N.D. 2005).

Predeceased Devisee.

If the devisee predeceases the testator, the devise fails and becomes part of the residue. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Purpose in Construing Will.

The court’s purpose in construing a will is to ascertain the intention of the testator as it appears from a full and complete consideration of the will in light of the surrounding circumstances. Quandee v. Skene, 321 N.W.2d 91, 1982 N.D. LEXIS 288 (N.D. 1982).

The court’s purpose in construing a will is to ascertain the intention of the testator as it appears from a full and complete consideration of the will when read in light of the surrounding circumstances. In construing a will, each word, clause and provision should be given effect, if possible, and when the language of a will is clear and unambiguous, the intent of the testator must be determined from the language of the will itself. Schatz v. Schatz, 419 N.W.2d 903, 1988 N.D. LEXIS 54 (N.D. 1988).

When the court construes a will, its purpose is to ascertain the testator’s intent as it appears from a complete consideration of the will given the surrounding circumstances; if the language of the will is clear and unambiguous, the court determines the testator’s intent from the language of the will. Zimbelman v. Loh (In re Estate of Zimbleman), 539 N.W.2d 67, 1995 N.D. LEXIS 193 (N.D. 1995).

Testamentary Intent.

It is not essential that a testator understand the meaning of the technical clauses of a will, if the instrument is intended as a will and if it expresses the testator’s intent to distribute his property at death. In re Estate of Ostby, 479 N.W.2d 866, 1992 N.D. LEXIS 32 (N.D. 1992).

Direct evidence that the decedent fully read and understood all of the provisions of his or her will is unnecessary. In re Estate of Ostby, 479 N.W.2d 866, 1992 N.D. LEXIS 32 (N.D. 1992).

If a duly executed will contains the decedent’s general instructions for its contents, testamentary intent exists. In re Estate of Ostby, 479 N.W.2d 866, 1992 N.D. LEXIS 32 (N.D. 1992).

Unless a duly executed will is ambiguous, the testamentary intent is derived from the will itself, not from extrinsic evidence. In re Estate of Ostby, 479 N.W.2d 866, 1992 N.D. LEXIS 32 (N.D. 1992).

DECISIONS UNDER PRIOR LAW

Compliance with Law of Wills.

A declaration by decedent to his son that certain farm equipment was “yours and mine and to be left to you” was a present gift of one-half the property, but declaration as to half held by the deceased was testamentary in nature and could become effective only by compliance with the law of wills. Hruby v. Romanick, 128 N.W.2d 106, 1964 N.D. LEXIS 100 (N.D. 1964).

Condition Contrary to Public Policy.

Where provision in will required testatrix’ niece to divorce her husband and to terminate cohabitation with him as condition precedent to having funds in a trust created by will transferred to such niece, condition tended to encourage divorce, was contrary to public policy, and therefore was void. Graves v. First Nat'l Bank, 138 N.W.2d 584, 1965 N.D. LEXIS 105 (N.D. 1965).

Construction of Terms.

Term “separated” in clause of will which provided that trust should not be established in the event that testator was separated from his surviving wife was construed to mean separation in the physical sense, as opposed to a judicial separation. In re Estate of Johnson, 214 N.W.2d 112, 1973 N.D. LEXIS 99 (N.D. 1973).

Construing Intent.

Sole purpose of court in construing a will was to ascertain intention of testator as same appeared from a full and complete consideration of the will, when read in light of surrounding circumstances. If that intent could be ascertained and was not violative of some rule of law which existed for purpose of limiting power of testator to dispose of his property as he wished, such intent had to prevail. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Intention controlling in construction of a will was that which appeared either expressly or by necessary implication from language of will. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Duty of Court.

The first duty of court in construing a will was to ascertain testator’s intent from language used, considering circumstances under which will was made. Priewe v. Priewe, 43 N.D. 509, 175 N.W. 732, 1919 N.D. LEXIS 68 (N.D. 1919).

Disposition of Insurance.

Intention on part of insured to dispose by will of avails of a life insurance policy made payable to his estate and hence payable to his heirs at law, must have been declared in clear and unmistakable terms; such intention would not be inferred from fact that will purported to dispose of all “property” of testator. ANDERSON v. NORTHERN & DAKOTA TRUST CO., 67 N.D. 458, 274 N.W. 127, 1937 N.D. LEXIS 102 (N.D. 1937).

Effect of Intention.

In construing a will, testator’s intention had to be given effect as far as possible. In re McQueen's Estate, 64 N.D. 31, 250 N.W. 95, 1933 N.D. LEXIS 243 (N.D. 1933); Crabtree v. Kelly, 65 N.D. 501, 260 N.W. 262, 1935 N.D. LEXIS 136 (N.D. 1935); Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950); Hull v. Rolfsrud, 65 N.W.2d 94, 1954 N.D. LEXIS 80 (N.D. 1954).

Extrinsic Evidence.

Where under language of a will there was no doubt as to intent of testator to dispose of his property, but it was shown by collateral facts and circumstances that bequest applied equally to two or more different persons, such will presented a latent ambiguity and parol or extrinsic evidence was permissible to remove such ambiguity. Nystuen v. Nystuen, 80 N.W.2d 671 (N.D. 1957).

If there was a latent ambiguity in a will, and, after striking false words, there was left evidence sufficient to show intention of testator and to describe legatee, extrinsic evidence could be admitted to explain, but not to correct, a mere mistake. In re Kahoutek's Estate, 39 N.D. 215, 166 N.W. 816, 1918 N.D. LEXIS 12 (N.D. 1918).

Informal Language.

Intention of testator was not to be defeated because he merely failed to clothe his ideas in technical language, but, when ascertained, was to be implicitly obeyed, however informal, awkward, or defective language was in which it had been expressed. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Where testator’s intent was apparent, that intent would be given effect although testator failed to use apt legal words in a bequest or devise. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Intent Shown.

Provisions in a will giving and bequeathing to named brothers and sisters of testatrix “the remaining one-half of all property of which I die seized real, personal and mixed, wheresoever situated”, showed clearly that testatrix intended to pass all her property by phrase “give and bequeath” used in will. Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950).

When testator’s primary and dominant purpose was completely expressed in trust provisions of will, independent of any provisions that were void as against statute of perpetuities, such portion expressing primary intent of testator would be held valid so as to carry out testator’s intention as far as possible. Hull v. Rolfsrud, 65 N.W.2d 94, 1954 N.D. LEXIS 80 (N.D. 1954).

Rules of Construction Subordinate to Intent.

All rules and presumptions relating to construction of wills were subordinate to intention of the testator and had to yield thereto where such intention was ascertained, however crudely will may have been drawn. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Terms of Will.

Intention of testator had to be determined from terms of will itself, and where will was explicit courts were powerless to vary its terms. In re Kahoutek's Estate, 39 N.D. 215, 166 N.W. 816, 1918 N.D. LEXIS 12 (N.D. 1918).

Substance.

In construing a will, substance rather than form had to be regarded. Imperfection or awkwardness of expression would not defeat testator’s intention; if it could be ascertained from will, such intention would be given effect regardless of form of words used and of absence of technical terms. In re Glavkee's Estate, 76 N.D. 171, 34 N.W.2d 300, 1948 N.D. LEXIS 69 (N.D. 1948).

Unconditional Absolute Devise.

Where an unconditional devise of all decedent’s property was contained in a valid will, and such bequest was followed by precatory words not used in the imperative and not certain in meaning as to what devisee would do in distributing property to other relatives of decedent, such precatory words did not in any way destroy absolute devise of property. Estate of Lubenow v. Lubenow, 146 N.W.2d 166, 1966 N.D. LEXIS 132 (N.D. 1966).

Collateral References.

Wills 438-444.

80 Am. Jur. 2d, Wills, §§ 996 et seq.

95 C.J.S. Wills, §§ 831-839.

“Proceeds” in will as indicating intention as to whether assets are to constitute principal or income, 1 A.L.R.2d 194.

Intent: admissibility of extrinsic evidence on issue of testamentary intent, 21 A.L.R.2d 319.

“College education”, purview of gift, charge, or the like for, 36 A.L.R.2d 1323.

Taxation, construction and effect of provisions of will relied upon as affecting the burden of, 37 A.L.R.2d 7.

Limitation of actions: construction of will with respect to right of retainer or setoff, against debtor’s distributive share of estate, of debt barred by statute of limitations, 39 A.L.R.2d 675, 685.

Option created by will to purchase real estate, 44 A.L.R.2d 1214, 1228.

Punctuation: changing, deleting, or adding punctuation in construing will, 70 A.L.R.2d 215.

Release: construction and effect of will provision releasing or forgiving debt due testator, 76 A.L.R.2d 1020.

Omission of provision for child, admissibility of extrinsic evidence to show testator’s intention as to, 88 A.L.R.2d 616.

Conclusiveness of testator’s statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Body: validity and effect of testamentary direction as to disposition of testator’s body, 7 A.L.R.3d 747.

Estate: validity, construction, and effect of bequest or devise to a person’s estate, or to the person or his estate, 10 A.L.R.3d 483.

Estate grant: admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given, 21 A.L.R.3d 778.

Marital status: validity and construction of testamentary gift conditioned upon beneficiary’s remaining married, 28 A.L.R.3d 1325.

Common disaster: construction of provision as to which of two or more persons shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 A.L.R.3d 359.

Temporary will: effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 A.L.R.3d 938.

Advisors to trustee or executor, construction and operation of will or trust provision appointing, 56 A.L.R.3d 1249.

Wills: amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates, 58 A.L.R.3d 317.

Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by amendment or repeal, 63 A.L.R.3d 603.

Construction and effect of will provisions not expressly mentioning payment of death taxes but relied on as affecting the burden of estate or inheritance taxes, 70 A.L.R.3d 630.

Determination of price under testamentary option to buy real estate, 13 A.L.R.4th 947.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate, 35 A.L.R.4th 788.

Wills: effect of gift of specified percentage or share of estate (or residuary estate) to include specific property found to be of a greater value than share bequeathed, 63 A.L.R.4th 1186.

30.1-09-04. (2-602) Will passes all property — After-acquired property.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator’s death.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 30; 1995, ch. 322, § 27.

General Editorial Board Comment.

Purpose and Scope of Revision. This section is revised to assure that, for example, a residuary clause in a will not only passes property owned at death that is not otherwise devised, even though the property was acquired by the testator after the will was executed, but also passes property acquired by a testator’s estate after his or her death. This reverses a case like Braman Estate, 435 Pa. 573, 258 A.2d 492 (1969), where the Court held that Mary’s residuary devise to her sister Ruth “or her estate,” which had passed to Ruth’s estate where Ruth predeceased Mary by about a year, could not go to Ruth’s residuary legatee. The Court held that Ruth’s will had no power to control the devolution of property acquired by Ruth’s estate after her death; such property passed, instead, by intestate succession from Ruth. This section, applied to the Braman Estate case, would mean that the property acquired by Ruth’s estate after her death would pass under her residuary clause.

The added language also makes it clear that items such as bonuses awarded to an employee after his or her death pass under his or her will.

DECISIONS UNDER PRIOR LAW

Devise of Property Not Owned.

Fact that in one paragraph of a will testator devised by specific description property that he did not own would not justify court in taking an equivalent amount from a bequest which was definitely made to another, and in saying that fact that former property was not owned by testator justified the conclusion that he intended that his valid and definite bequests should be set aside. In re Kahoutek's Estate, 39 N.D. 215, 166 N.W. 816, 1918 N.D. LEXIS 12 (N.D. 1918).

Failure to Describe Property.

The failure to describe devised property in a will did not invalidate the will. Collins v. Stroup, 71 N.D. 679, 3 N.W.2d 742, 1942 N.D. LEXIS 103 (N.D. 1942).

Rent for Devised Property.

Decedent’s widow was entitled to rent for a tract of land which he devised to her absolutely and which she occupied as a homestead. In re Korsmo's Estate, 56 N.D. 927, 220 N.W. 128, 1928 N.D. LEXIS 216 (N.D. 1928).

Terms Denoting Intent.

Former section permitted a testator to use the words “devise” or “bequeath” or “any other terms” denoting his intent to dispose of all his real or personal property. Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950).

Collateral References.

Wills 8, 482, 578.

80 Am. Jur. 2d, Wills, §§ 1165 et seq.

95 C.J.S. Wills, §§ 55, 56; 96 C.J.S. Wills, §§ 1085, 1099-1104.

Enlarged interest acquired by testator after execution of will as passing by devise or bequest, 18 A.L.R.2d 519.

Devise of “home” as including property acquired by testator subsequently to execution of will, 38 A.L.R.2d 840, 852.

Effect of residuary clause to pass property acquired by testator’s estate after his death, 39 A.L.R.3d 1390.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.

30.1-09-05. (2-603) Antilapse — Deceased devisee — Class gifts.

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator by one hundred twenty hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree, then those of more remote degree take by representation. One who would have been a devisee under a class gift if that person had survived the testator is treated as a devisee for purposes of this section where that person’s death occurred before or after the execution of the will.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 31; 1995, ch. 322, §§ 8, 27.

Editorial Board Comment.

[North Dakota has retained the pre-1990 version of this section of the Uniform Probate Code and therefore the original comment has been retained here.] This section prevents lapse by death of a devisee before the testator if the devisee is a relative and leaves issue who survives the testator. A relative is one related to the testator by kinship and is limited to those who can inherit under section 30.1-04-03 (through grandparents); it does not include persons related by marriage. Issue include adopted persons and illegitimates to the extent they would inherit from the devisee; see sections 30.1-01-06 and 30.1-04-09. Note that the section is broader than some existing anti-lapse statutes which apply only to devises to children and other descendants, but is narrower than those which apply to devises to any person. The section is expressly applicable to class gifts, thereby eliminating a frequent source of litigation. It also applies to the so-called “void” gift, where the devisee is dead at the time of execution of the will. This, though contrary to some decisions, seems justified. It still seems likely that the testator would want the issue of a person included in a class term but dead when the will is made to be treated like the issue of another member of the class who was alive at the time the will was executed but who died before the testator.

The five-day survival requirement stated in section 30.1-09-01 [this section was repealed by S.L. 1993, ch. 334, § 50] does not require issue who would be substituted for their parent by this section to survive their parent by any set period.

Section 30.1-04-06 [this section was repealed by S.L. 1995, ch. 322, § 26] describes the method of division when a taking by representation is directed by the Code.

Notes to Decisions

Applicability.
Predeceased Devisee.

Applicability.

This section deals with devisees who are grandparents or lineal descendants of grandparents of the testator and is not applicable to an action in which the beneficiary, who was the testator’s sister-in-law, was not a lineal descendant of the testator’s grandparents. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Predeceased Devisee.

If the devisee predeceases the testator, the devise fails and becomes part of the residue. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Adopted Children.

Adopted children come within meaning of term “lineal descendants” as used in former section, and as such could take a legacy given by will to one of the adopting parents and thus prevent legacy from lapsing when legatee died before testatrix. Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950).

Application.

The provision of former section for a lapse did not apply if testatrix made other provision in case of predecease of a devisee. Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950).

Collateral References.

Wills 524, 849-866.

80 Am. Jur. 2d, Wills, §§ 1423 et seq.

96 C.J.S. Wills, §§ 970, 980-1004, 1791-1821.

Antilapse statute as applicable to devise or beq1791-1821uest in terms of distributive share, under law, in estate of testator, 3 A.L.R.2d 1419.

Time of ascertainment of membership with respect to devise or bequest to class which takes effect at testator’s death, 6 A.L.R.2d 1342.

Designated individual: devise or bequest to designated individual “or his estate”, “or his children”, “or his representatives”, or the like (other than “or his heirs”) as subject to lapse in event of individual’s death before that of testator, 11 A.L.R.2d 1387.

Who is “child”, “issue”, “descendant”, “relation”, “heir”, etc., within antilapse statute describing the person taking through or from the legatee or devisee, 19 A.L.R.2d 1159.

Illegitimate, right to take under testamentary gift to “heirs”, 27 A.L.R.2d 1232.

Right of devisee of precedent estate to take under limitation over to heirs or next of kin of testator, 30 A.L.R.2d 393.

Time as of which members of class described as remainderman’s or life tenant’s “heirs”, “next of kin”, “descendants”, “issue”, “family”, or the like, substituted by will to take place of deceased remainderman, are to be ascertained, 33 A.L.R.2d 242.

Illegitimates as within class of “children”, 34 A.L.R.2d 4.

Devolution of lapsed portion of residuary estate, 36 A.L.R.2d 1117, 1129.

Implications of class gift, giving to surviving residuary legatees lapsed portion of residuary estate, 36 A.L.R.2d 1117, 1129.

Time as of which members of class described as grantor’s or settlor’s “heirs”, “next of kin”, “relations”, and the like to whom a future gift is made, are to be ascertained, 38 A.L.R.2d 327.

Half blood: testamentary gift to class or group of specified relationship as including those of half blood, 49 A.L.R.2d 1362.

Class gifts, applicability of antilapse statutes to, 56 A.L.R.2d 948.

Time of ascertaining persons to take where designated as the “heirs”, “next of kin”, “descendants”, etc., of one other than testator, life tenant, or remainderman, 60 A.L.R.2d 1394.

When is a gift by will one to a class, 61 A.L.R.2d 212.

Intention of testator as defeating operation of antilapse statute, 63 A.L.R.2d 1172.

Who are within terms “relation”, “descendant”, “child”, “brother”, “sister”, etc., describing the legatee or devisee, in statute providing against lapse upon death of legatee or devisee before testator, 63 A.L.R.2d 1195.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

Construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 A.L.R.3d 359.

Inter vivos trust: antilapse statute as applicable to interest of beneficiary under inter vivos trust who predeceases life-tenant settlor, 47 A.L.R.3d 358.

Gift over to “survivors” of class or group of designated beneficiaries as restricted to surviving members of class or group, or as passing to heirs or representatives of deceased beneficiary, 54 A.L.R.3d 280.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Action for tortious interference with bequest as precluded by will contest remedy, 18 A.L.R.5th 211.

Adopted child as within class in testamentary gift, 36 A.L.R.5th 395.

30.1-09-06. (2-604) Failure of testamentary provision.

Except as provided in section 30.1-09-05, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.
Except as provided in section 30.1-09-05, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interests of each in the remaining part of the residue.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 32; 1995, ch. 322, § 27.

Editorial Board Comment.

This section applies only if Section 2-603 [N.D.C.C. § 30.1-09-05] does not produce a substitute taker for a devisee who fails to survive the testator by 120 hours. There is also a special rule for disclaimers contained in Section 2-1106(b)(3)(A) [N.D.C.C. § 30.1-10.1-03(4)]; a disclaimed devise may be governed by either Section 2-603 [N.D.C.C. § 30.1-09-05] or the present section, depending on the circumstances.

A devise of “all of my estate,” or a devise using words of similar import, constitutes a residuary devise for purposes of this section.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 132 (Supp. 1992).

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (§ 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (§§ 2-1101 – 2-1117) [N.D.C.C. ch. 30.1-10.1]. The statutory references in this Comment to former section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.

Notes to Decisions

Merged Charitable Organizations.
Predeceased Devisee.
Residue.

Merged Charitable Organizations.

Where testator bequeathed and devised residue of his estate to four nonprofit charitable organizations, and he failed to provide for a gift over in event any of the residuary devisees ceased to exist at time of his death, there was no lapse of devise to one of organizations which had merged into another of charitable organizations before testator’s death, and, pursuant to former section 10-25-06 (see section 10-33-85 et seq., for similar provisions) remaining merged organization was entitled to devise made to defunct organization where such disposition of devise in no way frustrated charitable intent of testator. Mercy Hosp. v. Stillwell, 358 N.W.2d 506, 1984 N.D. LEXIS 417 (N.D. 1984).

Predeceased Devisee.

If the devisee predeceases the testator, the devise fails and becomes part of the residue. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

Residue.

Residue, or residuum, is that portion of the testator’s property not otherwise disposed of by will. Zimbelman v. Loh (In re Estate of Zimbleman), 539 N.W.2d 67, 1995 N.D. LEXIS 193 (N.D. 1995).

Collateral References.

Effect of impossibility of performance of condition precedent to testamentary gift, 40 A.L.R.4th 193.

30.1-09-07. (2-605) Change in securities — Accessions — Nonademption.

If a testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
1. As much of the devised securities as is a part of the estate at the time of the testator’s death.
2. Any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options.
3. Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity.
4. Any additional securities of the entity owned by the testator as a result of a plan of reinvestment.
Distributions before death with respect to a specifically devised security not provided for in subsection 1 are not part of the specific devise.

Source:

S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 2; 1993, ch. 334, § 33; 1995, ch. 322, §§ 9, 27.

Editorial Board Comment.

[North Dakota has not adopted the 1990 revisions to this section of the Uniform Probate Code and therefore the original comment has been retained here] Subsection 2 is intended to codify existing law to the effect that cash dividends declared and payable as of a record date occurring before the testator’s death do not pass as a part of the specific devise even though paid after death. See section 4 [N.D.C.C. 59-04.1-04, repealed see now N.D.C.C. § 59-04.2-04], Revised Uniform Principal and Income Act.

Collateral References.

Wills 728, 754.

80 Am. Jur. 2d, Wills, §§ 1458 et seq.

96 C.J.S. Wills, §§ 1601, 1655 et seq.

Ademption of specific legacy of corporate stock or other corporate securities, what amounts to, 61 A.L.R.2d 449.

Dividends or interest accruing between testator’s death and payment of legacy, bequest of bank deposits, stocks, bonds, notes, or other securities as carrying, 15 A.L.R.3d 1038.

Admissibility of extrinsic evidence to identify stock, bonds, or other securities disposed of by will, 16 A.L.R.3d 432.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

30.1-09-08. (2-606) Nonademption of specific devises — Unpaid proceeds of sale, condemnation, or insurance — Sale by conservator.

A specific devisee has the right to specifically devised property in the testator’s estate at the testator’s death and to:
1. Any balance of the purchase price, together with any security interest, owed by a purchaser at the testator’s death by reason of sale of the property by the testator.
2. Any amount of a condemnation award for the taking of the property unpaid at death.
3. Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property.
4. Any property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation.
If specifically devised property is sold, mortgaged, or otherwise encumbered by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated person, or a condemnation award, insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated person, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. This subsection does not apply if after the sale, encumbrance, condemnation, casualty, or recovery, it was adjudicated that the testator’s incapacity ceased and the testator survived the adjudication by at least one year. The right of a specific devisee under this subsection is reduced by any right the devisee has under subsection 1.

Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 9; 1989, ch. 401, § 3; 1993, ch. 334, § 34; 1995, ch. 322, §§ 10, 27; 1999, ch. 294, § 2.

DECISIONS UNDER PRIOR LAW

Proceeds From Sale of Devised Property.

Under former section, where a testator entered into an executory contract for sale of previously devised property, devisee, upon the death of testator, succeeded to interest of testator therein, whatever legal nature of that interest might have been, and was entitled to receive all proceeds of such contract which were paid after testator’s death. Shure v. Dahl, 80 N.W.2d 825, 1957 N.D. LEXIS 97 (N.D. 1957).

Collateral References.

Testamentary direction to devisee to pay stated sum of money to third party as creating charge or condition or as imposing personal liability on devisee for nonpayment, 54 A.L.R.4th 1098.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

30.1-09-09. (2-607) Nonexoneration.

A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 35; 1995, ch. 322, § 27.

Editorial Board Comment.

See section 30.1-19-14 empowering the personal representative to pay an encumbrance under some circumstances; the last sentence of that section makes it clear that such payment does not increase the right of the specific devisee. The present section governs the substantive rights of the devisee. The common law rule of exoneration of the specific devise is abolished by this section, and the contrary rule is adopted.

For the rule as to exempt property, see section 30.1-07-01.

The rule of this section is not inconsistent with Section 2-606(b) [N.D.C.C. § 30.1-09-08(2)]. If a conservator or agent for an incapacitated principal mortgages specifically devised property, Section 2-606(b) provides that the specific devisee is entitled to a pecuniary devise equal to the amount of the unpaid loan. Section 2-606(b) does not contradict this section, which provides that the specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration.

30.1-09-10. (2-608) Exercise of power of appointment.

A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 36; 1995, ch. 322, §§ 11, 27.

Editorial Board Comment.

[North Dakota has retained the pre-1990 version of this section of the Uniform Probate Code and therefore the original comment has been retained here.] Although there is some indication that more states will adopt special legislation on powers of appointment, and this Code has therefore generally avoided any provisions relating to powers of appointment, there is great need for uniformity on the subject of exercise by a will purporting to dispose of all of the donee’s property, whether by a standard residuary clause or a general recital of property passing under the will. Although a substantial number of states have legislation to the effect that a will with a general residuary clause does manifest an intent to exercise a power, the contrary rule is stated in the present section for two reasons: 1. this is still the majority rule in the United States, and 2. most powers of appointment are created in marital deduction trusts and the donor would prefer to have the property pass under his trust instrument unless the donee affirmatively manifests an intent to exercise the power.

Under this section and section 30.1-09-03, the intent to exercise the power is effective if it is “indicated by the will.” This wording permits a Court to find the manifest intent if the language of the will interpreted in light of all the surrounding circumstances shows that the donee intended an exercise, except, of course, if the donor has conditioned exercise on an express reference to the original creating instrument. In other words, the modern liberal rule on interpretation of the donee’s will would be available.

DECISIONS UNDER PRIOR LAW

Use of Term “Devise.”

Former section permitted the word “devise” to be used to pass all property of the testator, real and personal, in certain cases. Heollinger v. Molzohn, 77 N.D. 108, 41 N.W.2d 217, 1950 N.D. LEXIS 110 (N.D. 1950).

Collateral References.

Powers 33 (1, 2).

62 Am. Jur. 2d, Powers of Appointment and Alienation, §§ 73 et seq.

Disposition of all or residue of testator’s property, without referring to power of appointment, as constituting sufficient manifestation of intention to exercise power, in absence of statute, 15 A.L.R.3d 346.

Effect of statute upon determination whether disposition of all or residue of testator’s property, without referring to power of appointment, sufficiently manifests intention to exercise power, 16 A.L.R.3d 911.

30.1-09-11. Construction of generic terms to accord with relationships as defined for intestate succession. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-12. (2-609) Ademption by satisfaction.

Property a testator gave in the testator’s lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if the will provides for deduction of the gift, the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
For the purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator’s death, whichever occurs first.
If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying sections 30.1-09-05 and 30.1-09-06, unless the testator’s contemporaneous writing provides otherwise.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 37; 1995, ch. 322, § 27.

Editorial Board Comment.

Scope and Purpose of Revisions. In addition to minor stylistic changes, this section is revised to delete the requirement that the gift in satisfaction of a devise be made to the devisee. The purpose is to allow the testator to satisfy a devise to A by making a gift to B. Consider why this might be desirable. G’s will made a $20,000 devise to his child, A. G was a widower. Shortly before his death, G in consultation with his lawyer decided to take advantage of the $10,000 annual gift tax exclusion and sent a check for $10,000 to A and another check for $10,000 to A’s spouse, B. The checks were accompanied by a letter from G explaining that the gifts were made for tax purposes and were in lieu of the $20,000 devise to A. The removal of the phrase “to that person” from the statute allows the $20,000 devise to be fully satisfied by the gifts to A and B.

This section parallels Section 2-109 [N.D.C.C. § 30.1-04-10] on advancements and follows the same policy of requiring written evidence that lifetime gifts are to be taken into account in the distribution of an estate, whether testate or intestate. Although Courts traditionally call this “ademption by satisfaction” when a will is involved, and “advancement” when the estate is intestate, the difference in terminology is not significant.

Some wills expressly provide for lifetime advances by a hodgepodge clause. Where the will contains no such clause, this section requires either the testator to declare in writing that the gift is in satisfaction of the devise or its value is to be deducted from the value of the devise or the devisee to acknowledge the same in writing.

To be a gift in satisfaction, the gift need not be an outright gift; it can be in the form of a will substitute, such as designating the devisee as the beneficiary of the testator’s life-insurance policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.

Subsection (b) [subsection (2)] on value accords with Section 2-109 [N.D.C.C. § 30.1-04-10] and applies if, for example, property such as stock is given. If the devise is specific, a gift of the specific property to the devisee during lifetime adeems the devise by extinction rather than by satisfaction, and this section would be inapplicable. Unlike the common law of satisfaction, however, specific devises are not excluded from the rule of this section. If, for example, the testator makes a devise of a specific item of property, and subsequently makes a gift of cash or other property to the devisee, accompanied by the requisite written intent that the gift satisfies the devise, the devise is satisfied under this section even if the subject of the specific devise is still in the testator’s estate at death (and hence would not be adeemed under the doctrine of ademption by extinction).

Under subsection (c) [subsection (3)] , if a devisee to whom a gift in satisfaction is made predeceases the testator and his or her descendants take under Section 2-603 [N.D.C.C. § 30.1-09-05] or 2-604 [N.D.C.C. § 30.1-09-06], they take the same devise as their ancestor would have taken had the ancestor survived the testator; if the devise is reduced by reason of this section as to the ancestor, it is automatically reduced as to the devisee’s descendants. In this respect, the rule in testacy differs from that in intestacy; see Section 2-109(c) [N.D.C.C. § 30.1-04-10(3)].

Collateral References.

Wills 757-762, 772.

80 Am. Jur. 2d, Wills, §§ 1458 et seq.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

Presumption and burden of proof with respect to advancement, 31 A.L.R.2d 1036.

Conclusiveness of testator’s statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Conveyance or surrender of property as an accord and satisfaction of contract obligation, 59 A.L.R.5th 665.

30.1-09-13. (2-514) Contracts concerning succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 1975, can be established only by:

Provisions of a will stating material provisions of the contract;
An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
A writing signed by the decedent evidencing the contract.

The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 38; 1995, ch. 322, § 27.

Editorial Board Comment.

No substantive revision of this section is made, but the section is relocated and renumbered to make room for new Part 7 [The section was moved from Part 6 to Part 5 of Article II of the Uniform Probate Code; however, North Dakota retained its former location. Part 7 is found in N.D.C.C. ch. 30.1-09.1.].

It is the purpose of this section to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states; and in many states if two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both.

This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence prove the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence.

This section does not preclude recovery in quantum meruit for the value of services rendered the testator.

Notes to Decisions

No Contract Established.
Oral Contract.

No Contract Established.

In an action brought by a surviving spouse’s stepchildren challenging her inter vivos transfers of real estate to her natural child and her natural child’s husband on the grounds that it circumvented an alleged agreement between the father and stepmother for the disposition of their property upon their deaths, the father’s 1985 will clearly and unambiguously provided that his wife, the children’s stepmother, was to receive all of the rest, residue and remainder of his property if she survived him, which she did. The prior 1973 wills did not reflect an agreement by the father and his wife to treat all of the children equally upon the surviving spouse’s death; therefore, the wife became the sole owner of all of the assets of the father’s estate, other than a relatively small amount of money left to a stepdaughter of his and the stepmother acted within her rights and power in conveying assets to anyone she chose. Martin v. Berg, 2005 ND 108, 697 N.W.2d 723, 2005 N.D. LEXIS 125 (N.D. 2005).

Oral Contract.

Where a will did not make reference to a contract to make a will and the petitioners did not offer any writing signed by the testator to evidence such a contract, rather, the petitioners offered to present testimony of an oral contract, such testimony was prohibited. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Conjoint Will.

Terms “conjoint will” and “mutual will” did not mean the same, but referred to different types of wills, conjoint will implying that testators owned property in common, and mutual will referring to one where two or more persons made mutual or reciprocal provisions in favor of each other. Collins v. Stroup, 71 N.D. 679, 3 N.W.2d 742, 1942 N.D. LEXIS 103 (N.D. 1942).

Collateral References.

Wills 56-68.

79 Am Jur 2d Wills § 56; 79 Am Jur 2d Wills § 671 et seq.

94 C.J.S. Wills, §§ 111-126.

Promise not to make a will, validity and effect of, 32 A.L.R.2d 370, 380.

Breach of contract: statute of limitations applicable to action to enforce, or recover damages for breach of, contract to make a will, 94 A.L.R.2d 810.

Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath, 94 A.L.R.2d 921.

Acceptance of benefits under will as election precluding enforcement of contract right as to property bequeathed, 60 A.L.R.3d 1147.

Damages: measure of damages for breach of contract to will property, 65 A.L.R.3d 632.

CHAPTER 30.1-09.1 Rules of Construction of Governing Instrument

General Editorial Board Comment.

Part 7 contains rules of construction applicable to wills and other governing instruments, such as deeds, trusts, appointments, beneficiary designations, and so on. Like the rules of construction in Part 6 (which apply only to wills), the rules of construction in this Part yield to a finding of a contrary intention.

Some of the sections in Part 7 are revisions of sections contained in Part 6 of the pre-1990 Code. Although these sections originally applied only to wills, their restricted scope was inappropriate.

Some of the sections in Part 7 are new, having been added to the Code as desirable means of carrying out common intention.

Application to Pre-Existing Governing Instruments. Under Section 8-101(b) [N.D.C.C. § 30.1-35-01(2)], for decedents dying after the effective date of enactment, the provisions of this Code apply to governing instruments executed prior to as well as on or after the effective date of enactment. The Joint Editorial Board for the Uniform Probate Code has issued a statement concerning the constitutionality under the Contracts Clause of this feature of the Code. The statement, titled “Joint Editorial Board Statement Regarding the Constitutionality of Changes in Default Rules as Applied to Pre-Existing Documents,” can be found at 17 Am. C. Tr. & Est. Couns. Notes 184 (1991) or can be obtained from the headquarters office of the National Conference of Commissioners on Uniform State Laws, 676 N. St. Clair St., Suite 1700, Chicago, IL 60611, Phone 312/915-0195, FAX 312/915-0187.

30.1-09.1-01. (2-701) Scope.

In the absence of a finding of a contrary intention, the rules of construction in this chapter control the construction of a governing instrument. The rules of construction in this chapter apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provisions or governing instrument.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Editorial Board Comment

The rules of construction in this Part apply to governing instruments of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument.

The term “governing instrument” is defined in Section 1-201 [N.D.C.C. § 30.1-01-06] as “a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.”

Certain of the sections in this Part are limited in their application to donative dispositions or governing instruments of a certain type or types. Section 2-704 [N.D.C.C. § 30.1-09.1-04], for example, applies only to a governing instrument creating a power of appointment. Section 2-706 [N.D.C.C. § 30.1-09.1-06] applies only to governing instruments that are “beneficiary designations,” a term defined in Section 1-201 [N.D.C.C. § 30.1-01-06] as referring to “a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death.” Section 2-707 [N.D.C.C. § 30.1-09.1-07] applies only to governing instruments creating a future interest under the terms of a trust.

30.1-09.1-02. (2-702) Requirement of survival by one hundred twenty hours.

For the purposes of this title, except as provided in subsection 4, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed to have predeceased the event.
Except as provided in subsection 4, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by one hundred twenty hours is deemed to have predeceased the event.
Except as provided in subsection 4, if it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by one hundred twenty hours, one-half of the property passes as if one had survived by one hundred twenty hours and one-half as if the other had survived by one hundred twenty hours and there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by one hundred twenty hours, the property passes in the proportion that one bears to the whole number of co-owners. For purposes of this subsection, the term “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.
Survival by one hundred twenty hours is not required if:
1. The governing instrument contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
2. The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specific period or expressly requires the individual to survive the event by a specific period, but survival of the event or the specified period must be established by clear and convincing evidence;
3. Imposition of a one-hundred-twenty-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under subdivision a of subsection 1, subdivision a of subsection 2, or subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of subsection 3 of section 47-02-27.1, but survival must be established by clear and convincing evidence; or
4. The application of a one-hundred-twenty-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition, but survival must be established by clear and convincing evidence.
1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good-faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other third party received written notice of a claimed lack of entitlement under this section. A payer or other third party is liable for a payment made or other action taken after the payer or other third party received written notice of a claimed lack of entitlement under this section.
2. Written notice of a claimed lack of entitlement under subdivision a must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 12, 27.

Editorial Board Comment

Scope and Purpose of Revision. This section parallels Section 2-104 [N.D.C.C. § 30.1-04-04], which requires an heir to survive the intestate by 120 hours in order to inherit.

The scope of this section is expanded to cover all provisions of a governing instrument and this Code that relate to an individual surviving an event (including the death of another individual). As expanded, this section imposes the 120-hour requirement of survival in the areas covered by the Uniform Simultaneous Death Act. By 1993 technical amendment, an anomalous provision exempting securities registered under Part 3 of Article VI (Uniform TOD Security Registration Act) from the 120-hour survival requirement was eliminated. The exemption reflected a temporary concern attributable to UTODSRA’s preparation prior to discussion of inserting a 120-hour survival requirement in the freestanding Uniform Simultaneous Death Act (USDA).

In the case of a multiple-party account such as a joint checking account registered in the name of the decedent and his or her spouse with right of survivorship, the 120-hour requirement of survivorship will not, under the facility-of-payment provision of Section 6-222(1) [30.1-31-15(1)], interfere with the surviving spouse’s ability to withdraw funds from the account during the 120-hour period following the decedent’s death.

Note that subsection (d)(1) [subsection (4)(a)] provides that the 120-hour requirement of survival is inapplicable if the governing instrument “contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case.” The application of this provision is illustrated by the following example.

Example. G died leaving a will devising her entire estate to her husband, H, adding that “in the event he dies before I do, at the same time that I do, or under circumstances as to make it doubtful who died first,” my estate is to go to my brother Melvin. H died about 38 hours after G’s death, both having died as a result of injuries sustained in an automobile accident.

Under subsection (b) [subsection (2)], G’s estate passes under the alternative devise to Melvin because H’s failure to survive G by 120 hours means that H is deemed to have predeceased G. The language in the governing instrument does not, under subsection (d)(1) [subsection (4)(a)], nullify the provision that causes H, because of his failure to survive G by 120 hours, to be deemed to have predeceased G. Although the governing instrument does contain language dealing with simultaneous deaths, that language is not operable under the facts of the case because H did not die before G, at the same time as G, or under circumstances as to make it doubtful who died first.

Note that subsection (d)(4) [subsection (4)(d)] provides that the 120-hour requirement of survival is inapplicable if “the application of this section to multiple governing instruments would result in an unintended failure or duplication of a disposition.” The application of this provision is illustrated by the following example.

Example. Pursuant to a common plan, H and W executed mutual wills with reciprocal provisions. Their intention was that a $50,000 charitable devise would be made on the death of the survivor. To that end, H’s will devised $50,000 to the charity if W predeceased him. W’s will devised $50,000 to the charity if H predeceased her. Subsequently, H and W were involved in a common accident. W survived H by 48 hours.

Were it not for subsection (d)(4) [subsection (4)(d)], not only would the charitable devise in W’s will be effective, because H in fact predeceased W, but the charitable devise in H’s will would also be effective, because W’s failure to survive H by 120 hours would result in her being deemed to have predeceased H. Because this would result in an unintended duplication of the $50,000 devise, subsection (d)(4) [subsection (4)(d)] provides that the 120-hour requirement of survival is inapplicable. Thus, only the $50,000 charitable devise in W’s will is effective.

Subsection (d)(4) [subsection (4)(d)] also renders the 120-hour requirement of survival inapplicable had H and W died in circumstances in which it could not be established by clear and convincing evidence that either survived the other. In such a case, an appropriate result might be to give effect to the common plan by paying half of the intended $50,000 devise from H’s estate and half from W’s estate.

ERISA Preemption of State Law . The Employee Retirement Income Security Act of 1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. See the Comment to Section 2-804 for a discussion of the ERISA preemption question.

Revision of Uniform Simultaneous Death Act. The freestanding Uniform Simultaneous Death Act (USDA) was revised in 1991 in accordance with the revisions of this section. States that enact Sections 2-104 and 2-702 need not enact the USDA as revised in 1991 and should repeal the original version of the USDA if previously enacted in the state.

Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions,” 55 Alb. L. Rev. 1091 (1992).

DECISIONS UNDER PRIOR LAW

Predeceased Devisee.

If the devisee predeceases the testator, the devise fails and becomes part of the residue. Jordan v. Anderson, 421 N.W.2d 816, 1988 N.D. LEXIS 82 (N.D. 1988).

30.1-09.1-03. (2-703) Choice of law as to meaning and effect of governing instrument.

The meaning and legal effect of a governing instrument is determined by the local law of the state selected by the transferor in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in chapter 30.1-05, the provisions relating to exempt property and allowances described in chapter 30.1-07, or any other public policy of this state otherwise applicable to the disposition.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Editorial Board Comment

Purpose and Scope of Revisions. The scope of this section is expanded to cover all governing instruments, not j wills. As revised, this section enables the law of a particular state to be selected in the governing instrument for purposes of interpreting the instrument without regard to the location of property covered thereby. So long as local public policy is accommodated, the section should be accepted as necessary and desirable.

Cross Reference. Choice of law rules regarding formal validity of a will are in Section 2-506 [N.D.C.C. § 30.1-08-06]. See also Sections 3-202 [N.D.C.C. § 30.1-13-02] and 3-408 [N.D.C.C. § 30.1-15-08].

Cross-References.

Choice of law as to execution, see N.D.C.C. § 30.1-08-06.

DECISIONS UNDER PRIOR LAW

Designation by Decedent’s Will.

The law of a state designated by the decedent’s will should control the effect of the will. In re Estate of Burshiem, 483 N.W.2d 175, 1992 N.D. LEXIS 73 (N.D. 1992).

Choice of Law.

That the validity and interpretation of a will relating to personal property was to be governed by laws of testator’s domicile was a long-established rule. Penfield v. Tower, 1 N.D. 216, 46 N.W. 413, 1890 N.D. LEXIS 27 (N.D. 1890).

The provisions of a will relating to personal property situated in this state had to be considered according to law of domicile of testator at time of his death. Penfield v. Tower, 1 N.D. 216, 46 N.W. 413, 1890 N.D. LEXIS 27 (N.D. 1890); Crandell v. Barker, 8 N.D. 263, 78 N.W. 347, 1898 N.D. LEXIS 53 (N.D. 1898); Knox v. Barker, 8 N.D. 272, 78 N.W. 352, 1898 N.D. LEXIS 54 (N.D. 1898).

Collateral References.

Wills 70, 436.

16 Am Jur 2d Conflict of Laws §§ 79-83.

95 C.J.S. Wills, § 196; 96 C.J.S. Wills, § 840.

30.1-09.1-04. (2-704) Power of appointment — Meaning of specific reference requirement.

If a governing instrument creating a power of appointment expressly requires that the power be exercised by a reference, an express reference, or a specific reference, to the power or its source, it is presumed that the donor’s intention, in requiring that the donee exercise the power by making reference to the particular power or to the creating instrument, was to prevent an inadvertent exercise of the power.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Editorial Board Comment

Rationale of New Section. In the creation of powers of appointment, it has become common estate-planning practice to require that the donee of the power can exercise the power only by making reference (or express or specific reference) to it. The question of whether the donee has made a sufficiently specific reference is much litigated. The precise question often is whether a so-called blanket-exercise clause (also called a blending clause)—a clause referring to “any property over which I have a power of appointment”—constitutes a sufficient reference to a particular power to exercise that power. E.g., First National Bank v. Walker, 607 S.W.2d 469 (Tenn. 1980), and cases cited therein.

Section 2-704 [this section] sets forth the presumption that the donor’s purpose in imposing a reference requirement was to prevent an inadvertent exercise of the power by the donee. Under this section, mere use by the donee of a blanket-exercise clause would be ineffective to exercise the power because such a clause would not make a sufficient reference to the particular power. If, however, it could be shown that the donee had knowledge of and intended to exercise the power, the blanket-exercise clause would be sufficient to exercise the power, unless the presumption of this section is overcome. Under Section 2-701 [N.D.C.C. § 30.1-09.1-01], the presumption of this section would be overcome if it could be shown that the donor’s intention was not merely to prevent an inadvertent exercise of the power but was to prevent any exercise of the power, intentional or inadvertent, that failed to identify in explicit terms the specific power or the creating instrument.

Reference. See Langbein & Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?,” 130 U. Pa. L. Rev. 521, 583 n.223 (1982), suggesting that a donee’s will that omits a sufficiently specific reference to a particular power can be reformed to include the necessary reference if it can be shown by clear and convincing evidence that the omission was caused by a scrivener’s mistake. This approach is not inconsistent with Section 2-704. See Sections 2-601 (and accompanying Comment) [N.D.C.C. § 30.1-09-03; however, North Dakota has retained an older version of this section]; 2-701 [N.D.C.C. § 30.1-09.1-01]. See also Motes/Henes Trust v. Mote, 297 Ark. 380, 761 S.W.2d 938 (1988) (donee’s intended exercise given effect despite use of blanket-exercise clause); In re Strobel, 149 Ariz. 213, 717 P.2d 892 (1986) (donee’s intended exercise given effect despite defective reference to power).

30.1-09.1-05. (2-705) Class gifts construed to accord with intestate succession — Exceptions.

In this section:
1. “Adoptee” has the meaning set forth in section 30.1-04-14.
2. “Child of assisted reproduction” has the meaning set forth in section 30.1-04-19.
3. “Distribution date” means the time when an immediate or a postponed class gift is to take effect in possession or enjoyment.
4. “Functioned as a parent of the adoptee” has the meaning set forth in section 30.1-04-14, substituting “adoptee” for “child” in that definition.
5. “Functioned as a parent of the child” has the meaning set forth in section 30.1-04-14.
6. “Genetic parent” has the meaning set forth in section 30.1-04-14.
7. “Gestational child” has the meaning set forth in section 30.1-04-20.
8. “Relative” has the meaning set forth in section 30.1-04-14.
A child of assisted reproduction, a gestational child, and except as otherwise provided in subsections 3 and 4, an adoptee and a child born to parents not married to each other, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship in a governing instrument which do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are construed to include both types of relationships. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by marriage unless:
1. When the governing instrument was executed, the class was then and foreseeably would be empty; or
2. The language or circumstances otherwise establish that relatives by marriage were intended to be included.
In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of that parent unless the parent, a relative of the genetic parent, or the spouse or surviving spouse of a relative of the genetic parent functioned as a parent of the child before the child reached eighteen years of age.
In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless:
1. The adoption took place before the adoptee reached eighteen years of age;
2. The adoptive parent was the adoptee’s stepparent or foster parent; or
3. The adoptive parent functioned as a parent of the adoptee before the adoptee reached eighteen years of age.
The following rules apply for purposes of the class-closing rules:
1. A child in utero at a particular time is treated as living at that time if the child lives one hundred twenty hours after birth.
2. If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent’s death, the child is treated as living on the distribution date if the child lives one hundred twenty hours after birth and was in utero not later than thirty-six months after the deceased parent’s death or born not later than forty-five months after the deceased parent’s death.
3. An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27; 2009, ch. 283, § 20.

Effective Date.

The 2009 amendment of this section by section 20 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment

This section facilitates a modern construction of gifts that identify the recipient by reference to a relationship to someone; usually these gifts will be class gifts. The rules of construction contained in this section are substantially consistent with the rules of construction contained in the Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.5 through 14.9. These sections of the Restatement apply to the treatment for class-gift purposes of an adoptee, a nonmarital child, a child of assisted reproduction, a gestational child, and a relative by marriage.

The rules set forth in this section are rules of construction, which under Section 2-701 [N.D.C.C. § 30.1-09.1-01] are controlling in the absence of a finding of a contrary intention. With two exceptions, Section 2-705 [this section] invokes the rules pertaining to intestate succession as rules of construction for interpreting terms of relationship in private instruments.

Subsection (a): Definitions [Subsection (1)]. With one exception, the definitions in subsection (a) [subsection (1)] rely on definitions contained in intestacy sections. The one exception is the definition of “distribution date,” which is relevant to the class-closing rules contained in subsection (g) [subsection (5)]. Distribution date is defined as the date when an immediate or postponed class gift takes effect in possession or enjoyment.

Subsection (b): Terms of Relationship. [Subsection (2)] Subsection (b) [Subsection (2)] provides that a class gift that uses a term of relationship to identify the takers includes a child of assisted reproduction and a gestational child, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships. As provided in subsection (g) [subsection (5)] , inclusion of a child of assisted reproduction or a gestational child in a class is subject to the class-closing rules. See Examples 11 through 15.

Subsection (b) [subsection (2)] also provides that, except as otherwise provided in subsections (e) and (f) [subsection (3) and (4)], an adoptee and a child born to parents who are not married to each other, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession regarding parent-child relationships. The subsection (e) [subsection (3)] exception relates to situations in which the transferor is not the genetic parent of the child. The subsection (f) [subsection (4)] exception relates to situations in which the transferor is not the adoptive parent of the adoptee. Consequently, if the transferor is the genetic or adoptive parent of the child, neither exception applies, and the class gift or other term of relationship is construed in accordance with the rules for intestate succession regarding parent-child relationships. As provided in subsection (g) [subsection (5)], inclusion of an adoptee or a child born to parents who are not married to each other in a class is subject to the class-closing rules. See Examples 9 and 10.

Subsection (c): Relatives by Marriage. [Subsection (2), 3rd sentence] Subsection (c) provides that terms of relationship that do not differentiate relationships by blood from those by marriage, such as “uncles”, “aunts”, “nieces”, or “nephews”, are construed to exclude relatives by marriage, unless (i) [subsection (2)(a)] when the governing instrument was executed, the class was then and foreseeably would be empty or (ii) [subsection (2)(b)] the language or circumstances otherwise establish that relatives by marriage were intended to be included. The Restatement (Third) of Property: Wills and Other Donative Transfers § 14.9 adopts a similar rule of construction. As recognized in both subsection (c) and the Restatement, there are situations in which the circumstances would tend to include a relative by marriage. As provided in subsection (g) [subsection (5)], inclusion of a relative by marriage in a class is subject to the class-closing rules.

One situation in which the circumstances would tend to establish an intent to include a relative by marriage is the situation in which, looking at the facts existing when the governing instrument was executed, the class was then and foreseeably would be empty unless the transferor intended to include relatives by marriage.

Example 1. G’s will devised property in trust, directing the trustee to pay the income in equal shares “to G’s children who are living on each income payment date and on the death of G’s last surviving child, to distribute the trust property to G’s issue then living, such issue to take per stirpes, and if no issue of G is then living, to distribute the trust property to the X Charity.” When G executed her will, she was past the usual childbearing age, had no children of her own, and was married to a man who had four children by a previous marriage. These children had lived with G and her husband for many years, but G had never adopted them. Under these circumstances, it is reasonable to conclude that when G referred to her “children” in her will she was referring to her stepchildren. Thus her stepchildren should be included in the presumptive meaning of the gift “to G’s children” and the issue of her stepchildren should be included in the presumptive meaning of the gift “to G’s issue.” If G, at the time she executed her will, had children of her own, in the absence of additional facts, G’s stepchildren should not be included in the presumptive meaning of the gift to “G’s children” or in the gift to “G’s issue.”

Example 2. G’s will devised property in trust, directing the trustee to pay the income to G’s wife W for life, and on her death, to distribute the trust property to “my grandchildren.” W had children by a prior marriage who were G’s stepchildren. G never had any children of his own and he never adopted his stepchildren. It is reasonable to conclude that under these circumstances G meant the children of his stepchildren when his will gave the future interest under the trust to G’s “grandchildren.”

Example 3. G’s will devised property in trust, directing the trustee to pay the income “to my daughter for life and on her death, to distribute the trust property to her children.” When G executed his will, his son had died, leaving surviving the son’s wife, G’s daughter-in-law, and two children. G had no daughter of his own. Under these circumstances, the conclusion is justified that G’s daughter-in-law is the “daughter” referred to in G’s will.

Another situation in which the circumstances would tend to establish an intent to include a relative by marriage is the case of reciprocal wills, as illustrated in Example 4, which is based on Martin v. Palmer, 1 S.W.3d 875 (Tex. Ct. App. 1999).

Example 4. G’s will devised her entire estate “to my husband if he survives me, but if not, to my nieces and nephews.” G’s husband H predeceased her. H’s will devised his entire estate “to my wife if she survives me, but if not, to my nieces and nephews.” Both G and H had nieces and nephews. In these circumstances, “my nieces and nephews” is construed to include G’s nieces and nephews by marriage. Were it otherwise, the combined estates of G and H would pass only to the nieces and nephews of the spouse who happened to survive.

Still another situation in which the circumstances would tend to establish an intent to include a relative by marriage is a case in which an ancestor participated in raising a relative by marriage other than a stepchild.

Example 5. G’s will devised property in trust, directing the trustee to pay the income in equal shares “to my nieces and nephews living on each income payment date until the death of the last survivor of my nieces and nephews, at which time the trust shall terminate and the trust property shall be distributed to the X Charity.” G’s wife W was deceased when G executed his will. W had one brother who predeceased her. G and W took the brother’s children, the wife’s nieces and nephews, into their home and raised them. G had one sister who predeceased him, and G and W were close to her children, G’s nieces and nephews. Under these circumstances, the conclusion is justified that the disposition “to my nieces and nephews” includes the children of W’s brother as well as the children of G’s sister.

The language of the disposition may also establish an intent to include relatives by marriage, as illustrated in Examples 6, 7, and 8.

Example 6. G’s will devised half of his estate to his wife W and half to “my children.” G had one child by a prior marriage, and W had two children by a prior marriage. G did not adopt his stepchildren. G’s relationship with his stepchildren was close, and he participated in raising them. The use of the plural “children” is a factor indicating that G intended to include his stepchildren in the class gift to his children.

Example 7. G’s will devised the residue of his estate to “my nieces and nephews named herein before.” G’s niece by marriage was referred to in two earlier provisions as “my niece.” The previous reference to her as “my niece” indicates that G intended to include her in the residuary devise.

Example 8. G’s will devised the residue of her estate “in twenty-five (25) separate equal shares, so that there shall be one (1) such share for each of my nieces and nephews who shall survive me, and one (1) such share for each of my nieces and nephews who shall not survive me but who shall have left a child or children surviving me.” G had 22 nieces and nephews by blood or adoption and three nieces and nephews by marriage. The reference to twenty-five nieces and nephews indicates that G intended to include her three nieces and nephews by marriage in the residuary devise.

Subsection (d): Half Blood Relatives. [Subsection (2), 2nd sentence] In providing that terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as “brothers”, “sisters”, “nieces”, or “nephews”, are construed to include both types of relationships, subsection (d) is consistent with the rules for intestate succession regarding parent-child relationships. See Section 2-107 [N.D.C.C. § 30.1-04-07] and the phrase “or either of them” in Section 2-103(3) and (4) [N.D.C.C. § 30.1-04-03(3) an (4)]. As provided in subsection (g) [subsection (5)], inclusion of a half blood relative in a class is subject to the class-closing rules.

Subsection (e): Transferor Not Genetic Parent. [Subsection (3)] The general theory of subsection (e) [subsection (3)] is that a transferor who is not the genetic parent of a child would want the child to be included in a class gift as a child of the genetic parent only if the genetic parent (or one or more of the specified relatives of the child’s genetic parent functioned as a parent of the child before the child reached the age of [18]. As provided in subsection (g) [subsection (5)], inclusion of a genetic child in a class is subject to the class-closing rules.

Example 9. G’s will created a trust, income to G’s son, A, for life, remainder in corpus to A’s descendants who survive A, by representation. A fathered a child, X; A and X’s mother, D, never married each other, and A never functioned as a parent of the child, nor did any of A’s relatives or spouses or surviving spouses of any of A’s relatives. D later married E; D and E raised X as a member of their household. Because neither A nor any of A’s specified relatives ever functioned as a parent of X, X would not be included as a member of the class of A’s descendants who take the corpus of G’s trust on A’s death.

If, however, A executed a will containing a devise to his children or designated his children as beneficiary of his life insurance policy, X would be included in the class. Under Section 2-117 [N.D.C.C. § 30.1-04-16], X would be A’s child for purposes of intestate succession. Subsection (c) [subsection (2), 3rd sentence] is inapplicable because the transferor, A, is the genetic parent.

Subsection (f): Transferor Not Adoptive Parent. [subsection (4)] The general theory of subsection (f) is that a transferor who is not the adoptive parent of an adoptee would want the child to be included in a class gift as a child of the adoptive parent only if (i) the adoption took place before the adoptee reached the age of [18]; (ii) the adoptive parent was the adoptee’s stepparent or foster parent; or (iii) the adoptive parent functioned as a parent of the adoptee before the adoptee reached the age of [18]. As provided in subsection (g), inclusion of an adoptee in a class is subject to the class-closing rules.

Example 10. G’s will created a trust, income to G’s daughter, A, for life, remainder in corpus to A’s descendants who survive A, by representation. A and A’s husband adopted a 47-year-old man, X. Because the adoption did not take place before X reached the age of [18], A was not X’s stepparent or foster parent, and A did not function as a parent of X before X reached the age of [18]. X would not be included as a member of the class of A’s descendants who take the corpus of G’s trust on A’s death.

If, however, A executed a will containing a devise to her children or designated her children as beneficiary of her life insurance policy, X would be included in the class. Under Section 2-118 [N.D.C.C. § 30.1-04-17], X would be A’s child for purposes of intestate succession. Subsection (d) [subsection (2), 2nd sentence] is inapplicable because the transferor, A, is an adoptive parent.

Subsection (g): Class-Closing Rules [Subsection (5)]. In order for an individual to be a taker under a class gift that uses a term of relationship to identify the class members, the individual must (i) qualify as a class member under subsection (b), (c), (d), (e), or (f) [subsection (2), (3), or (4)] and (ii) not be excluded by the class-closing rules. For an exposition of the class-closing rules, see Restatement (Third) of Property: Wills and Other Donative Transfers § 15.1. Section 15.1 provides that, “unless the language or circumstances establish that the transferor had a different intention, a class gift that has not yet closed physiologically closes to future entrants on the distribution date if a beneficiary of the class gift is then entitled to distribution.”

Subsection (g)(1) [Subsection (5)(a)]: Child in Utero. Subsection (g)(1) codifies the well-accepted rule that a child in utero at a particular time is treated as living at that time if the child lives 120 hours after birth.

Subsection (g)(2) [Subsection (5)(b)]: Children of Assisted Reproduction and Gestational Children; Class Gift in Which Distribution Date Arises At Deceased Parent’s Death. Subsection (g)(2) changes the class-closing rules in one respect. If a child of assisted reproduction (as defined in Section 2-120 [N.D.C.C. § 30.1-04-19]) or a gestational child (as defined in Section 2-121 [N.D.C.C. § 30.1-04-20]) is conceived posthumously, and if the distribution date arises at the deceased parent’s death, then the child is treated as living on the distribution date if the child lives 120 hours after birth and was either (i) in utero no later than 36 months after the deceased parent’s death or (ii) born no later than 45 months after the deceased parent’s death.

The 36-month period in subsection (g)(2) is designed to allow a surviving spouse or partner a period of grieving, time to make up his or her mind about whether to go forward with assisted reproduction, and a reasonable allowance for unsuccessful attempts to achieve a pregnancy. The 36-month period also coincides with Section 3-1006 [N.D.C.C. § 30.1-21-06], under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the child is in utero will ordinarily be evidenced by medical records. In some cases, however, the procedure is not performed in a medical facility, and so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a normal period of pregnancy.

Example 11. G, a member of the armed forces, executed a military will under 10 U.S.C. § 1044d shortly before being deployed to a war zone. G’s will devised “90 percent of my estate to my wife W and 10 percent of my estate to my children.” G also left frozen sperm at a sperm bank in case he should be killed in action. G consented to be treated as the parent of the child within the meaning of § 2-120(f) [N.D.C.C. § 30.1-04-19]. G was killed in action. After G’s death, W decided to become inseminated with his frozen sperm so she could have his child. If the child so produced was either (i) in utero within 36 months after G’s death or (ii) born within 45 months after G’s death, and if the child lived 120 hours after birth, the child is treated as living at G’s death and is included in the class.

Example 12. G, a member of the armed forces, executed a military will under 10 U.S.C. § 1044d shortly before being deployed to a war zone. G’s will devised “90 percent of my estate to my husband H and 10 percent of my estate to my issue by representation.” G also left frozen embryos in case she should be killed in action. G consented to be the parent of the child within the meaning of § 2-120(f) [N.D.C.C. § 30.1-04-19]. G was killed in action. After G’s death, H arranged for the embryos to be implanted in the uterus of a gestational carrier. If the child so produced was either (i) in utero within 36 months after G’s death or (ii) born within 45 months after the G’s death, and if the child lived 120 hours after birth, the child is treated as living at G’s death and is included in the class.

Example 13. The will of G’s mother created a testamentary trust, directing the trustee to pay the income to G for life, then to distribute the trust principal to G’s children. When G’s mother died, G was married but had no children. Shortly after being diagnosed with leukemia, G feared that he would be rendered infertile by the disease or by the treatment for the disease, so he left frozen sperm at a sperm bank. G consented to be the parent of the child within the meaning of § 2-120(f) [N.D.C.C. § 30.1-04-19]. After G’s death, G’s widow decided to become inseminated with his frozen sperm so she could have his child. If the child so produced was either (i) in utero within 36 months after G’s death or (ii) born within 45 months after the G’s death, and if the child lived 120 hours after birth, the child is treated as living at G’s death and is included in the class under the rule of convenience.

Subsection (g)(2) [subsection (5)(b)] Inapplicable Unless Child of Assisted Reproduction or Gestational Child is Conceived Posthumously and Distribution Date Arises At Deceased Parent’s Death. Subsection (g)(2) [subsection (5)(b)] only applies if a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date arises at the deceased parent’s death. Subsection (g)(2) does not apply if a child of assisted reproduction or a gestational child is not conceived posthumously. It also does not apply if the 201 distribution date arises before or after the deceased parent’s death. In cases to which subsection (g)(2) does not apply, the ordinary class-closing rules apply. For purposes of the ordinary class-closing rules, subsection (g)(1) [subsection (5)(a)] provides that a child in utero at a particular time is treated as living at that time if the child lives 120 hours after birth.

This means, for example, that, with respect to a child of assisted reproduction or a gestational child, a class gift in which the distribution date arises after the deceased parent’s death is not limited to a child who is born before or in utero at the deceased parent’s death or, in the case of posthumous conception, either (i) in utero within 36 months after the deceased parent’s death or (ii) born within 45 months after the deceased parent’s death. The ordinary class-closing rules would only exclude a child of assisted reproduction or a gestational child if the child was not yet born or in utero on the distribution date (or who was then in utero but who failed to live 120 hours after birth).

A case that reached the same result that would be reached under this section is In re Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007). In that case, two children (who were conceived posthumously and were born to a deceased father’s widow around three and five years after his death) were included in class gifts to the deceased father’s “issue” or “descendants”. The children would be included under this section because (i) the deceased father signed a record that would satisfy Section 2-120(f)(1) [N.D.C.C. § 30.1-04-19], (ii) the distribution dates arose after the deceased father’s death, and (iii) the children were living on the distribution dates, thus satisfying subsection (g)(1).

Example 14. G created a revocable inter vivos trust shortly before his death. The trustee was directed to pay the income to G for life, then “to pay the income to my wife, W, for life, then to distribute the trust principal by representation to my descendants who survive W.” When G died, G and W had no children. Shortly before G’s death and after being diagnosed with leukemia, G feared that he would be rendered infertile by the disease or by the treatment for the disease, so he left frozen sperm at a sperm bank. G consented to be the parent of the child within the meaning of § 2-120(f) [N.D.C.C. § 30.1-04-19]. After G’s death, W decided to become inseminated with G’s frozen sperm so that she could have his child. The child, X, was born five years after G’s death. W raised X. Upon W’s death many years later, X was a grown adult. X is entitled to receive the trust principal, because a parent-child relationship between G and X existed under § 2-120(f) [N.D.C.C. § 30.1-04-19] and X was living on the distribution date.

Example 15. The will of G’s mother created a testamentary trust, directing the trustee to pay the income to G for life, then “to pay the income by representation to G’s issue from time to time living, and at the death of G’s last surviving child, to distribute the trust principal by representation to G’s descendants who survive G’s last surviving child.” When G’s mother died, G was married but had no children. Shortly after being diagnosed with leukemia, G feared that he would be rendered infertile by the disease or by the treatment for the disease, so he left frozen sperm at a sperm bank. G consented to be the parent of the child within the meaning of § 2-120(f) [N.D.C.C. § 30.1-04-19]. After G’s death, G’s widow decided to become inseminated with his frozen sperm so she could have his child. If the child so produced was either (i) in utero within 36 months after G’s death or (ii) born within 45 months after the G’s death, and if the child lived 120 hours after birth, the child is treated as living at G’s death and is included in the class-gift of income under the rule of convenience. If G’s widow later decides to use his frozen sperm to have another child or children, those children would be included in the class-gift of income (assuming they live 120 hours after birth) even if they were not in utero within 36 months after G’s death or born within 45 months after the G’s death. The reason is that an income interest in class-gift form is treated as creating separate class gifts in which the distribution date is the time of payment of each subsequent income payment. See Restatement (Third) of Property: Wills and Other Donative Transfers § 15.1 cmt. p. Regarding the remainder interest in principal that takes effect in possession on the death of G’s last living child, the issue of the posthumously conceived children who are then living would take the trust principal.

Subsection (g)(3) [Subsection (5)(c)]. For purposes of the class-closing rules, an individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted. An individual is “in the process of being adopted” if a legal proceeding to adopt the individual had been filed before the class closed. However, the phrase “in the process of being adopted” is not intended to be limited to the filing of a legal proceeding, but is intended to grant flexibility to find on a case by case basis that the process commenced earlier.

Notes to Decisions

Functioned As A Parent.

30.1-09.1-06. (2-706) Life insurance — Retirement plan — Account with payable on death designation — Transfer-on-death registration — Deceased beneficiary.

In this section:
1. “Alternative beneficiary designation” means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or any other form.
2. “Beneficiary” means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and includes a class member if the beneficiary designation is in the form of a class gift and includes an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account.
3. “Beneficiary designation” includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift.
4. “Class member” includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had the individual survived the decedent.
5. “Descendant of a grandparent”, as used in subsection 2, means an individual who qualifies as a descendant of a grandparent of the decedent under the rules of construction applicable to a class gift created in the decedent’s beneficiary designation if the beneficiary designation is in the form of a class gift or rules for intestate succession if the beneficiary designation is not in the form of a class gift.
6. “Descendants”, as used in the phrase “surviving descendants” of a deceased beneficiary or class member in subdivisions a and b of subsection 2, mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the beneficiary designation.
7. “Stepchild” means a child of the decedent’s surviving, deceased, or former spouse, and not of the decedent.
8. “Surviving” in the phrase “surviving beneficiary” or “surviving descendant” means a beneficiary or a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section 30.1-09.1-02.
If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a grandparent, or a stepchild of the decedent, the following apply:
1. Except as provided in subdivision d, if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent.
2. Except as provided in subdivision d, if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, “family”, or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this subdivision, “deceased beneficiary” means a class member who failed to survive the decedent and left one or more surviving descendants.
3. For purposes of section 30.1-09.1-01, words of survivorship, such as in a beneficiary designation to an individual “if the individual survives me”, or in a beneficiary designation to “my surviving children”, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.
4. If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by subdivision a or b, the substitute gift is superseded by the alternative beneficiary designation if:
  1. The alternative beneficiary designation is in the form of a class gift and one or more members of the class is entitled to take; or
  2. The alternative beneficiary designation is not in the form of a class gift and the expressly designated beneficiary of the alternative beneficiary designation is entitled to take.
If, under subsection 2, substitute gifts are created and not superseded with respect to more than one beneficiary designation, and the beneficiary designations are alternative beneficiary designations, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
1. Except as provided in subdivision b, the property passes under the primary substitute gift.
2. If there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
3. In this subsection:
  1. “Primary beneficiary designation” means the beneficiary designation that would have taken effect had all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent.
  2. “Primary substitute gift” means the substitute gift created with respect to the primary beneficiary designation.
  3. “Younger-generation beneficiary designation” means a beneficiary designation that is to a descendant of a beneficiary of the primary beneficiary designation, is an alternative beneficiary designation with respect to the primary beneficiary designation, is a beneficiary designation for which a substitute gift is created, and would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation.
  4. “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation beneficiary designation.
1. A payer is protected from liability in making payments under the terms of the beneficiary designation until the payer has received written notice of a claim to a substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payer, but not the recipient, from all claims for the amounts paid. A payer is liable for a payment made after the payer has received written notice of the claim. A recipient is liable for a payment received, whether or not written notice of the claim is given.
2. The written notice of the claim must be mailed to the payer’s main office or home by registered mail, return receipt requested, or served upon the payer in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payer may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payer from all claims for the amounts paid.
1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item or property or benefit, to the person who is entitled to it under this section.
2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 13, 14, 27; 2009, ch. 283, § 21.

Effective Date.

The 2009 amendment of this section by section 21 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment

Purpose. This section provides an antilapse statute for “beneficiary designations” under which the beneficiary must survive the decedent. The term “beneficiary designation” is defined in Section 1-201 [N.D.C.C. § 30.1-01-06] as “a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death”.

The terms of this section parallel those of Section 2-603 [N.D.C.C. § 30.1-09-05], except that the provisions relating to payor protection and personal liability of recipients have been added. The Comment to Section 2-603 contains an elaborate exposition of Section 2-603, together with examples illustrating its application. That Comment, in addition to the examples given below, should aid understanding of Section 2-706 [this section]. For a discussion of the reasons why Section 2-706 should not be preempted by federal law with respect to retirement plans covered by ERISA, see the Comment to Section 2-804 [N.D.C.C. § 30.1-10-04]. See also Rayho, Note, 106 Mich. L. Rev. 373 (2007).

Example 1. G is the owner of a life-insurance policy. When the policy was taken out, G was married to S; G and S had two young children. A and B. G died 45 years after the policy was taken out. S predeceased G, A survived G by 120 hours and B predeceased G leaving three children (X, Y, and Z) who survived G by 120 hours. G’s policy names S as the primary beneficiary of the policy, but because S predeceased G, the secondary (contingent) beneficiary designation became operative. The secondary (contingent) beneficiary designation of G’s policy states: “equally to the then living children born of the marriage of G and S”.

The printed terms of G’s policy provide:

“If two or more persons are designated as beneficiary, the beneficiary will be the designated person or persons who survive the Insured, and if more than one survive, they will share equally”.

Solution: The printed clause constitutes an “alternative beneficiary designation” for purposes of subsection (b)(4), which supersedes the substitute gift to B’s descendants created by subsection (b)(2). A is entitled to all of the proceeds of the policy.

Example 2. The facts are the same as in Example 1, except that G’s policy names “A and B” as secondary (contingent) beneficiaries. The printed terms of the policy provide:

“If any designated Beneficiary predeceases the Insured, the interest of such Beneficiary will terminate and shall be shared equally by such of the Beneficiaries as survive the Insured”.

Solution: The printed clause constitutes an “alternative beneficiary designation” for purposes of subsection (b)(4), which supersedes the substitute gift to B’s descendants created by subsection (b)(1). A is entitled to all of the proceeds of the policy.

Example 3. The facts are the same as Examples 1 or 2, except that the printed terms of the policy do not contain either quoted clause or a similar one.

Solution: Under Section 2-706, A would be entitled to half of the policy proceeds and X, Y, and Z would divide the other half equally.

Example 4. The facts are the same as Example 3, except that the policy has a beneficiary designation that provides that, if the adjacent box is checked, the share of any deceased beneficiary shall be paid “in one sum and in equal shares to the children of that beneficiary who survive”. G did not check the box adjacent to this option.

Solution: G’s deliberate decision not to check the box providing for the share of any deceased beneficiary to go to that beneficiary’s children constitutes a clear indication of a contrary intention for purposes of Section 2-701. A would be entitled to all of the proceeds of the policy.

Example 5. G’s life-insurance policy names her niece, A, as primary beneficiary, and provides that if A does not survive her, the proceeds are to go to her niece B, as contingent beneficiary. A predeceased G, leaving children who survived G by 120 hours, B survived G by 120 hours.

Solution: The contingent beneficiary designation constitutes an “alternative beneficiary designation” for purposes of subsection (b)(4) [subsection (2)(d)], which supersedes the substitute gift to A’s descendants created by subsection (b)(1) [subsection (2)(a)]. The proceeds go to B, not to A’s children.

Example 6. G’s life-insurance policy names her niece, A, as primary beneficiary, and provides that if A does not survive her, the proceeds are to go to her niece B, as contingent beneficiary. The printed terms of the policy specifically state that if neither the primary nor secondary beneficiaries survive the policyholder, the proceeds are payable to the policyholder’s estate. A predeceased G, leaving children who survived G by 120 hours, B also predeceased G, leaving children who survived G by 120 hours.

Solution: The second contingent beneficiary designation to G’s estate constitutes an “alternative beneficiary designation” for purposes of subsection (b)(4), which supersedes the substitute gifts to A’s and B’s descendants created by subsection (b)(1). The proceeds go to G’s estate, not to A’s children or to B’s children.

References. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions”, 55 Alb.L.Rev. 1091 (1992). See also Restatement (Third) of Property: Wills and Other Donative Transfers § 5.5 cmt. p (1999); § 7.2 cmt. k (2003); Lebolt, “Making the Best of Egelhoff: Federal Common Law for ERISA-Preempted Beneficiary Designations”, 28 J. Pension Planning & Compliance 29 (Fall 2002); Gallanis, “ERISA and the Law of Succession”, 60 Ohio St. L.J. 185 (2004); Rayho, Note, 106 Mich. L. Rev. 373 (2007).

Technical Amendments. Technical amendments in 1993 added language specifically excluding joint and survivorship accounts and joint tenancies with the right of survivorship; this amendment is consistent with the original purpose of the section. Technical amendments in 2008 added definitions of “descendant of a grandparent” and “descendants” as used in subsections (b)(1) and (2) [subsections (2)(a) and (b)] and clarified subsection (b)(4) [subsection (2)(d)]. The two new definitions resolve questions of status previously unanswered. The technical amendment of subsection (b)(4) makes that subsection easier to understand but does not change its substance.

30.1-09.1-07. (2-707) Survivorship with respect to future interests under the terms of a trust — Substitute takers.

In this section:
1. “Alternative future interest” means to an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause.
2. “Beneficiary” means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.
3. “Class member” includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had the individual survived the distribution date.
4. “Descendants”, in the phrase “surviving descendants” of a deceased beneficiary or class member in subdivisions a and b of subsection 2, mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the trust.
5. “Distribution date”, with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
6. “Future interest” includes an alternative future interest and a future interest in the form of a class gift.
7. “Future interest under the terms of a trust” means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.
8. “Surviving” in the phrase “surviving beneficiary” or “surviving descendant” means a beneficiary or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 30.1-09.1-02.
A future interest under the terms of a trust is contingent on the beneficiary’s surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following apply:
1. Except as provided in subdivision d, if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
2. Except as provided in subdivision d, if the future interest is in the form of a class gift, other than a future interest to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, or “family”, or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this subdivision, “deceased beneficiary” means a class member who failed to survive the distribution date and left one or more surviving descendants.
3. For purposes of section 30.1-09.1-01, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form.
4. If a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by subdivision a or b, the substitute gift is superseded by the alternative future interest if:
  1. The alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or
  2. The alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
If, under subsection 2, substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
1. Except as provided in subdivision b, the property passes under the primary substitute gift.
2. If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
3. In this subsection:
  1. “Primary future interest” means the future interest that would have taken effect had all the deceased beneficiaries of the alternative future interest who left surviving descendants survived the distribution date.
  2. “Primary substitute gift” means the substitute gift created with respect to the primary future interest.
  3. “Younger-generation future interest” means a future interest that is to a descendant of a beneficiary of the primary future interest, is an alternative future interest with respect to the primary future interest, is a future interest for which a substitute gift is created, and would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary of beneficiaries of the primary future interest.
  4. “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation future interest.
Except as provided in subsection 5, if, after the application of subsections 2 and 3, there is no surviving taker, the property passes in the following order:
1. If the trust was created in a nonresiduary devise in the transferor’s will or in a codicil to the transferor’s will, the property passes under the residuary clause in the transferor’s will. For purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust.
2. If no taker is produced by the application of subdivision a, the property passes to the transferor’s heirs under section 30.1-09.1-11.
If, after the application of subsections 2 and 3, there is no surviving taker and if the future interest was created by the exercise of a power of appointment:
1. The property passes under the donor’s gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and
2. If no taker is produced by the application of subdivision a, the property passes as provided in subsection 4. For purposes of subsection 4, “transferor” means the donor if the power was a nongeneral power and means the donee if the power was a general power.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 15, 27; 2009, ch. 283, § 22.

Effective Date.

The 2009 amendment of this section by section 22 of chapter 283, S.L. 2009 became effective August 1, 2009.

Editorial Board Comment

Rationale. The objective of this section is to project the antilapse idea into the area of future interests, thus preventing disinheritance of a descending line that has one or more members living on the distribution date and preventing a share from passing down a descending line that has died out by the distribution date.

Scope. This section applies only to future interests under the terms of a trust. For shorthand purposes, references in this Comment to the term “future interest” refer to a future interest under the terms of a trust. The rationale for restricting this section to future interests under the terms of a trust is that legal life estates in land, followed by indefeasibly vested remainder interests, are still created in some localities, often with respect to farmland. In such cases, the legal life tenant and the person holding the remainder interest can, together, give good title in the sale of the land. If the antilapse idea were injected into this type of situation, the ability of the parties to sell the land would be impaired if not destroyed because the antilapse idea would, in effect, create a contingent substitute remainder interest in the present and future descendants of the person holding the remainder interest.

Structure. The structure of this section substantially parallels the structure of the regular antilapse statute, Section 2-603 [N.D.C.C. § 30.1-09-05; however, North Dakota has not adopted the current version], and the antilapse-type statute relating to beneficiary designations, Section 2-706 [N.D.C.C. § 30.1-09.1-06].

Common-law Background. At common law, conditions of survivorship are not implied with respect to future interests. The rule against implying a condition of survivorship applies whether the future interest is created in trust or otherwise and whether the future interest is or is not in the form of a class gift. The only exception, where a condition of survivorship is implied at common law, is in the case of a multiple-generation class gift. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3, 15.4 (2008). For example, in the simple case of a trust, “income to husband, A, for life, remainder to daughter, B”, B’s interest is not defeated at common law if she predeceases A; B’s interest would pass through her estate to her successors in interest (probably either her residuary legatees or heirs: see Waggoner, “The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts”, 94 Mich. L. Rev. 2309, 2331-32 (1996)), who would become entitled to possession when A died. If any of B’s successors in interest died before A, the interest held by that deceased successor in interest would likewise pass through his or her estate to his or her successors in interest; and so on. Thus, a benefit of a statutory provision reversing the common-law rule and providing substitute takers is that it prevents cumbersome and costly distributions to and through the estates of deceased beneficiaries of future interests, who may have died long before the distribution date.

Subsection (b) [Subsection (2)]. Subsection (b) [Subsection (2)] imposes a condition of survivorship on future interests to the distribution date—defined as the time when the future interest is to take effect in possession or enjoyment. The requirement of survivorship imposed by subsection (b) applies whether or not the deceased beneficiary leaves descendants who survive the distribution date and are takers of a substitute gift provided by subsections (b)(1) or (b)(2) [subsections (2)(a) or (2)(b)]. Imposing a condition of survivorship on a future interest when the deceased beneficiary did not leave descendants who survive the distribution date prevents a share from passing down a descending line that has died out by the distribution date. Imposing a condition of survivorship on a future interest when the deceased beneficiary did leave descendants who survive the distribution date, and providing a substitute gift to those descendants, prevents disinheritance of a descending line that has one or more living members on the distribution date.

The 120-hour Survivorship Period. In effect, the requirement of survival of the distribution date means survival of the 120-hour period following the distribution date. This is because, under Section 2-702(a) [N.D.C.C. § 30.1-09.1-02(1)], “an individual who is not established to have survived an event … by 120 hours is deemed to have predeceased the event”. As made clear by subsection (a)(8) [subsection (1)(h)], for the purposes of section 2-707 [N.D.C.C. § 30.1-09.1-07], the “event” to which section 2-702(a) [N.D.C.C. § 30.1-09.1-02(1)] relates is the distribution date.

Note that the “distribution date” need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day, such as the time of death of an income beneficiary.

References in Section 2-707 and in this Comment to survival of the distribution date should be understood as referring to survival of the distribution date by 120 hours.

Ambiguous Survivorship Language. Subsection (b) [Subsection (2)] serves another purpose. It resolves a frequently litigated question arising from ambiguous language of survivorship, such as in a trust, “income to A for life, remainder in corpus to my surviving children”. Although some case law interprets the word “surviving” as merely requiring survival of the testator (e.g., Nass’ Estate, 182 A. 401 (Pa.1936)), the predominant position at common law interprets “surviving” as requiring survival of the life tenant, A. Hawke v. Lodge, 77 A. 1090 (Del.Ch.1910); Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3 cmt. f; 15.4 cmt. g (2008). The first sentence of subsection (b) [subsection (2)], in conjunction with paragraph (3) [subsection (2)(c)], codifies the predominant common-law/Restatement position that survival relates to the distribution date.

The first sentence of subsection (b), in combination with paragraph (3), imposes a condition of survivorship to the distribution date (the time of possession or enjoyment) even when an express condition of survivorship to an earlier time has been imposed. Thus, in a trust like “income to A for life, remainder in corpus to B, but if B predeceases A, to B’s children who survive B”, the first sentence of subsection (b) combined with paragraph (3) requires B’s children to survive (by 120 hours) the death of the income beneficiary, A.

Rule of Construction. Note that Section 2-707 is a rule of construction. It is qualified by the rule set forth in Section 2-701 [N.D.C.C. § 30.1-09.1-01], and thus it yields to a finding of a contrary intention. Consequently, in trusts like “income to A for life, remainder in corpus to B whether or not B survives A”, or “income to A for life, remainder in corpus to B or B’s estate”, this section would not apply and, should B predecease A, B’s future interest would pass through B’s estate to B’s successors in interest, who would become entitled to possession or enjoyment at A’s death.

Classification. Subsection (b) renders a future interest “contingent” on the beneficiary’s survival of the distribution date. As a result, future interests are “nonvested” and subject to the Rule Against Perpetuities. To prevent an injustice from resulting because of this, the Uniform Statutory Rule Against Perpetuities, which has a wait-and-see element, is incorporated into the Code as Part 9.

Substitute Gifts. Section 2-707 not only imposes a condition of survivorship to the distribution date; like its antilapse counterparts, Sections 2-603 [N.D.C.C. § 30.1-09-05; however, North Dakota has not adopted the current version] and 2-706 [N.D.C.C. § 30.1-09.1-06], it provides substitute takers in cases of a beneficiary’s failure to survive the distribution date.

The statutory substitute gift is divided among the devisee’s descendants “by representation”, a phrase defined in Section 2-709(b) [N.D.C.C. § 30.1-09.1-09(2)]. A technical amendment adopted in 2008 added subsection (a)(4) [subsection (1)(d)], defining the term “descendants”.

Subsection (b)(1) [Subsection (2)(a)]—Future Interests Not in the Form of a Class Gift. Subsection (b)(1) applies to non-class gifts, such as the “income to A for life, remainder in corpus to B” trust discussed above. If B predeceases A, subsection (b)(1) creates a substitute gift with respect to B’s future 214 interest; the substitute gift is to B’s descendants who survive A (by 120 hours).

Subsection (b)(2) [Subsection (2)(b)]—Class Gift Future Interests. Subsection (b)(2) applies to single-generation class gifts, such as in a trust “income to A for life, remainder in corpus to A’s children”. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.1, 14.2 (2008). Suppose that A had two children, X and Y. X predeceases A; Y survives A. Subsection (b)(2) creates a substitute gift with respect to any of A’s children who fail to survive A (by 120 hours) leaving descendants who survive A (by 120 hours). Thus, if X left descendants who survived A (by 120 hours), those descendants would take X’s share; if X left no descendants who survived A (by 120 hours), Y would take it all.

Subsection (b)(2) [subsection (2)(b)] does not apply to future interests to multiple-generation classes such as “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “distributees”, “relatives”, “family”, or the like. The reason is that these types of class gifts have their own internal systems of representation, and so the substitute gift provided by subsection (b)(1) would be out of place with respect to these types of future interests. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.3, 14.4, 15.3 (2008). The first sentence of subsection (b) [subsection (2)] and subsection (d) [subsection (4)] do apply, however. For example, suppose a nonresiduary devise “to A for life, remainder to A’s issue, by representation”. If A leaves issue surviving him (by 120 hours), they take. But if A leaves no issue surviving him (by 120 hours), the testator’s residuary devisees are the takers.

Subsection (b)(4) [Subsection (2)(d)]. Subsection (b)(4), as clarified by technical amendment in 2008 [North Dakota did not adopt these technical amendments], provides that, if a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift is superseded by the alternative future interest if: (A) the alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or (B) the alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment. Consider, for example, a trust under which the income is to be paid to A for life, remainder in corpus to B if B survives A, but if not to C if C survives A. If B predeceases A, leaving descendants who survive A (by 120 hours), subsection (b)(1) creates a substitute gift to those descendants. But, if C survives A (by 120 hours), the alternative future interest in C supersedes the substitute gift to B’s descendants. Upon A’s death, the trust corpus passes to C.

Subsection (c) [Subsection (3)]. Subsection (c) is necessary because there can be cases in which subsections (b)(1)or (b)(2) [subsections (2)(a) or (2)(b)] create substitute gifts with respect to two or more alternative future interests, and those substitute gifts are not superseded under the terms of subsection (b)(4) [subsection (2)(d)]. Subsection (c) provides the tie-breaking mechanism for such situations.

The initial step is to determine which of the alternative future interests would take effect had all the beneficiaries themselves survived the distribution date (by 120 hours). In subsection (c), this future interest is called the “primary future interest”. Unless subsection (c)(2) [subsection (3)(b)] applies, subsection (c)(1) [subsection (3)(a)] provides that the property passes under substitute gift created with respect to the primary future interest. This substitute gift is called the “primary substitute gift”. Thus, the property goes to the descendants of the beneficiary or beneficiaries of the primary future interest.

Subsection (c)(2) [subsection (3)(b)] provides an exception to this rule. Under subsection (c)(2), the property does not pass under the primary substitute gift if there is a “younger-generation future interest”—defined as a future interest that (i) is to a descendant of a beneficiary of the primary future interest, (ii) is an alternative future interest with respect to the primary future interest, (iii) is a future interest for which a substitute gift is created, and (iv) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary or beneficiaries of the primary future interest. If there is a younger-generation future interest, the property passes under the “younger-generation substitute gift”—defined as the substitute gift created with respect to the younger-generation future interest.

Subsection (d) [Subsection (4)]. Since it is possible that, after the application of subsections (b) and (c) [subsections (2) and (3)], there are no substitute gifts, a back-stop set of substitute takers is provided in subsection (d) [subsection (4)]—the transferor’s residuary devisees or heirs. Note that the transferor’s residuary clause is treated as creating a future interest and, as such, is subject to this section. Note also that the meaning of the back-stop gift to the transferor’s heirs is governed by Section 2-711 [N.D.C.C. § 30.1-09.1-11], under which the gift is to the transferor’s heirs determined as if the transferor died when A died. Thus there will always be a set of substitute takers, even if it turns out to be the State. If the transferor’s surviving spouse has remarried after the transferor’s death but before A’s death, he or she would not be a taker under this provision.

Examples. The application of Section 2-707 is illustrated by the following examples. Note that, in each example, the “distribution date” is the time of the income beneficiary’s death. Assume, in each example, that an individual who is described as having “survived” the income beneficiary’s death survived the income beneficiary’s death by 120 hours or more.

Example 1. A nonresiduary devise in G’s will created a trust, income to A for life, remainder in corpus to B if B survives A. G devised the residue of her estate to a charity. B predeceased A. At A’s death, B’s child, X, is living.

Solution: On A’s death, the trust property goes to X, not to the charity. Because B’s future interest is not in the form of a class gift, subsection (b)(1) [subsection (2)(a)] applies, not (b)(2) [(2)(b)]. Subsection (b)(1) [(2)(a)] creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3) [(2)(c)], the words of survivorship attached to B’s future interest (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. Nor, under subsection (b)(4) [(2)(d)], is that substitute gift superseded by an alternative future interest because, as defined in subsection (a)(1) [(1)(a)], G’s residuary clause does not create an alternative future interest. In the normal lapse situation, a residuary clause does not supersede the substitute gift created by the antilapse statute, and the same analysis applies to this situation as well.

Example 2. Same as Example 1, except that B left no descendants who survived A.

Solution: Subsection (b)(1) [(2)(a)] does not create a substitute gift with respect to B’s future interest because B left no descendants who survived A. This brings subsection (d) [(4)] into operation, under which the trust property passes to the charity under G’s residuary clause.

Example 3. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A. B predeceased A. At A’s death, G and X, B’s child, are living.

Solution: X takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) [(2)(a)] applies, not (b)(2) [(2)(b)]. Subsection (b)(1) [(2)(a)] creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3) [(2)(c)], the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. Nor, under subsection (b)(4) [(2)(d)] , is the substitute gift superseded by an alternative future interest; G’s reversion is not an alternative future interest as defined in subsection (a)(1) [(1)(a)] because it was not expressly created.

Example 4. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B predeceased A. At A’s death, C and B’s child are living.

Solution: C takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) [(2)(a)] applies, not (b)(2) [(2)(b)]. Subsection (b)(1) [(2)(a)] creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3) [(2)(c)], the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4) [(2)(d)], the substitute gift to B’s child is superseded by the alternative future interest held by C because C, having survived A (by 120 hours), is entitled to take in possession or enjoyment.

Example 5. G created an irrevocable inter-vivos trust income to A for life, remainder in corpus to B, but if B predeceases A, to the person B appoints by will. B predeceased A. B’s will exercised his power of appointment in favor of C. C survives A. B’s child, X, also survives A.

Solution: B’s appointee, C, takes the trust property, not B’s child, X. Because B’s future interest is not in the form of a class gift, subsection (b)(1) [(2)(a)] applies, not (b)(2) [(2)(b)]. Subsection (b)(1) [(2)(a)] creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3) [(2)(c)], the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4) [(2)(d)], the substitute gift to B’s child is superseded by the alternative future interest held by C because C, having survived A (by 120 hours), is entitled to take in possession or enjoyment. Because C’s future interest was created in “a” governing instrument (B’s will), it counts as an “alternative future interest”.

Example 6. G creates an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. A’s children predecease A, leaving descendants, X and Y, who survive A. B also survives A.

Solution: On A’s death, the trust property goes to B, not to X and Y. Because the future interest in A’s children is in the form of a class gift (see Restatement (Third) of Property: Wills and Other Donative Transfers § 13.1 (2008)), subsection (b)(2) [(2)(b)] applies, not (b)(1) [(2)(a)]. Subsection (b)(2) [(2)(b)] creates a substitute gift with respect to the future interest in A’s children; the substitute gift is to the descendants of A’s children, X and Y. Under subsection (b)(3) [(2)(c)], the words of survivorship (“to A’s children who 217 survive A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4) [(2)(d)], the alternative future interest to B supersedes the substitute gift to the descendants of A’s children because B survived A.

Alternative Facts: One of A’s children, J, survives A; A’s other child, K, predeceases A, leaving descendants, X and Y, who survive A. B also survives A.

Solution: J takes half the trust property and X and Y split the other half. Although there is an alternative future interest (in B) and although B did survive A, the alternative future interest was conditioned on none of A’s children surviving A. Because that condition was not satisfied, the expressly designated beneficiary of that alternative future interest, B, is not entitled to take in possession or enjoyment. Thus, the alternative future interest in B does not supersede the substitute gift to K’s descendants, X and Y.

Example 7. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B and C predecease A. At A’s death, B’s child and C’s child are living.

Solution: Subsection (b)(1) [(2)(a)] produces substitute gifts with respect to B’s future interest and with respect to C’s future interest. B’s future interest and C’s future interest are alternative future interests, one to the other. B’s future interest is expressly conditioned on B’s surviving A. C’s future interest is conditioned on B’s predeceasing A and C’s surviving A. The condition that C survive A does not arise from express language in G’s trust but from the first sentence of subsection (b) [(2)]; that sentence makes C’s future interest contingent on C’s surviving A. Thus, because neither B nor C survived A, neither B nor C is entitled to take in possession or enjoyment. So, under subsection (b)(4) [(2)(d)], neither substitute gift, created with respect to the future interests in B and C, is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) [(3)] to break the tie to determine which substitute gift takes effect.

Under subsection (c) [(3)], B is the beneficiary of the “primary future interest” because B would have been entitled to the trust property had both B and C survived A. Unless subsection (c)(2) [(3)(b)] applies, the trust property passes to B’s child as the taker under the “primary substitute gift”.

Subsection (c)(2) [(3)(b)] would only apply if C’s future interest qualifies as a “younger-generation future interest”. This depends upon whether C is a descendant of B, for C’s future interest satisfies the other requirements necessary to make it a younger-generation future interest. If C was a descendant of B, the substitute gift to C’s child would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to B’s descendants. But if C was not a descendant of B, the property would pass under the “primary substitute gift” to B’s descendants.

Example 8. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. All of A’s children predecease A. X and Y, who are descendants of one or more of A’s children, survive A. B predeceases A, leaving descendants, M and N, who survive A.

Solution: On A’s death, the trust property passes to X and Y under the “primary substitute gift”, unless B was a descendant of any of A’s children.

Subsection (b)(2) [(2)(b)] produces substitute gifts with respect to A’s children who predeceased A leaving descendants who survived A. Subsection (b)(1) [(2)(a)] creates a substitute gift with respect to B’s future interest. A’s children’s future interest and B’s future interest are alternative future interests, one to the other. A’s children’s future interest is expressly conditioned on surviving A. B’s future interest is conditioned on none of A’s children surviving A and on B’s surviving A. The condition of survivorship as to B’s future interest does not arise because of express language in G’s trust but because of the first sentence of subsection (b) [(2)]; that sentence makes B’s future interest contingent on B’s surviving A. Thus, because none of A’s children survived A, and because B did not survive A, none of A’s children nor B is entitled to take in possession or enjoyment. So, under subsection (b)(4) [(2)(d)], neither substitute gift—i.e., neither the one created with respect to the future interest in A’s children nor the one created with respect to the future interest in B—is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) [(3)] to break the tie to determine which substitute gift takes effect.

Under subsection (c) [(3)], A’s children are the beneficiaries of the “primary future interest” because they would have been entitled to the trust property had all of them and B survived A. Unless subsection (c)(2) [(3)(b)] applies, the trust property passes to X and Y as the takers under the “primary substitute gift”. Subsection (c)(2) [(3)(b)] would only apply if B’s future interest qualifies as a “younger-generation future interest”. This depends upon whether B is a descendant of any of A’s children, for B’s future interest satisfies the other requirements necessary to make it a “younger-generation future interest”. If B was a descendant of one of A’s children, the substitute gift to B’s children, M and N, would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to X and Y. But if B was not a descendant of any of A’s children, the property would pass under the “primary substitute gift” to X and Y.

Example 9. G’s will devised property in trust, income to niece Lilly for life, corpus on Lilly’s death to her children; should Lilly die without leaving children, the corpus shall be equally divided among my nephews and nieces then living, the child or children of nieces who may be deceased to take the share their mother would have been entitled to if living.

Lilly never had any children. G had 3 nephews and 2 nieces in addition to Lilly. All 3 nephews and both nieces predeceased Lilly. A child of one of the nephews survived Lilly. One of the nieces had 8 children, 7 of whom survived Lilly. The other niece had one child, who did not survive Lilly. (This example is based on the facts of Bomberger’s Estate, 32 A.2d 729 (Pa.1943).)

Solution: The trust property goes to the 7 children of the nieces who survived Lilly. The substitute gifts created by subsection (b)(2) [(2)(b)] to the nephew’s son or to the nieces’ children are superseded under subsection (b)(4) [(2)(d)] because there is an alternative future interest (the “child or children of nieces who may be deceased”) and expressly designated beneficiaries of that alternative future interest (the 7 children of the nieces) are living at Lilly’s death and are entitled to take in possession or enjoyment.

Example 10. G devised the residue of his estate in trust, income to his wife, W, for life, remainder in corpus to their children, John and Florence; if either John or Florence should predecease W, leaving descendants, such descendants shall take the share their parent would have 219 taken if living.

G’s son, John, survived W. G’s daughter, Florence, predeceased W. Florence never had any children. Florence’s husband survived W. (This example is based on the facts of Matter of Kroos, 99 N.E.2d 222 (N.Y.1951).)

Solution: John, of course, takes his half of the trust property. Because Florence left no descendants who survived W, subsection (b)(1) [(2)(a)] does not create a substitute gift with respect to Florence’s future interest in her half. Subsection (d)(1) [(4)(a)] is inapplicable because G’s trust was not created in a nonresiduary devise or in a codicil to G’s will. Subsection (d)(2) [(4)(b)] therefore becomes applicable, under which Florence’s half goes to G’s heirs determined as if G died when W died, i.e., John. See Section 2-711 [N.D.C.C. § 30.1-09.1-11].

Subsection (e) [Subsection (5)]. Subsection (e) [Subsection (5)] was added in 1993 to clarify the passing of the property in cases in which the future interest is created by the exercise of a power of appointment.

Technical Amendments. Technical amendments in 2008 added a definition of “descendants” as used in subsections (b)(1) and (2) [subsections (2)(a) and (b)] and clarified subsection (b)(4) [subsection (2)(d)]. The new definition resolves questions of status previously unanswered. The technical amendment of subsection (b)(4) makes that subsection easier to understand but does not change its substance.

Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions”, 55 Alb.L.Rev. 1091 (1992).

30.1-09.1-08. (2-708) Class gifts to descendants, issue, or heirs of the body — Form of distribution if none specified.

If a class gift in favor of “descendants”, “issue”, or “heirs of the body” does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Editorial Board Comment

Purpose of New Section. This new section tracks Restatement (1st) of Property § 303(1), and does not accept the position taken in Restatement (Second) of Property, Donative Transfers § 28.2 (1988), under which a per stirpes form of distribution is presumed, regardless of the form of distribution used in the applicable law of intestate succession.

30.1-09.1-09. (2-709) Per capita at each generation — Representation — Per stirpes.

In this section:
1. “Deceased child” or “deceased descendant” means a child or a descendant who either predeceased the distribution date or is deemed to have predeceased the distribution date under section 30.1-09.1-02.
2. “Distribution date”, with respect to an interest, means the time when the interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
3. “Surviving ancestor”, “surviving child”, or “surviving descendant” means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 30.1-09.1-02.
If a governing instrument calls for property to be distributed “per capita at each generation”, the property is divided into as many equal shares as there are surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants and deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date.
If an applicable statute or a governing instrument calls for property to be distributed “by representation” or “per stirpes”, the property is divided into as many equal shares as there are surviving children of the designated ancestor and deceased children who left surviving descendants. Each surviving child is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
For the purposes of subsections 2 and 3, an individual who is deceased and left no surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 16, 27.

Editorial Board Comment

Purpose of New Section. This new section provides statutory definitions of “representation,” “per capita at each generation,” and “per stirpes.” Subsection (b) [subsection (2)] applies to both private instruments and to provisions of applicable statutory law (such as Sections 2-603 [N.D.C.C. § 30.1-09-05], 2-706 [N.D.C.C. § 30.1-09.1-06], and 2-707 [N.D.C.C. § 30.1-09.1-07]) that call for property to be divided “by representation.” The system of representation employed is the same as that which is adopted in Section 2-106 [N.D.C.C. § 30.1-04-06, repealed] for intestate succession.

Subsection (c)’s [subsection (3)] definition of “per stirpes” accords with the predominant understanding of the term. In 1993, the phrase “if any” was added to subsection (c) [this change was not adopted by North Dakota] to clarify the point that, under per stirpes, the initial division of the estate is made at the children generation even if no child survives the ancestor.

30.1-09.1-10. (2-710) Worthier-title doctrine abolished.

The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor’s “heirs”, “heirs at law”, “next of kin”, “distributees”, “relatives”, “family”, or language of similar import does not create or presumptively create a reversionary interest in the transferor.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Editorial Board Comment

Purpose of New Section. This new section abolishes the doctrine of worthier title as a rule of law and as a rule of construction.

Cross Reference. See Section 2-711 [N.D.C.C. § 30.1-09.1-11] for a rule of construction concerning the meaning of a disposition to the heirs, etc., of a designated person.

30.1-09.1-11. (2-711) Future interests in heirs and like.

If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual’s “heirs”, “heirs at law”, “next of kin”, “relatives”, or “family”, or language of similar import, the property passes to those persons, including the state, and in such shares as would succeed to the designated individual’s intestate estate under the intestate succession law of the designated individual’s domicile if the designated individual died when the disposition is to take effect in possession or enjoyment. If the designated individual’s surviving spouse is living but is remarried at the time the disposition is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.

Source:

S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 17; 1995, ch. 322, § 27.

Editorial Board Comment

Purpose of New Section. This new section provides a statutory definition of “heirs,” etc., when contained in a dispositive provision or a statute (such as Section 2-707(h) [there is no section 2-707(h)]). This section was amended in 1993 to make it applicable to present as well as future interests in favor of heirs and the like. Application of this section to present interests codifies the position of the Restatement (Second) of Property § 29.4 cmts. c & g (1987).

Cross Reference. See Section 2-710 [N.D.C.C. § 30.1-09.1-10], abolishing the doctrine of worthier title.

CHAPTER 30.1-10 General Provisions

Note.

Effective January 1, 1996, former chapter 30.1-10 was repealed by S.L. 1993, chapter 334, section 50, and a new chapter 30.1-10, enacted by S.L. 1993, chapter 334, § 40, was substituted therefor.

General Editorial Board Comment.

Part 8 contains five general provisions that cut across probate and nonprobate transfers. Part 8 previously contained a sixth provision, Section 2-801, which dealt with disclaimers. Section 2-801 was replaced in 2002 by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (§§ 2-1101 to 2-1117 [N.D.C.C. ch. 30.1-10.1). To avoid renumbering the other sections in this Part, Section 2-801 [N.D.C.C. § 30.1-10-01, repealed] is reserved for possible future use.

Section 2-802 [N.D.C.C. § 30.1-10-02] deals with the effect of divorce and separation on the right to elect against a will, exempt property and allowances, and an intestate share.

Section 2-803 [N.D.C.C. § 30.1-10-03] spells out the legal consequence of intentional and felonious killing on the right of the killer to take as heir and under wills and revocable inter-vivos transfers, such as revocable trusts and life-insurance beneficiary designations.

Section 2-804 [N.D.C.C. § 30.1-10-04] deals with the consequences of a divorce on the right of the former spouse (and relatives of the former spouse) to take under wills and revocable inter-vivos transfers, such as revocable trusts and life-insurance beneficiary designations.

Sections 2-805 and 2-806 [N.D.C.C. §§ 30.1-10-05 and 30.1-10-06], added in 2008, bring the reformation provisions in the Uniform Trust Code into the UPC.

Application to Pre-Existing Governing Instruments. Under Section 8-101(b) [ N.D.C.C. § 30.1-35-01(2)], for decedents dying after the effective date of enactment, the provisions of this Code apply to governing instruments executed prior to as well as on or after the effective date of enactment. The Joint Editorial Board for the Uniform Probate Code has issued a statement concerning the constitutionality under the Contracts Clause of this feature of the Code. The statement, titled “Joint Editorial Board Statement Regarding the Constitutionality of Changes in Default Rules as Applied to Pre-Existing Documents”, can be found at 17 ACTEC Notes 184 (1991) or can be obtained from the headquarters office of the National Conference of Commissioners on Uniform State Laws, 676 N. St. Clair St., Suite 1700, Chicago, IL 60611, Phone 312/915-0195, FAX 312/915-0187.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (§ 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (§§ 2-1101 to 2-1117 [N.D.C.C. ch. 30.1-10.1]). The statutory references in this Comment to former Section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.

30.1-10-01. (2-801) Disclaimer of property interests. [Repealed]

Repealed by S.L. 2001, ch. 301, § 3.

30.1-10-02. (2-802) Effect of divorce, annulment, and decree of separation.

An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the spouse is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
For purposes of chapters 30.1-04 through 30.1-07 and section 30.1-13-03, a surviving spouse does not include:
1. An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently that participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
2. An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
3. An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.

Source:

S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 12; 1993, ch. 334, § 40; 1995, ch. 322, § 27.

Editorial Board Comment.

Clarifying Revision. The only substantive revision of this section is a clarifying revision of subsection (b)(2) [subsection (2)(b)], making it clear that this subsection refers to an invalid decree of divorce or annulment.

Rationale. Although some existing statutes bar the surviving spouse for desertion or adultery, the present section requires some definitive legal act to bar the surviving spouse. Normally, this is divorce. Subsection (a) [subsection (1)] states an obvious proposition, but subsection (b) [subsection (2)] deals with the difficult problem of invalid divorce or annulment, which is particularly frequent as to foreign divorce decrees but may arise as to a local decree where there is some defect in jurisdiction; the basic principle underlying these provisions is estoppel against the surviving spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not affected; but if the separation is accompanied by a complete property settlement, this may operate under Section 2-213 [N.D.C.C. § 30.1-05-07] as a waiver or renunciation of benefits under a prior will and by intestate succession.

Cross Reference. See Section 2-804 [N.D.C.C. § 30.1-10-04] for similar provisions relating to the effect of divorce to revoke devises and other revocable provisions to a former spouse.

Cross-References.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

Collateral References.

Descent and Distribution 63; Executors and Administrators 188; Wills 785.5 (3, 4).

23 Am. Jur. 2d, Descent and Distribution, §§ 125-133.

Separation agreement as barring rights of surviving spouse in other’s estate, 34 A.L.R.2d 1020, 1039.

Extrajudicial separation as affecting surviving spouse’s right to widow’s allowance, 34 A.L.R.2d 1056.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 486.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

30.1-10-03. (2-803) Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations.

In this section:
1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
2. “Governing instrument” means a governing instrument executed by the decedent.
3. “Revocable”, with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation, in favor of the killer, whether or not the decedent was then empowered to designate the decedent in place of the decedent’s killer or the decedent then had capacity to exercise the power.
An individual who intentionally and feloniously kills the decedent forfeits all benefits under this title with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed the killer’s intestate share.
The intentional and felonious killing of the decedent:
1. Revokes any revocable disposition or appointment of property made by the decedent to the killer in a governing instrument, provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent.
2. Voids the interests of the killer in property held with the decedent at the time of the killing as joint tenants with the right of survivorship.
The voided interest under subdivision b of subsection 3 does not affect any third-party interest in property acquired for value and in good-faith reliance on an apparent title by survivorship in the killer unless a writing declaring the voided interest has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property that are relied upon, in the ordinary course of transactions involving the property, as evidence of ownership.
Provisions of a governing instrument are given effect as if the killer disclaimed all revoked provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from any wrong.
After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent’s killer for purposes of this section. In the absence of a conviction, the court, upon the petition of an interested person, must determine whether, under the preponderance of evidence standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent’s killer for purposes of this section.
1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing, or for having taken any other action in reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent’s death, before the payer or other third party received written notice of a claimed forfeiture or revocation under this section. A payer or other third party does not have a duty or obligation to make any determination as to whether the decedent was a victim of a felonious killing or to seek any evidence with respect to a felonious killing even if the circumstances of the decedent’s death are suspicious or questionable as to the beneficiary’s participation in any such felonious killing. A payer or other third party is only liable for actions taken two or more business days after the actual receipt by the payer or other third party of written notice. The payer or other third party may be liable for actions taken pursuant to the governing instrument only if the form of service is that described in subdivision b.
2. The written notice must indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. Written notice of a claimed forfeiture or revocation under this subsection must be mailed to the payer’s or third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Notice to a sales representative of the payer or other third party does not constitute notice to the payer or other third party. Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. In addition to the actions available under this section, the payer or other third party may take any action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transferred to or deposit with the court of any item of property, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
1. A bona fide purchaser who purchases property, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
2. If this section or any part of this section is preempted by federal law, other than the federal Employee Retirement Income Security Act of 1974, as amended, with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 40; 1995, ch. 322, §§ 19, 27; 1997, ch. 51, § 25; 1999, ch. 294, § 3; 2007, ch. 283, § 1.

Editorial Board Comment.

Purpose and Scope of Revisions. This section is substantially revised. Although the revised version does make a few substantive changes in certain subsidiary rules (such as the treatment of multiple party accounts, etc.), it does not alter the main thrust of the pre-1990 version. The major change is that the revised version is more comprehensive than the pre-1990 version. The structure of the section is also changed so that it substantially parallels the structure of Section 2-804 [N.D.C.C. § 30.1-10-04], which deals with the effect of divorce on revocable benefits to the former spouse.

The pre-1990 version of this section was bracketed to indicate that it may be omitted by an enacting state without difficulty. The revised version omits the brackets because the Joint Editorial Board/Article II Drafting Committee believes that uniformity is desirable on the question.

As in the pre-1990 version, this section is confined to felonious and intentional killing and excludes the accidental manslaughter killing. Subsection (g) [subsection (7)] leaves no doubt that, for purposes of this section, a killing can be “felonious and intentional,” whether or not the killer has actually been convicted in a criminal prosecution. Under subsection (g) [subsection (7)], after all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent’s killer for purposes of this section. Acquittal, however, does not preclude the acquitted individual from being regarded as the decedent’s killer for purposes of this section. This is because different considerations as well as a different burden of proof enter into the finding of criminal accountability in the criminal prosecution. Hence it is possible that the defendant on a murder charge may be found not guilty and acquitted, but if the same person claims as an heir, devisee, or beneficiary of a revocable beneficiary designation, etc. of the decedent, the probate Court, upon the petition of an interested person, may find that, under a preponderance of the evidence standard, he or she would be found criminally accountable for the felonious and intentional killing of the decedent and thus be barred under this section from sharing in the affected property. In fact, in many of the cases arising under this section there may be no criminal prosecution because the killer has committed suicide.

It is now well accepted that the matter dealt with is not exclusively criminal in nature but is also a proper matter for probate Courts. The concept that a wrongdoer may not profit by his or her own wrong is a civil concept, and the probate Court is the proper forum to determine the effect of killing on succession to the decedent’s property covered by this section. There are numerous situations where the same conduct gives rise to both criminal and civil consequences. A killing may result in criminal prosecution for murder and civil litigation by the decedent’s family under wrongful death statutes. Another analogy exists in the tax field, where a taxpayer may be acquitted of tax fraud in a criminal prosecution but found to have committed the fraud in a civil proceeding.

The phrases “criminal accountability” and “criminally accountable” for the felonious and intentional killing of the decedent not only include criminal accountability as an actor or direct perpetrator, but also as an accomplice or co-conspirator.

Unlike the pre-1990 version, the revised version contains a subsection protecting payors who pay before receiving written notice of a claimed forfeiture or revocation under this section, and imposing personal liability on the recipient or killer.

The pre-1990 version’s provision on the severance of joint tenancies and tenancies by the entirety also extended to “joint and multiple party accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.” Under subsection (c)(2) [subsection (3)(b)] of the revised version, the severance applies only to “property held by [the decedent and killer] as joint tenants with the right of survivorship [or as community property with the right of survivorship].” The terms “joint tenants with the right of survivorship” and “community property with the right of survivorship” are defined in Section 1-201 [N.D.C.C. § 30.1-01-06]. That definition includes tenancies by the entirety, but excludes “forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party’s contribution.” Under subsection (c)(1) [subsection (3)(a)], any portion of the decedent’s contribution to the co-ownership registration running in favor of the killer would be treated as a revocable and revoked disposition.

Subsection (e) [subsection (5)] was amended in 1993 to make it clear that the antilapse statute applies in appropriate cases in which the killer is treated as having disclaimed.

ERISA Preemption of State Law. The Employee Retirement Income Security Act of 1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. See the Comment to Section 2-804 [N.D.C.C. § 30.1-10-04] for a discussion of the ERISA preemption question.

Cross References. See Section 1-201 [N.D.C.C. § 30.1-01-06] for definitions of “beneficiary designated in a governing instrument,” “governing instrument,” “joint tenants with the right of survivorship,” “community property with the right of survivorship,” and “payor.”

1997 Technical Amendment. By technical amendment effective July 31, 1997, the word “equal” was added to subsection (c)(2) [subsection (3)(b)] to make it clear that the effect of severing the interests of the decedent and killer is to transform their interest into equal tenancies in common, without regard to the percentage of consideration furnished by either [this change was not made in North Dakota’s provision, which instead provides for voiding of any interest held as joint tenant with right of survivorship with the decedent]]. Although this was the intent of this subsection, the court in Estate of Garland, 928 P.2d 928 (Mont. 1996), misconstrued the original language and held that once the interests were severed and transformed into tenancies in common, the shares “depend on the decedent’s and the [killer’s] individual contributions to the acquisition and maintenance of the property.” This percentage-of consideration rule is inconsistent with both the general principle of section 2-803 [N.D.C.C. § 30.1-10-03] and with the statutory language. Section 2-803 [this section] is based on the principle that while the killer should not gain from the killing, neither should the killer be deprived of the killer’s own property. In the case of a joint tenancy, neither the killer nor the victim could by a lawful, unilateral act have severed and become owner of more than his or her fractional interest. This is true even if one joint tenant provided more consideration than another joint tenant. Once property is titled in joint tenancy, any excess consideration provided by one joint tenant constitutes an irrevocable gift to the other joint tenant or tenants. The original statutory language established a fractional-interest rule by providing that the interests that are transformed into tenancies in common are “the [severed] interests of the decedent and killer.” The statutory language, as revived, confirms this strict fractioning.

Notes to Decisions

Conviction Not Required.
“Feloniously”.
Inheritance Denied.
Joint Tenancy.
Parents Killed by Minor.
Surviving Issue of Killer Sharing in Estate.

Conviction Not Required.

In the absence of a final judgment of criminal conviction, the felonious and intentional killing of the decedent may be proved by a preponderance of the evidence in a civil proceeding. In re Estates of Josephson, 297 N.W.2d 444, 1980 N.D. LEXIS 331 (N.D. 1980).

“Feloniously”.

As used in subsection 1 (see now subsection 2), “feloniously” is not limited to the intentional doing of an act which constitutes a felony as defined by statute, but refers to a killing that is wrongful and without legal excuse or justification. In re Estates of Josephson, 297 N.W.2d 444, 1980 N.D. LEXIS 331 (N.D. 1980).

Inheritance Denied.

In North Dakota a surviving spouse who “feloniously and intentionally kills the decedent” is not entitled to inherit from the deceased. In re Estate of Burshiem, 483 N.W.2d 175, 1992 N.D. LEXIS 73 (N.D. 1992).

Joint Tenancy.

Where son feloniously and intentionally killed his father with whom he held certain property in joint tenancy, the effect of such killing caused a severance of the joint tenancy and created a tenancy in common, with a one-half undivided interest of the jointly held property passing to the father’s estate and the other one-half undivided interest retained by the son. In re Estate of Snortland, 311 N.W.2d 36, 1981 N.D. LEXIS 384 (N.D. 1981).

Parents Killed by Minor.

Uniform Juvenile Court Act provisions insulating minor from a criminal conviction for killing of his parents and protecting against civil disabilities ordinarily resulting from conviction do not prohibit the operation of this section to exclude a minor from receiving benefits, including support payments until the age of majority, from his parents’ estates where the court with probate jurisdiction finds by a preponderance of the evidence that the killing of the parents by the minor was felonious and intentional. In re Estates of Josephson, 297 N.W.2d 444, 1980 N.D. LEXIS 331 (N.D. 1980).

Surviving Issue of Killer Sharing in Estate.

Although one who feloniously and intentionally kills another person is not entitled to share in his victim’s estate, the share he otherwise would have taken passes as though he had predeceased his victim; where man killed his father who died intestate, the man’s son was entitled to the man’s share in the father’s estate by representation. In re Estate of Snortland, 311 N.W.2d 36, 1981 N.D. LEXIS 384 (N.D. 1981).

Collateral References.

Descent and Distribution 51, 63; Insurance 594.1; Joint Tenancy 4; Wills 711.

23 Am. Jur. 2d, Descent and Distribution, §§ 44 et seq.; 79 Am Jur 2d Wills §§ 154, 155.

26B C.J.S. Descent and Distribution, §§ 56-59, 66-67; 46 C.J.S. Insurance, § 1674; 48 C.J.S. Joint Tenancy, § 3; 95 C.J.S. Wills, §§ 100, 101.

Life tenant’s murder by remainderman or reversioner as affecting latter’s rights to remainder or reversion, 24 A.L.R.2d 1120.

Insurance: right to proceeds of life insurance, as between estate of murdered insured and alternative beneficiary named in policy, where murderer was made primary beneficiary, 26 A.L.R.2d 987.

Insurance: killing of insured by beneficiary as affecting life insurance or its proceeds, 27 A.L.R.3d 794.

Cotenancy: felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter’s right in the property, 42 A.L.R.3d 1116.

Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.

Law Reviews.

The New North Dakota Slayer Statute: Does It Cause a Criminal Forfeiture?, 83 N.D. L. Rev. 997 (2007).

30.1-10-04. (2-804) Revocation of probate and nonprobate transfers by divorce — No revocation by other changes of circumstances.

In this section:
1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
2. “Divorce or annulment” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 30.1-10-02. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
3. “Divorced individual” includes an individual whose marriage has been annulled.
4. “Governing instrument” means a governing instrument executed by the divorced individual before the divorce or annulment of the marriage to the former spouse.
5. “Relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
6. “Revocable”, with respect to a disposition, appointment, provision, or nomination means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the former spouse or former spouse’s relative, whether or not the divorced individual was then empowered to designate the divorced individual in place of the former spouse or in place of the former spouse’s relative and whether or not the divorced individual then had the capacity to exercise the power.
Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
1. Revokes any revocable disposition or appointment of property made by a divorced individual to the individual’s former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse, provision in a governing instrument conferring a general or special power of appointment on the divorced individual’s former spouse or on a relative of the divorced individual’s former spouse, and nomination in a governing instrument, nominating a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian.
2. Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of former spouses into equal tenancies in common.
A severance under subdivision b of subsection 2 does not affect any third-party interest in property acquired for value and in good-faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
Provisions revoked solely by this section are revived by the divorced individual’s remarriage to the former spouse or by a nullification of the divorce or annulment.
No change of circumstances other than as described in this section and in section 30.1-10-03 effects a revocation.
1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in reliance on the validity of the governing instrument, before the payer or other third party received written notice of the divorce, annulment, or remarriage. A payer or other third party does not have a duty or obligation to inquire as to the continued marital relationship between the decedent and a beneficiary or to seek any evidence with respect to a marital relationship. A payer or other third party is only liable for actions taken two or more business days after the actual receipt by the payer or other third party of written notice. The payer or other third party may be liable for actions taken pursuant to the governing instrument only if the form of service is that described in subdivision b.
2. The written notice must indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a divorce, annulment, or remarriage of the decedent and the designated beneficiary occurred. Written notice of the divorce, annulment, or remarriage under this subdivision must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. In addition to the actions available under this section, the payer or other third party may take any action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transferred to or deposit with the court of any item of property, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
1. A bona fide purchaser who purchases property from a former spouse, relative of a former spouse, or any other person, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
2. If this section or any part of this section is preempted by federal law, other than the federal Employee Retirement Income Security Act of 1974, as amended, with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source:

S.L. 1993, ch. 334, § 40; 1995, ch. 322, §§ 20, 27; 1999, ch. 294, § 4.

Editorial Board Comment.

Purpose and Scope of Revision. The revisions of this section, pre-1990 Section 2-508, intend to unify the law of probate and nonprobate transfers. As originally promulgated, pre-1990 Section 2-508 revoked a pre-divorce devise to the testator’s former spouse. The revisions expand the section to cover “will substitutes” such as revocable inter-vivos trusts, life-insurance and retirement-plan beneficiary designations, transfer-on-death accounts, and other revocable dispositions to the former spouse that the divorced individual established before the divorce (or annulment). As revised, this section also effects a severance of the interests of the former spouses in property that they held at the time of the divorce (or annulment) as joint tenants with the right of survivorship; their co-ownership interests become tenancies in common.

As revised, this section is the most comprehensive provision of its kind, but many states have enacted piecemeal legislation tending in the same direction. For example, Michigan and Ohio have statutes transforming spousal joint tenancies in land into tenancies in common upon the spouses’ divorce. Mich. Comp. Laws Ann. § 552.102; Ohio Rev. Code Ann. § 5302.20(c)(5). Ohio, Oklahoma, and Tennessee have recently enacted legislation effecting a revocation of provisions for the settlor’s former spouse in revocable inter-vivos trusts. Ohio Rev. Code Ann. § 1339.62; Okla. Stat. Ann. tit. 60, § 175; Tenn. Code Ann. § 35-50-5115 (applies to revocable and irrevocable inter-vivos trusts). Statutes in Michigan, Ohio, Oklahoma, and Texas relate to the consequence of divorce on life-insurance and retirement-plan beneficiary designations. Mich. Comp. Laws Ann. § 552.101; Ohio Rev. Code Ann. § 1339.63; Okla. Stat. Ann. tit. 15, § 178; Tex. Fam. Code §§ 3.632-633.

The Courts have also come under increasing pressure to use statutory construction techniques to extend statutes like the pre-1990 version of Section 2-508 to various will substitutes. In Clymer v. Mayo, 473 N.E.2d 1084 (Mass.1985), the Massachusetts Court held the statute applicable to a revocable inter-vivos trust, but restricted its “holding to the particular facts of this case-specifically the existence of a revocable pour-over trust funded entirely at the time of the decedent’s death.” 473 N.E.2d at 1093. The trust in that case was an unfunded life-insurance trust; the life insurance was employer-paid life insurance. In Miller v. First Nat’l Bank & Tr. Co., 637 P.2d 75 (Okla. 1981), the Court also held such a statute to be applicable to an unfunded life-insurance trust. The testator’s will devised the residue of his estate to the trustee of the life-insurance trust. Despite the absence of meaningful evidence of intent to incorporate, the Court held that the pour-over devise incorporated the life-insurance trust into the will be reference, and thus was able to apply the revocation-upon-divorce statute. In Equitable Life Assurance Society v. Stitzel, 1 Pa. Fiduc.2d 316 (C.P.1981), however, the Court held a statute similar to the pre-1990 version of Section 2-508 to be inapplicable to effect a revocation of a life-insurance beneficiary designation of the former spouse.

Revoking Benefits of the Former Spouse’s Relatives. In several cases, including Clymer v. Mayo, 473 N.E.2d 1084 (Mass. 1985), and Estate of Coffed, 387 N.E.2d 1209 (N.Y. 1979), the result of treating the former spouse as if he or she predeceased the testator was that a gift in the governing instrument was triggered in favor of relatives of the former spouse who, after the divorce, were no longer relatives of the testator. In the Massachusetts case, the former spouse’s nieces and nephews ended up with an interest in the property. In the New York case, the winners included the former spouse’s child by a prior marriage. For other cases to the same effect, see Porter v. Porter, 286 N.W.2d 649 (Iowa 1979); Bloom v. Selfon, 555 A.2d 75 (Pa. 1989); Estate of Graef, 368 N.W.2d 633 (Wis. 1985). Given that, during divorce process or in the aftermath of the divorce, the former spouse’s relatives are likely to side with the former spouse, breaking down or weakening any former ties that may previously have developed between the transferor and the former spouse’s relatives, seldom would the transferor have favored such a result. This section, therefore, also revokes these gifts.

Consequence of Revocation. The effect of revocation by this section is that the provisions of the governing instrument are given effect as if the divorced individual’s former spouse (and relatives of the former spouse) disclaimed all provisions revoked by this section (see Section 2-1106 [N.D.C.C. § 30.1-10.1-03] for the effect of a disclaimer). Note that this means that the antilapse statute applies in appropriate cases in which the divorced individual or relative is treated as having disclaimed. In the case of a revoked nomination in a fiduciary or representative capacity, the provisions of the governing instrument are given effect as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If the divorced individual (or relative of the divorced individual) is the donee of an unexercised power of appointment that is revoked by this section, the gift-in-default clause, if any, is to take effect, to the extent that the gift-in-default clause is not itself revoked by this section.

ERISA’s preemption clause is extraordinarily broad. ERISA Section 514(a) does not merely preempt state laws that conflict with specific provisions in ERISA. Section 514(a) preempts “any and all State laws” insofar as they “relate to” any ERISA-governed employee benefit plan.

A complex case law has arisen concerning the question of whether to apply ERISA Section 514(a) to preempt state law in circumstances in which ERISA supplies no substantive regulation. For example, until 1984, ERISA contained no authorization for the enforcement of state domestic relations decrees against pension accounts, but the federal Courts were virtually unanimous in refusing to apply ERISA preemption against such state decrees. See, e.g., American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979). The Retirement Equity Act of 1984 amended ERISA to add Sections 206(d)(3) and 514(b)(7), confirming the judicially created exception for state domestic relations decrees.

The federal Courts have been less certain about whether to defer to local probate law. In Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. H.F. Johnson, Inc., 830 F.2d 1009 (9th Cir.1987), the Court held that ERISA preempted the Montana nonclaim statute (which is Section 3-803 [N.D.C.C. § 30.1-19-03] of the Uniform Probate Code). On the other hand, in Mendez-Bellido v. Board of Trustees, 709 F.Supp. 329 (E.D.N.Y.1989), the Court applied the New York “slayer-rule” against an ERISA preemption claim, reasoning that “state laws prohibiting murderers from receiving death benefits are relatively uniform [and therefore] there is little threat of creating a ‘patchwork scheme of regulations’” that ERISA sought to avoid.

It is to be hoped that the federal Courts will continue to show sensitivity to the primary role of state law in the field of probate and nonprobate transfers. To the extent that the federal Courts think themselves unable to craft exceptions to ERISA’s preemption language, it is open to them to apply local law concepts as federal common law. Because the Uniform Probate Code contemplates multistate applicability, it is well suited to be the model for federal common law absorption.

Another avenue of reconciliation between ERISA preemption and the primacy of state law in this field is envisioned in subsection (h)(2) [subsection (8)(b)] of this section. It imposes a personal liability for pension payments that pass to a former spouse or relative of a former spouse. This provision respects ERISA’s concern that federal law govern the administration of the plan, while still preventing unjust enrichment that would result if an unintended beneficiary were to receive the pension benefits. Federal law has no interest in working a broader disruption of state probate and nonprobate transfer law than is required in the interest of smooth administration of pension and employee benefit plans.

References. The theory of this section is discussed in Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683, 689-701 (1992). See also Langbein, “The Nonprobate Revolution and the Future of the Law of Succession,” 97 Harv.L.Rev. 1108 (1984).

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (§ 2-801 [N.D.C.C. 30.1-10-06, repealed]) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (§§ 2-1101 – 2-1117 [N.D.C.C. ch. 30.1-10.1). The statutory references in this Comment to former section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.

Notes to Decisions

Effect of Divorce.

Husband died testate, and only those bequests and powers granted to the wife by the will were revoked by operation of law, where husband and wife were divorced after husband had executed a will and husband had not changed his will concerning wife’s rights thereunder. In re Estate of Knudsen, 322 N.W.2d 454, 1982 N.D. LEXIS 316 (N.D. 1982).

Collateral References.

Wills 193.

79 Am. Jur. 2d, Wills, §§ 550 et seq.

95 C.J.S. Wills, § 420.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

30.1-10-05. (2-805) Reformation to correct mistakes.

The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence that the transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Source:

S.L. 2009, ch. 283, § 23.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

Added in 2008, Section 2-805 [this section] is based on Section 415 of the Uniform Trust Code, which in turn was based on Section 12.1 of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003).

Section 2-805 is broader in scope than Section 415 of the Uniform Trust Code because Section 2-805 applies but is not limited to trusts.

Section 12.1, and hence Section 2-805, is explained and illustrated in the Comments to Section 12.1 of the Restatement and also, in the case of a trust, in the Comment to Section 415 of the Uniform Trust Code.

30.1-10-06. (2-806) Modification to achieve transferor’s tax objectives.

To achieve the transferor’s tax objectives, the court may modify the terms of a governing instrument in a manner that is not contrary to the transferor’s probable intention. The court may provide that the modification has retroactive effect.

Source:

S.L. 2009, ch. 283, § 24.

Effective Date.

This section became effective August 1, 2009.

Editorial Board Comment.

Added in 2008, Section 2-806 [this section] is based on Section 416 of the Uniform Trust Code, which in turn was based on Section 12.2 of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003).

Section 2-806 is broader in scope than Section 416 of the Uniform Trust Code because Section 2-806 applies but is not limited to trusts.

Section 12.2, and hence Section 2-806, is explained and illustrated in the Comments to Section 12.2 of the Restatement and also, in the case of a trust, in the Comment to Section 416 of the Uniform Trust Code.

CHAPTER 30.1-10.1 Disclaimer of Property Interests

General Editorial Board Comment.

Part 11 incorporates into the Code the Uniform Disclaimer of Property Interests Act (UDIPA or Act). The UDPIA replaces the Code’s former disclaimer provision (Section 2-801 [N.D.C.C. § 30.1-10-01, repealed]). It also replaces three Uniform Acts promulgated in 1978 (Uniform Disclaimer of Property Interests Act, Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act, and Uniform Disclaimer of Transfers under Nontestatmentary Instruments Act). The new Act is the most comprehensive disclaimer statute ever written. It is designed to allow every sort of disclaimer, including those that are useful for tax planning purposes. It does not, however, include a specific time limit on the making of any disclaimer. Because a disclaimer is a refusal to accept, the only bar to a disclaimer should be acceptance of the offer. In addition, in almost all jurisdictions disclaimers can be used for more than tax planning. A proper disclaimer will often keep the disclaimed property from the disclaimant’s creditors. In short, the new Act is an enabling statute which prescribes all the rules for refusing a proffered interest in or power over property and the effect of that refusal on the power or interest while leaving the effect of the refusal itself to other law. Section 2-1113(e) [N.D.C.C. § 30.1-10.1-10(5)] explicitly states that a disclaimer may be barred or limited by law other than the Act.

The decision not to include a specific time limit– to “decouple” the disclaimer statute from the time requirement applicable to a “qualified disclaimer” under IRC § 2518–is also designed to reduce confusion. The older Uniform Acts and almost all the current state statutes (many of which are based on those Acts) were drafted in the wake of the passage of IRC § 2518 in 1976. That provision replaced the “reasonable time” requirement of prior law with a requirement that a disclaimer must be made within nine months of the creation of the interest disclaimed if the disclaimer is to be a “qualified disclaimer” which is not regarded as transfer by the disclaimant. The statutes that were written in response to this new provision of tax law reflected the nine month time limit. Under most of these statutes (including the older Uniform Acts and former Section 2-801) a disclaimer must be made within nine months of the creation of a present interest (for example, as disclaimer of an outright gift under a will must be made within nine months of the decedent’s death), which corresponds to the requirement of IRC § 2518. A future interest, however, may be disclaimed within nine months of the time the interest vests in possession or enjoyment (for example, a remainder whether or not contingent on surviving the holder of the life income interest must be disclaimed within nine months of the death of the life income beneficiary). The time limit for future interests does not correspond to IRC § 2518 which generally requires that a qualified disclaimer of a future interest be made within nine months of the interest’s creation, no matter how contingent it may then be. The nine-month time limit of the existing statutes really is a trap. While it superficially conforms to IRC § 2518, its application to the disclaimer of future interests does not. The removal of all mention of time limits will clearly signal the practitioner that the requirements for a tax qualified disclaimer are set by different law.

The elimination of the time limit is not the only change from current statutes. The Act abandons the concept of “relates back” as a proxy for when a disclaimer becomes effective. Instead, by stating specifically when a disclaimer becomes effective and explicitly stating in Section 2-1105(f) [N.D.C.C. § 30.1-10.1-02(6)] that a disclaimer “is not a transfer, assignment, or release,” the Act makes clear the results of refusing property or powers through a disclaimer. Second, UDPIA creates rules for several types of disclaimers that have not been explicitly addressed in previous statutes. The Act provides detailed rules for the disclaimer of interests in jointly held property (Section 2-1107 [N.D.C.C. § 30.1-10.1-04]). Such disclaimers have important uses especially in tax planning, but their status under current law is not clear. Furthermore, although current statutes mention the disclaimer of jointly held property, they provide no details. Recent developments in the law of qualified disclaimers of jointly held property make fuller treatment of such disclaimers necessary. Section 2-1108 [N.D.C.C. § 30.1-10.1-05] addresses the disclaimer by trustees of property that would otherwise become part of the trust. The disclaimer of powers of appointment and other powers not held in a fiduciary capacity is treated in Section 2-1109 [N.D.C.C. § 30.1-10.1-06] and disclaimers by appointees, objects, and takers in default of exercise of a power of appointment is the subject of Section 2-1110 [N.D.C.C. § 30.1-10.1-07]. Finally, Section 2-1111 [N.D.C.C. § 30.1-10.1-08] provides rules for the disclaimer of powers held in a fiduciary capacity.

30.1-10.1-01. (2-1102) Definitions.

In this chapter:

“Beneficiary designation” means an instrument, other than an instrument creating a trust, naming the beneficiary of an insurance or annuity policy; an account with a designation for payment on death; a security registered in beneficiary form; a pension, profit-sharing, retirement, or other employment-related benefit plan; or any other nonprobate transfer at death.
“Disclaimant” means the person to whom the disclaimed interest or power would have passed had the disclaimer not been made.
“Disclaimed interest” means the interest or share to which the disclaimant would have been entitled had the disclaimer not been made.
“Disclaimer” means a refusal to accept an interest in, or power over, property.
“Distribution time” means the time when the disclaimed interest would have taken effect in possession or enjoyment.
“Fiduciary” means a personal representative, trustee, an agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.
“Future interest” means an interest that takes effect in possession or enjoyment, if at all, after the time of its creation.
“Jointly held property” means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
“Signed” means, with present intent to authenticate or adopt a record, to execute or adopt a tangible symbol, or attach to or logically associate with the record an electronic sound, symbol, or process.
“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.
“Trust” means an express trust, charitable or noncharitable, with additions, whenever and however created; and means a trust created pursuant to a statute, judgment, or decree which requires the trust to be administered in the manner of an express trust.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 1.

Editorial Board Comment.

[Section 2-1101 of the Uniform Probate Code is reserved. The comment to this reserved section reads as follows: This Section is marked “Reserved” in order to preserve corresponding numbering between the free-standing form of the Uniform Disclaimers of Property Interests Act (1999) and its version as codified in the Uniform Probate Code. The result is that Section 2 of the free-standing act becomes Section 2-1102 of the UPC, and so on.]

The definition of “disclaimant” (paragraph (1) [paragraph (2)]) limits the term to the person who would have received the disclaimed property or power if the disclaimer had not been made. The disclaimant is not necessarily the person making the disclaimer, who may be a guardian, custodian, or other fiduciary acting for the disclaimant or the personal representative of the disclaimant’s estate.

The term “disclaimed interest” (paragraph (2) [paragraph (3)]) refers to the subject matter of a disclaimer of an interest in property and provides a compact term the use of which simplifies the drafting of Section 2-1106 [N.D.C.C. § 30.1-10.1-03].

The definition of “disclaimer” (paragraph (3) [paragraph (4)]) expands previous definitions. Prior Uniform Acts provided for a disclaimer of “the right of succession to any property or interest therein” and former Section 2-801 [N.D.C.C. § 30.1-10-01, repealed] referred to “an interest in or with respect to property or an interest therein.” These previously authorized types of disclaimers are continued by the present language referring to “an interest in ... property.” The language referring to “power over property” broadens the permissible scope of disclaimers to include any power over property that gives the power-holder a right to control property, whether it be cast in the form of a power of appointment or a fiduciary’s management power over property or discretionary power of distribution over income or corpus.

Under the Act, a “fiduciary” (defined in paragraph (4) [paragraph (6)]) is given the power to disclaim except where specifically prohibited by state law by the document creating the fiduciary relationship. See Section 2-1104(b) [not adopted by North Dakota]

The term “jointly held property” (paragraph (5) [paragraph (8)]) includes not only a traditional joint tenancy but also other property that is “held,” but may not be “owned,” by two or more persons with a right of survivorship. One form of such property is a joint bank account between parties who are not married to each other which, under the laws of many States, is owned by the parties in proportion to their deposits. (See Section 6-211(b) [N.D.C.C. § 30.1-31-08(2)]) This “holding” concept, as opposed to “owning,” may also be true with joint brokerage accounts under the law of some States. See Treas. Regs. § 25.2518-2(c)(4).

The terms “person” (paragraph (6), “State” (paragraph (7) [paragraph (11)]), and “trust” (paragraph (8) [paragraph (12)]) are also defined in Section 1-201 [N.D.C.C. § 30.1-01-06] of this Code, but the more modern version of these definitions is included here for ease of reference. For purposes of this Part, the definitions in this Section control. [North Dakota’s adoption of this section does not include the definition for “person”]

The term “trust” (paragraph (8) [paragraph (12)]) means an express trust, whether private or charitable, including a trust created by statute, court judgment or decree which is to be administered in the manner of an express trust. Excluded from the Act’s coverage are resulting and constructive trusts, which are not express trusts but remedial devices imposed by law. The Act is directed primarily at express trust which arise in an estate planning or other donative context, but the definition of “trust” is not so limited. A trust created pursuant to a divorce action would be included, even though such a trust is not donative but is created pursuant to a bargained for exchange. The extent to which even more commercially-oriented trusts are subject to the Act will vary depending on the type of trust and the laws, other than this Act, under which the trust is created. Commercial trusts come in various forms, including created pursuant to a state business trust act and trusts created to administer specified funds, such as to pay a pension or to manage pooled investments. See John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107 Yale L.J. 165 (1997).

Collateral References.

Descent and Distribution 72; Wills 717.

23 Am. Jur. 2d, Descent and Distribution, §§ 157, 158; 62 Am Jur 2d Powers of Appointment and Alienation § 206 et seq.; 80 Am Jur 2d Wills § 1359 et seq.

26A C.J.S. Descent and Distribution, § 64; 96 C.J.S. Wills, § 1151.

Appointee’s right to renounce appointment under power, 9 A.L.R.2d 1382.

Acceptance or renunciation of devise or bequest by beneficiary, what establishes, 93 A.L.R.2d 8.

Taxes: renunciation of inheritance, devise, or legacy as affecting state inheritance, estate, or succession tax, 27 A.L.R.3d 1354.

Creditor’s right to prevent debtor’s renunciation of benefit under will or debtor’s election to take under will, 39 A.L.R.4th 633.

Law Reviews.

North Dakota Estate Planning Under the Tax Reform Act of 1976, 54 N.D. L. Rev. 7 (1977).

30.1-10.1-02. (2-1105) General provisions.

A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
Except to the extent the fiduciary’s power to disclaim is expressly limited by another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or as any other interest or estate in the property.
A disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in section 30.1-10.1-09.
A disclaimer becomes irrevocable upon the later to occur of its delivery or filing as provided in section 30.1-10.1-09, or when it becomes effective as provided in sections 30.1-10.1-03 through 30.1-10.1-08.
A disclaimer made under this chapter is not a transfer, assignment, or release.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 2.

Editorial Board Comment.

Subsections (a) and (b) [subsections (1) and (2)] give both persons (as defined in Section 2-1102(6)) [definition of “person” not included in North Dakota’s adoption of this section] and fiduciaries (as defined in Section 2-1102(4) [N.D.C.C. § 30.1-10.1-01(6)]) and other persons a broad power to disclaim both interests in and powers over property. In both instances, the ability to disclaim interests is comprehensive; it does not matter whether the disclaimed interest is vested, either in interest or in possession. For example, Father’s will creates a testamentary trust which is to pay income to his descendants and after the running of the traditional perpetuities period is to terminate and be distributed to his descendants then living by representation. If at any time there are no descendants, the trust is to terminate and be distributed to collateral relatives. At the time of Father’s death he has many descendants and the possibility of his line dying out and the collateral relatives taking under the trust is remote in the extreme. Nevertheless, under the Act the collateral relatives may disclaim their contingent remainders. In order to make a qualified disclaimer for tax purposes, however, they must disclaim them within 9 months of Father’s death.) Every sort of power may also be disclaimed.

Subsection (a) continues the provisions of current law by making ineffective any attempt to limit the right to disclaim which the creator of an interest or non-fiduciary power seeks to impose on a person. This provision follows from the principle behind all disclaimers – no one can be forced to accept property – and extends that principle to powers over property.

This Act also gives fiduciaries broad powers to disclaim both interests and powers. A fiduciary who may also be a beneficiary of the fiduciary arrangement may disclaim in either capacity. For example, a trustee who is also one of several beneficiaries of a trust may have the power to invade trust principal for the beneficiaries. The trustee may disclaim the power as trustee under Section 2-1111 [N.D.C.C. § 30.1-10.1-08] or may disclaim as a holder of a power of appointment under Section 2-1109 [N.D.C.C. § 30.1-10.1-06]. Subsection (b) also gives fiduciaries the right to disclaim in spite of spendthrift or similar restrictions given, but subjects that right to a restriction applicable only to fiduciaries. As a policy matter, the creator of a trust or other arrangement creating a fiduciary relationship should be able to prevent a fiduciary accepting office under the arrangement from altering the parameters of the relationship. This reasoning also applies to fiduciary relationships created by statute such as those governing conservatorships and guardianships. Subsection (b) therefore does not override express restrictions on disclaimers contained in the instrument creating the fiduciary relationship or in other statutes of the State.

Subsection (c) [subsection (3)] sets forth the formal requirements for a disclaimer. The definitions of “record” and “signed” in this subsection are derived from the Uniform Electronic Transactions Act § 102 [North Dakota has adopted these definitions as paragraphs (9) and (10) of 30.1-10.1-01]. The definitions recognize that a disclaimer may be prepared in forms other than typewritten pages with a signature in pen. Because of the novelty of a disclaimer executed in electronic form and the ease with which the term “record” can be confused with recording of documents, the Act does not use the term “record” in isolation but refers to “writing or other record.” The delivery requirement is set forth in Section 2-1112 [N.D.C.C. § 30.1-10.1-09].

Subsection (d) [subsection (4)] specifically allows a partial disclaimer of an interest in property or of a power over property, and gives the disclaimant wide latitude in describing the portion disclaimed. For example, a residuary beneficiary of an estate may disclaim a fraction or percentage of the residue or may disclaim specific property included in the residue (all the shares of X corporation or a specific number of shares). A devisee or donee may disclaim specific acreage or an undivided fraction or carve out a life estate or remainder from a larger interest in real or personal property. (It must be noted, however, that a disclaimer by a devisee or donee which seeks to “carve out” a remainder or life estate is not a “qualified disclaimer” for tax purposes, Treas. Reg. § 25.2518-3(b).)

Subsection (e) [subsection (5)] makes the disclaimer irrevocable on the later to occur of (i) delivery or filing or (ii) its becoming effective under the section governing the disclaimer of the particular power or interest. A disclaimer must be “irrevocable” in order to be a qualified disclaimer for tax purposes. Since a disclaimer under this Act becomes effective at the time significant for tax purposes, a disclaimer under this Act will always meet the irrevocability requirement for tax qualification. The interaction of the Act and the requirements for a tax qualified disclaimer can be illustrated by analyzing a disclaimer of an interest in a revocable lifetime trust.

Example 1 . G creates a revocable lifetime trust which will terminate on G’s death and distribute the trust property to G’s surviving descendants by representation. G’s son, S, determines that he would prefer his share of G’s estate to pass to his descendants and executes a disclaimer of his interest in the revocable trust. The disclaimer is then delivered to G (see Section 2-1112(e)(3) [N.D.C.C. § 30.1-10.1-09(4)). The disclaimer is not irrevocable at that time, however, because it will not become effective until G’s death when the trust becomes irrevocable (see Section 2-1106(b)(1) [N.D.C.C. § 30.1-10.1-03(2)]). Because the disclaimer will not become irrevocable until it becomes effective at G’s death, S may recall the disclaimer before G’s death and, if he does so, the disclaimer will have no effect.

Subsection (f) [subsection (6)] restates the long standing rule that a disclaimer is a true refusal to accept and not an act by which the disclaimant transfers, assigns, or releases the disclaimed interest. This subsection states the effect and meaning of the traditional “relation back” doctrine of prior Acts. It also makes it clear that the disclaimed interest passes without direction by the disclaimant, a requirement of tax qualification.

DECISIONS UNDER PRIOR LAW

Analysis

Motive Underlying Renunciation.
Renunciation Not Fraudulent Transfer.
Section 50-24.1-02(1).

Motive Underlying Renunciation.

The motive underlying the renunciation is not relevant to the right to renounce. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157, 1986 N.D. LEXIS 428 (N.D. 1986).

Renunciation Not Fraudulent Transfer.

Absent an express statutory provision to the contrary, a renunciation is not treated as a fraudulent transfer of assets, and the renouncer’s creditors cannot on that ground claim any rights to the renounced property. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157 (N.D. 1986), decided prior to the 1987 amendment to N.D.C.C. § 50-24.1-02(1).

There is no valid distinction upon which to allow the department of human services to benefit by treating a renunciation as a transfer where the renouncer’s creditors and the tax department cannot. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157 (N.D. 1986), decided prior to the 1987 amendment to the section 50-24.1-02(1).

Section 50-24.1-02(1).

The legislature did not expressly make renunciation a disqualifying act under section 50-24.1-02(1), although it could have easily so provided; nor did it define the terms “assignment” or “transfer”. However, as commonly understood, those terms connoted an act of designating or conveying a thing from one person to another. One who assigned or transferred a property designated the assignee or transferee and the terms of the conveyance. In contrast, one who renounced a bequest or inheritance under this section could not designate the recipient or otherwise control the disposition of the renounced property. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157 (N.D. 1986), decided prior to the 1987 amendment to N.D.C.C. § 50-24.1-02(1).

Department of human services’ contention that benefit recipient’s interest in her deceased mother’s estate should be treated as an available resource or that her renunciation of it should be treated as a disqualifying transfer under section 50-24.1-02(1) was inconsistent with the requirement of prior version of this section that a renunciation relate back to the death of the decedent “for all purposes”. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157 (N.D. 1986), decided prior to the 1987 amendment to N.D.C.C. § 50-24.1-01(1).

30.1-10.1-03. (2-1106) Disclaimer of interest in property.

Except for disclaimers governed by sections 30.1-10.1-04 and 30.1-10.1-05, subsections 2 through 5 apply to a disclaimer of an interest in property.
The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the intestate’s death.
The disclaimed interest passes according to a provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
If the instrument does not contain a provision described in subsection 3 and if the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the distribution time. However, if by law or under the instrument the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the distribution time, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the distribution time, but a future interest held by the disclaimant does not accelerate in possession or enjoyment.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 3.

Editorial Board Comment.

Subsection (a) [these definitions are contained in N.D.C.C. § 30.1-10.1-01] defines two terms that are used only in Section 2-1106 [this section]. The first, “future interest,” is used in Section 2-1106(b)(4) [N.D.C.C. § 30.1-10.1-03(5)] in connection with the acceleration rule.

The second defined term, “time of distribution,” is used in determining to whom the disclaimed interest passes (see below). Possession or enjoyment is a term of art and means that time at which it is certain to whom the property belongs. It does not mean that the person actually has the property in hand. For example, the time of distribution of present interests created by will and all interests arising under the law of intestate succession is the death of the decedent. At that moment the heir or devisee is entitled to his or her devise or share, and it is irrelevant that time will pass before the will is admitted to probate and that actual receipt of the gift may not occur until the administration of the estate is complete. The time of distribution of present interests created by nontestamentary instruments generally depends on when the instrument becomes irrevocable. Because the recipient of a present interest is entitled to the property as soon as the gift is made, the time of distribution occurs when the creator of the interest can no longer take it back. The time of distribution of a future interest is the time when it comes into possession and the owner of the future interest becomes the owner of a present interest. For example, if B is the owner of the remainder interest in a trust which is to pay income to A for life, the time of distribution of B’s remainder is A’s death. At that time the trust terminated and B’s ownership of the remainder becomes outright ownership of the trust property.

Section 2-1106(b)(1) [N.D.C.C. § 30.1-10.1-03(2)] makes a disclaimer of an interest in property effective as of the time the instrument creating the interest becomes irrevocable or at the decedent’s death if the interest is created by intestate succession. A will and a revocable trust are irrevocable at the testator’s or settlor’s death. Inter vivos trusts may also be irrevocable at their creation or may become irrevocable before the settlor’s death. A beneficiary designation is also irrevocable at death, unless it is made irrevocable at an earlier time. This provision continues the provision of Uniform Acts on this subject, but with different wording. Previous Acts have stated that the disclaimer “relates back” to some time before the disclaimed interest was created. The relation back doctrine gives effect to the special nature of the disclaimer as a refusal to accept. Because the disclaimer “relates back,” the disclaimant is regarded as never having had an interest in the disclaimed property. A disclaimer by a devisee against whom there is an outstanding judgment will prevent the creditor from reaching the property the debtor would otherwise inherit. This Act continues the effect of the relation back doctrine, not by using the specific words, but by directly stating what the relation back doctrine has been interpreted to mean. Sections 2-1102(3) and 2-1105(f) [N.D.C.C. §§ 30.1-10.1-01(4) and 30.1-10.1-02(6)] taken together define a disclaimer as a refusal to accept which is not a transfer or release, and subsection (b)(1) [subsection (2)] of this section makes the disclaimer effective as of the time the creator cannot revoke the interest. Nothing in the statute, however, prevents the legislatures or the courts from limiting the effect of the disclaimer as refusal doctrine in specific situations or generally. See the Comments to Section 2-1113 [N.D.C.C. § 30.1-10.1-10] below.

Section 2-1106(b)(2) [N.D.C.C. § 30.1-10.1-03(3)] allows the creator of the instrument to control the disposition of the disclaimed interest by express provision in the instrument. The provision may apply to a particular interest. “I give to my cousin A the sum of ten thousand dollars ($10,000) and should he disclaim any part of this gift, I give the part disclaimed to my cousin B.” The provision may also apply to all disclaimed interests. A residuary clause beginning “I give my residuary estate, including all disclaimed interests to.... “ is such a provision.

Sections 2-1106(b)(3)(B), (C), and (D) [N.D.C.C. § 30.1-10.1-03(4)] apply if Section 2-1106(b)(2) [N.D.C.C. § 30.1-10.1-03(3)] does not and if the disclaimant is an individual. Because “disclaimant” is defined as the person to whom the disclaimed interest would have passed had the disclaimer not been made (Section 2-1102(1) [N.D.C.C. § 30.1-10.1-01(2)], these paragraphs would apply to disclaimers by fiduciaries on behalf of individuals. The general rule is that the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution defined in Section 2-1106(a)(2) [N.D.C.C. § 30.1-10.1-01(5)]. The application of this general rule to present interests given to named individuals is illustrated by the following examples:

Example 1(a). T’s will devised “ten thousand dollars ($10,000) to my brother, B.” B disclaims the entire devise. B is deemed to have predeceased T, and, therefore B’s gift has lapsed. If the State’s antilapse statute applies, it will direct the passing of the disclaimed interest. Under Section 2-603(b)(1) [N.D.C.C. § 30.1-09-05; however, North Dakota has not adopted the current UPC version of this section], for example, B’s descendants who survive T by 120 hours will take the devise by representation.

Example 1(b). T’s will devised “ten thousand dollars ($10,000) to my friend, F.” F disclaims the entire devise. F is deemed to predecease T and the gift has lapsed. Few antilapse statutes apply to devises to non-family members. Under Section 2-603(b), which saves from lapse only gifts made to certain relatives, the devise would lapse and pass through the residuary clause of the will.

Example 1(c). T’s will devised “ten thousand dollars ($10,000) to my brother, B, but if B does not survive me, to my children.” If B disclaims the devise, he will be deemed to have predeceased T and the alternative gift to T’s children will dispose of the devise.

Present interests are also given to the surviving members of a class or group of persons. Perhaps the most common example of this gift is a devise of the testator’s residuary estate “to my descendants who survive me by representation.” Under the system of distribution among multi-generational classes used in Section 2-709 [N.D.C.C. § 30.1-09.1-09], division of the property to be distributed begins in the eldest generation in which there are living people. The following example illustrates a problem that can arise.

Example 2(a). T’s will devised “the residue of my estate to my descendants who survive me by representation.” T is survived by son S and daughter D. Son has two living children and D has one. S disclaims his interest. The disclaimed interest is one-half of the residuary estate, the interest S would have received had he not disclaimed. Section 2-1106(b)(3)(B) [N.D.C.C. § 30.1-10.1-03(4)] provides that the disclaimed interest passes as if S had predeceased T. If Section 2-1106(b)(3) stopped there, S’s children would take one-half of the disclaimed interest and D would take the other half under Section 2-709 [N.D.C.C. § 30.1--09.1-09]. S’s disclaimer should not have that effect, however, but should pass what he would have taken to his children. Section 2- 1106(b)(3)(C) solves the problem. It provides that the entire disclaimed interest passes only to S’s descendants because they would share in the interest had S truly predeceased T.

The provision also solves a problem that exists when the disclaimant is the only representative of an older generation.

Example 2(b). Assume the same facts as Example 2(a), but D has predeceased T. T is survived, therefore, by S, S’s two children, and D’s child. S disclaims. Again, the disclaimed interest is one-half of the residuary estate and it passes as if S had predeceased T. Had S actually predeceased T, the three grandchildren of S would have shared equally in T’s residuary estate because they are all in the same generation. Were the three grandchildren to share equally in the disclaimed interest, S’s two children would each receive one-third of the one-half while D’s child would receive one-third of the one-half in addition to the one-half of the residuary estate received as the representative of his or her late parent. Section 2-1106(b)(3)(C) again applies to insure that S’s children receive one-half of the residue, exactly the interest S would have received but for the disclaimer.

The disclaimer of future interests created by will leads to a different problem. The effective date of the disclaimer of the future interest, the testator’s death, is earlier in time than the distribution date. This in turn leads to a possible anomaly illustrated by the following example.

Example 3. Father’s will creates a testamentary trust for Mother who is to receive all the income for life. At her death, the trust is to be distributed to Father and Mother’s surviving descendants by representation. Mother is survived by son S and daughter D. Son has two living children and D has one. Son decides that he would prefer his share of the trust to pass to his children and disclaims. The disclaimer must be made within nine months of Father’s death if it is to be a qualified disclaimer for tax purposes. Under prior Acts and former Section 2-801 [N.D.C.C. § 30.1-10-01, repealed], the interest would have passed as if Son had predeceased Father. A problem could arise if, at Mother’s death, one or more of S’s children living at that time were born after Father’s death. It would be possible to argue that had S predeceased Father the afterborn children would not exist and that D and S’s two children living at the time of Father’s death are entitled to all of the trust property.

The problem illustrated in Example 3 is solved by Section 2-1106(b)(3)(B). The disclaimed interest would have taken effect in possession or enjoyment, that is, Son would be entitled to receive one-half of the trust property, at Mother’s death. Under paragraph (3)(B) Son is deemed to have died immediately before Mother’s death even though under Section 2-1106(b)(1) the disclaimer is effective as of Father’s death. There is no doubt, therefore, that S’s children living at the distribution date, whenever born, are entitled to the share of the trust property S would have received and, as Examples 2(a) and 2(b) show, they will take exactly what S would have received but for the disclaimer. Had S actually died before Mother, he would have received nothing at Mother’s death whether or not the disclaimer had been made. There is nothing to pass to S’s children and they take as representatives of S under the representational scheme in effect.

Future interests may or may not be conditioned on survivorship. The following examples illustrate disclaimers of future interests not expressly conditioned on survival.

Example 4(a). G’s revocable trust directs the trustee to pay “ten thousand dollars ($10,000) to the grantor’s brother, B” at the termination of the trust on G’s death. B disclaims the entire gift immediately after G’s death. B is deemed to have predeceased G because it is at G’s death that the interest given B will come into possession and enjoyment. Had B not disclaimed he would have received $10,000 at that time. The recipient of the disclaimed interest will be determined by the law that applies to gifts of future interests to persons who die before the interest comes into possession and enjoyment. Traditional analysis would regard the gift to B as a vested interest subject to divestment by G’s power to revoke the trust. So long as G has not revoked the gift, the interest would pass through B’s estate to B’s successors in interest. Yet If B’s successors in interest are selected by B’s will, the disclaimer cannot be a qualified disclaimer for tax purposes. This problem does not arise in a jurisdiction with Section 2-707(b) [N.D.C.C. § 30.1-09.1-07(2)], because the interest passes not through B’s estate but rather to B’s descendants who survive G by 120 hours by representation. Because the antilapse mechanism of Section 2-707 [N.D.C.C. § 30.1-09.1-07] is not limited to gifts to relatives, a disclaimer by a friend rather than a brother would have the same result. For jurisdictions without Section 2-707, however, Section 2-1106(b)(3)(D) [N.D.C.C. § 30.1-10.1-03(4)] provides an equivalent solution: a disclaimed interest that would otherwise pass through B’s estate instead passes to B’s descendants who survive G by representation.

Example 4(b). G’s revocable trust directed that on his death the trust property is to be distributed to his three children, A, B, and C. A disclaims immediately after G’s death and is deemed to predecease the distribution date, which is G’s death. The traditional analysis applies exactly as it does in Example 4(a). The only condition on A’s gift would be G’s not revoking the trust. A is not explicitly required to survive G. (See First National Bank of Bar Harbor v. Anthony, 557 A.2d 957 (Me. 1989).) The interest would pass to A’s successors in interest. If those successors are selected by A’s will, the disclaimer cannot be a qualified disclaimer for tax purposes. Section 2-707(b) provides that A’s interest passes by representation to A’s descendants who survive G by 120 hours. For jurisdiction

Example 4(c). G conveys land “to A for life, remainder to B.” B disclaims immediately after the conveyance. Traditional analysis regards B’s remainder as vested; it is not contingent on surviving A. This classification is unaffected by whether or not the jurisdiction has adopted Section 2-707, because that section only applies to future interests in trust; it does not apply to future interests not in trust, such as the one in this example created directly in land. To the extent that B’s remainder is transmissible through B’s estate, B’s disclaimer cannot be a qualified disclaimer for tax purposes. Section 2-1106(b)(3)(D) resolves the problem: a disclaimed interest that would otherwise pass through B’s estate instead passes as if it were controlled by Sections 2-707 and 2-711 [N.D.C.C. § 30.1-09.1-11]. Because Section 2-707 only applies to future interests in trust, jurisdictions enacting Section 2-1106 should enact Section 2-1106(b)(3)(D) whether or not they have enacted Section 2-707.

Section 2-1106(b)(3)(A) provides a rule for the passing of property interests disclaimed by persons other than individuals. Because Section 2-1108 [N.D.C.C. § 30.1-10.1-05] applies to disclaimers by trustees of property that would otherwise pass to the trust, Section 2-1106(b)(3)(A) principally applies to disclaimers by corporations, partnerships, and the other entities listed in the definition of “person” in Section 2-1102(6) [the definition of “person” is not included in North Dakota’s version]. A charity, for example, might wish to disclaim property the acceptance of which would be incompatible with its purposes.

Section 2-1106(b)(4) [subsection (5)] continues the provision of prior Uniform Acts and former Section 2-801 [N.D.C.C. § 30.1-10-01, repealed] on this subject providing for the acceleration of future interests on the making of the disclaimer, except that future interests in the disclaimant do not accelerate. The workings of Section 2-1106(b)(4) are illustrated by the following examples.

Example 5(a). Father’s will creates a testamentary trust to pay income to his son S for his life, and on his death to pay the remainder to S’s descendants then living, by representation. If S disclaims his life income interest in the trust, he will be deemed to have died immediately before Father’s death. The disclaimed interest, S’s income interest, came into possession and enjoyment at Father’s death as would any present interest created by will (see Examples 1(a), (b), and (c)), and, therefore, the time of distribution is Father’s death. If at the income beneficiary of a testamentary trust does not survive the testator, the income interest is not created and the next interest in the trust takes effect. Since the next interest in Father’s trust is the remainder in S’s descendants, the trust property will pass to S’s descendants who survive Father by representation. It is immaterial under the statute that the actual situation at the S’s death might be different with different descendants entitled to the remainder.

Example 5(b). Mother’s will creates a testamentary trust to pay the income to her daughter D until she reaches age 35 at which time the trust is to terminate and the trust property distributed in equal shares to D and her three siblings. D disclaims her income interest. The remainder interests in her three siblings accelerate and they each receive one-fourth of the trust property. D’s remainder interest does not accelerate, however, and she must wait until she is 35 to receive her fourth of the trust property.

2006 Technical Amendment. By technical amendment, subsection (b)(3)(D) [North Dakota’s version does not include this paragraph] was added to resolve the problem of future interests transmissible through the disclaimant’s estate. The Comment was correspondingly amended. For the prior version, see 8 U.L.A. 65-69 (Supp. 2005).

Notes to Decisions

Exclusions.

Trial court did not err in holding that the granddaughters of a decedent’s half-sister inherited the intestate estate of the decedent because even though the decedent expressly excluded the half-sister under the will, it could not be inferred that the decedent intended to exclude the granddaughters; the residuary of the estate was to pass as though the half-sister disclaimed the intestate share under N.D.C.C. § 30.1-10.1-03(4). West v. Myrvik (In re Estate of Samuelson), 2008 ND 190, 757 N.W.2d 44, 2008 N.D. LEXIS 192 (N.D. 2008).

DECISIONS UNDER PRIOR LAW

Date of Decedent’s Death.

Prior version of this section provides for no exceptions to treating a renunciation as relating back to the date of the death of decedent. Nielsen v. Cass County Social Servs. Bd., 395 N.W.2d 157, 1986 N.D. LEXIS 428 (N.D. 1986).

30.1-10.1-04. (2-1107) Disclaimer of rights of survivorship in jointly held property.

Upon the death of a holder of jointly held property, a surviving holder may disclaim in whole or in part the greater of a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates or all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
The disclaimer under subsection 1 takes effect as of the death of the holder to whose death the disclaimer relates.
An interest disclaimed by a surviving holder of jointly held property passes as if the person whose interest is being disclaimed predeceased the holder to whose death the disclaimer relates.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 4.

Editorial Board Comment.

The various forms of ownership in which “joint property,” as defined in Section 2-1102(5) [N.D.C.C. § 30.1-10.1-01(8)], can be held include common law joint tenancies and any statutory variation that preserves the right of survivorship. The common law was unsettled whether a surviving joint tenant had any right to renounce his interest in jointly-owned property and if so to what extent. See Casner, Estate Planning, 5th ed. § 10.7. Specifically, if A and B owned real estate or securities as joint tenants with right of survivorship and A died, the problem was whether B might disclaim what was given to him originally upon creation of the estate, or, if not, whether he could nevertheless reject the incremental portion derived through the right of survivorship. There was also a question of whether a joint bank account should be treated differently from jointly-owned securities or real estate for the purpose of disclaimer.

This common law of disclaimers of jointly held property must be set against the rapid developments in the law of tax qualified disclaimers of jointly held property. Since the previous Uniform Acts were drafted, the law regarding tax qualified disclaimers of joint property interests has been clarified. Courts have repeatedly held that a surviving joint tenant may disclaim that portion of the jointly held property to which the survivor succeeds by operation of law on the death of the other joint tenant so long as the joint tenancy was severable during the life of the joint tenants (Kennedy v. Commissioner, 804 F.2d 1332 (7th Cir. 1986), McDonald v. Commissioner, 853 F.2d 1494 (9th Cir. 1988), Dancy v. Commissioner, 872 F.2d 84 (4th Cir. 1989).) On December 30, 1997 the Service published T.D. 8744 making final proposed amendments of the Regulations under IRC § 2518 to reflect the decisions regarding disclaimers of joint property interests.

The amended final Regulations, § 25.2518-2(c)(4)(i) allow a surviving joint tenant or tenant by the entireties to disclaim that portion of the tenancy to which he or she succeeds upon the death of the first joint tenant (1/2 where there are two joint tenants) whether or not the tenancy could have been unilaterally severed under local law and regardless of the proportion of consideration furnished by the disclaimant. The Regulations also create a special rule for joint tenancies between spouses created after July 14, 1988 where the spouse of the donor is not a United States citizen. In that case, the donee spouse may disclaim any portion of the joint tenancy includible in the donor spouse’s gross estate under IRC § 2040, which creates a contribution rule. Thus the surviving non-citizen spouse may disclaim all of the joint tenancy property if the deceased spouse provided all the consideration for the tenancy’s creation.

These developments in the tax law of disclaimers are reflected in subsection (a) [subsection (1)]. The subsection allows a surviving holder of jointly held property to disclaim the greater of the accretive share, the part of the jointly held property which augments the survivor’s interest in the property, and all of the property that it not attributable to the disclaimant’s contribution to the jointly held property. In the usual joint tenancy or tenancy by the entireties between husband and wife, the survivor will always be able to disclaim one-half the property. If the disclaimer conforms to the requirements of IRC § 2518, it will be a qualified disclaimer. In addition the surviving spouse can disclaim all of the property attributable to the decedent’s contribution, a provision which will allow the non-citizen spouse to take advantage of the contribution rule of the final Regulations. The contribution rule of subsection (a)(2) [subsection (1), 2nd cl.] will also allow surviving holders of joint property arrangements other than joint tenancies to make a tax qualified disclaimer under the rules applicable to those joint arrangements. For example, if A contributes 60% and B contributes 40% to a joint bank account and they allow the interest on the funds to accumulate, on B’s death A can disclaim 40% of the account; on A’s death B can disclaim 60% of the account. (Note that under subsection (a)(1) A can disclaim up to 50% of the account on B’s death because there are two joint account holders, but the disclaimer would not be fully tax qualified. As previously noted, a tax qualified disclaimer is limited to 40% of the account.) If the account belonged to the parties during their joint lives in proportion to their contributions, the disclaimers in this example can be tax qualified disclaimers if all the requirements of IRC § 2518 are met.

Subsection (b) [subsection (2)] provides that the disclaimer is effective as of the death of the joint holder which triggers the survivorship feature of the joint property arrangement. The disclaimant, therefore, has no interest in and has not transferred the disclaimed interest.

Subsection (c) [subsection (3)] provides that the disclaimed interest passes as if the disclaimant had predeceased the holder to whose death the disclaimer relates. Where there are two joint holders, a disclaimer by the survivor results in the disclaimed property passing as part of the deceased joint holder’s estate because under this subsection, the deceased joint holder is the survivor as to the portion disclaimed. If a married couple owns the family home in joint tenancy, therefore, a disclaimer by the survivor under subsection (a)(1) results in one-half the home passing through the decedent’s estate. The surviving spouse and whoever receives the interest through the decedent’s estate are tenants in common in the house. In the proper circumstances, the disclaimed one-half could help to use up the decedent’s unified credit. Without the disclaimer, the interest would automatically qualify for the marital deduction, perhaps wasting part of the decedent’s applicable exclusion amount.

In a multiple holder joint property arrangement, the disclaimed interest will belong to the other joint holder or holders.

Example 1. A, B, and C make equal contributions to the purchase of Blackacre, to which they take title as joint tenants with right of survivorship. On partition each would receive 1/3 of Blackacre and any of them could convert his or her interest to a 1/3 tenancy in common by unilateral severance (which, of course, would have to be accomplished in accordance with state law). On A’s death, B and C may each, if they wish, disclaim up to 1/3 of the property under section (a)(1). Should one of them disclaim the full 1/3, the disclaimant will be deemed to predecease A.

Assume that B so disclaims. With respect to the 1/3 undivided interest that now no longer belongs to A the only surviving joint holder is C. C therefore owns that 1/3 as tenant in common with the joint tenancy. Should C predecease B, the 1/3 tenancy in common interest will pass through C’s estate and B will be the sole owner of an undivided 2/3 interest in Blackacre as the survivor of the joint tenancy. Should B predecease C, C will be the sole owner of Blackacre in fee simple absolute.

Alternatively, assume that both B and C make valid disclaimers after A’s death. They are both deemed to predeceased A, A is the sole survivor of the joint tenancy and Blackacre passes through A’s estate.

Finally, assume that A provided all the consideration for the purchase of Blackacre. On A’s death, B and C can each disclaim the entire property under subsection (a)(2). If they both do so, Blackacre will pass through A’s estate. If only one of B or C disclaims the entire property, the one who does not will be the sole owner of Blackacre as the only surviving joint tenant. Such a disclaimer would not be completely tax qualified, however. The Regulations limit a tax qualified disclaimer to no more than 1/3 of the property. If, however, B or C were the first to die, A could still disclaim the 1/3 interest that no longer belongs to the decedent under subsection (a)(1), the disclaimer would be a qualified disclaimer for tax purposes under the Regulations, and the result is that the other surviving joint tenant owns 1/3 of Blackacre as tenant in common with the joint tenancy.

2004 Amendment. This comment was amended in 2004 to correct an error in the joint bank account example and to provide a more complete explanation for the result in Example 1.

DECISIONS UNDER PRIOR LAW

Surviving Spouse.

Where the surviving spouse disclaimed his interest in farmland, only the children had an interest in the property, and their signatures were essential for substantial compliance with federal requirements for special use valuation of the property. McDonald v. Commissioner, 853 F.2d 1494, 1988 U.S. App. LEXIS 11260 (8th Cir. 1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1639, 104 L. Ed. 2d 155, 1989 U.S. LEXIS 1686 (U.S. 1989).

For the purpose of avoiding federal gift tax consequences, the time period in which a surviving spouse could disclaim a survivorship interest began to run at the death of the joint tenant and not at the creation of the joint tenancy. McDonald v. Commissioner, 853 F.2d 1494, 1988 U.S. App. LEXIS 11260 (8th Cir. 1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1639, 104 L. Ed. 2d 155, 1989 U.S. LEXIS 1686 (U.S. 1989).

30.1-10.1-05. (2-1108) Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 5.

Editorial Board Comment.

This section deals with disclaimer of a right to receive property into a trust, and thus applies only to trustees. (A disclaimer of a right to receive property by a fiduciary acting on behalf of an individual, such as a personal representative, conservator, guardian, or agent is governed by the section of the statute applicable to the type of interest being disclaimed.) The instrument under which the right to receive the property was created may govern the disposition of the property in the event of a disclaimer by providing for a disposition when the trust does not exist. When the instrument does not make such a provision, the doctrine of resulting trust will carry the property back to the donor. The effect of the actions of cotrustees will depend on the state law governing the action of multiple trustees. Every disclaimer by a trustee must be compatible with the trustee’s fiduciary obligations.

30.1-10.1-06. (2-1109) Disclaimer of powers of appointment and other powers not held in fiduciary capacity.

If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the date of the last exercise of the power.
If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the instrument creating the power is construed as if the power ceased to exist when the disclaimer became effective.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 6.

Editorial Board Comment.

Section 2-1105(a) [N.D.C.C. § 30.1-10.1-02(1)] authorizes a person to disclaim an interest in or power over property. Section 2-1109 [this section] provides rules for disclaimers of powers which are not held in a fiduciary capacity. The most common non-fiduciary power is a power of appointment. Section 2-1105(a) also authorizes the partial disclaimer of a power as well as of an interest. For example, the disclaimer could be of a portion of the power to appoint one’s self, while retaining the right to appoint to others. The effect of a disclaimer of a power under Section 2-1109 depends on whether or not the holder has exercised the power and on what sort of power is held. If a holder disclaims a power before exercising it, the power expires and can never be exercised. If the power has been exercised, the power is construed as having expired immediately after its last exercise by the holder. The disclaimer affects only the holder of the power and will not affect other aspects of the power.

Example 1. T creates a testamentary trust to pay the income to A for life, remainder as A shall appoint by will among her descendants living at A’s death and four named charities. If A does not exercise her power, the remainder passes to her descendants living at her death by representation. A disclaims the power. The power can no longer be exercised and on A’s death the remainder will pass to the takers in default.

30.1-10.1-07. (2-1110) Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

The disclaimer by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
A disclaimer by the object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 7.

Editorial Board Comment.

This section governs disclaimers by those who may or do receive an interest in property through the exercise of a power of appointment. At the time of the creation of a power of appointment, the creator of the power, besides giving the power to the holder of the power, can also limit the objects of the power (the permissible appointees of the property subject to the power) and also name those who are to take if the power is not exercised, persons referred to as takers in default.

This section provides rules for disclaimers by all of these persons: subsection (a) [subsection (1)] is concerned with a disclaimer by a person who actually receives an interest in property through the exercise of a power of appointment, and subsection (b) [subsection (2)] recognizes a disclaimer by a taker in default or permissible appointee before the power is exercised. These two situations are quite different. An appointee is in the same position as any devisee or beneficiary of a trust. He or she may receive a present or future interest depending on how the holder of the power exercises it. Subsection (a) therefore, makes the disclaimer effective as of the time the instrument exercising the power—giving the interest to the disclaimant—becomes irrevocable. If the holder of the power created an interest in the appointee, the effect of the disclaimer is governed by Section 2-1106 [N.D.C.C. § 30.1-10.1-03]. If the holder created another power in the appointee, the effect of the disclaimer is governed by Section 2-1109 [N.D.C.C. § 30.1-10.1-06].

Example 1. Mother’s will creates a testamentary trust for daughter D. The trustees are to pay all income to D for her life and have discretion to invade principal for D’s maintenance. On D’s death she may appoint the trust property by will among her then living descendants. In default of appointment the property is to be distributed by representation to D’s descendants who survive her. D is the donee, her descendants are the permissible appointees and the takers in default. D exercises her power by appointing the trust property in three equal shares to her children A, B, and C. The three children are the appointees. A disclaims. Under subsection (a) A’s disclaimer is effective as of D’s death (the time at which the will exercising the power became irrevocable). Because A disclaimed an interest in property, the effect of the disclaimer is governed by Section 2-1106(b) [N.D.C.C. § 30.1-10.1-03(2) and (3)]. If D’s will makes no provisions for the disposition of the interest should it be disclaimed or of disclaimed interests in general (Section 2-1106(b)(2) [N.D.C.C. § 30.1-10.1-03(3)]), the interest passes as if A predeceased the time of distribution which is D’s death. An appointment to a person who is dead at the time of the appointment is ineffective except as provided by an antilapse statute. See Restatement, Second, Property (Donative Transfers) § 18.5. The Restatement, Second, Property (Donative Transfers), § 18.6 suggests that any requirement of the antilapse statute that the deceased devisee be related in some way to the testator be applied as if the appointive property were owned either by the donor or the holder of the power. (See also Restatement, Third, Property (Wills and Other Donative Transfers) § 5.5, Comment l.) That is the position taken by Section 2-603 [N.D.C.C. § 30.1-09-05]. Since antilapse statutes usually apply to devises to children and grandchildren, the disclaimed interest would pass to A’s descendants by representation.

A taker in default or a permissible object of appointment is traditionally regarded as having a type of future interest. See Restatement, Second, Property (Donative Transfers) § 11.2, Comments c and d. The future interest will come into possession and enjoyment when the question of whether or not the power is to be exercised is resolved. For testamentary powers that time is the death of the holder.

Subsection (b) [subsection (2)] provides that a disclaimer by an object or taker in default takes effect as of the time the instrument creating the power becomes effective. Because the disclaimant is disclaiming an interest in property, albeit a future interest, the effect of the disclaimer is governed by Section 2-1106 [N.D.C.C. § 30.1-10.1-03]. The effect of these rules is illustrated by the following examples.

Example 2(a). The facts are the same as Example 1, except A disclaims before D’s death and D’s will does not exercise the power. Under subsection (b) A’s disclaimer is effective as of Mother’s death which is the time when the instrument creating the power, Mother’s will, became irrevocable. Because A disclaimed an interest in property, the effect of the disclaimer is governed by Section 2-1106(b) [N.D.C.C. § 30.1-10.1-03(2) and (3)]. If Mother’s will makes no provision for the disposition of the interest should it be disclaimed or of disclaimed interests in general (Section 2-1106(b)(2) [N.D.C.C. 30.1-10.1-03(3)]), the interest passes and under Section 2-1106(b)(3) [N.D.C.C. § 30.1-10.1-03(4)] as if the disclaimant had died immediately before the time of distribution. Thus, A is deemed to have died immediately before D’s death which is the time of distribution. If A actually survives D, the disclaimed interest is one-third of the trust property; it will pass as if A predeceased D, and the result is the same as in Example 1. If A does predecease D he would have received nothing and there is no disclaimed interest. The disclaimer has no effect on the passing of the trust property.

Example 2(b). The facts are the same as in Example 2(a) except D does exercise her power of appointment to give one-third of the trust property to each of her three children, A, B, and C. A’s disclaimer means the disclaimed interest will pass as if he predeceased D and the result is the same as in Example 1.

In addition, if all the objects and takers in default disclaim before the power is exercised the power of appointment is destroyed. See Restatement, Second, Property (Donative Transfers) § 12.1, Comment g.

30.1-10.1-08. (2-1111) Disclaimer of powers held in fiduciary capacity.

If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
A disclaimer under this section is effective as to other fiduciaries if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 8.

Editorial Board Comment.

This section governs disclaimers by fiduciaries of powers held in their fiduciary capacity. Examples include a right to remove and replace a trustee or a trustee’s power to make distributions of income or principal. Such disclaimers have not been specifically dealt with in prior Uniform Acts although they could prove useful in several situations. A trustee who is also a beneficiary may want to disclaim a power to invade principal for himself for tax purposes. A trustee of a trust for the benefit for a surviving spouse who also has the power to invade principal for the decedent’s descendants may wish to disclaim the power in order to qualify the trust for the marital deduction. (The use of a disclaimer in just that situation was approved in Cleaveland v. U.S., 62 A.F.T.R.2d 88-5992, 88-1 USTC ¶13,766 (C. D. Ill. 1988).)

The section refers to fiduciary in the singular. It is possible, of course, for a trust to have two or more co-trustees and an estate to have two or more co-personal representatives. This Act leaves the effect of actions of multiple fiduciaries to the general rules in effect in each State relating to multiple fiduciaries. For example, if the general rule is that a majority of trustees can make binding decisions, a disclaimer by two of three co-trustees of a power is effective. A dissenting co-trustee could follow whatever procedure state law prescribes for disassociating him or herself from the action of the majority. A sole trustee burdened with a power to invade principal for a group of beneficiaries including him or herself who wishes to disclaim the power but yet preserve the possibility of another trustee exercising the power would seek the appointment of a disinterested co-trustee to exercise the power and then disclaim the power for him or herself. The subsection thus makes the disclaimer effective only as to the disclaiming fiduciary unless the disclaimer states otherwise. If the disclaimer does attempt to bind other fiduciaries, be they cofiduciaries or successor fiduciaries, the effect of the disclaimer will depend on local law.

As with any action by a fiduciary, a disclaimer of fiduciary powers must be compatible with the fiduciary’s duties.

30.1-10.1-09. (2-1112) Delivery.

In subsections 2 through 11, delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, a disclaimer must be delivered to the personal representative of the decedent’s estate, or if a personal representative is not then serving, it must be filed with the court having jurisdiction to appoint the personal representative.
In the case of an interest in a testamentary trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, to the personal representative of the decedent’s estate, or if a personal representative is not then serving, it must be filed with a court having jurisdiction to enforce the trust.
In the case of an interest in an inter vivos trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, it must be filed with a court having jurisdiction to enforce the trust, or if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
In the case of an interest created by a beneficiary designation which is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.
In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable, a disclaimer of an interest in personal property must be delivered to the person obligated to distribute the interest and the disclaimer of an interest in real property must be recorded in the office of the county recorder of the county where the real property that is the subject of the disclaimer is located.
In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
In the case of a disclaimer by an object or taker in default of exercise of a power of appointment, the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.
In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, to the holder, personal representative of the holder’s estate, or to the fiduciary under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.
In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection 2, 3, or 4, as if the power disclaimed were an interest in property.
In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal’s representative.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 9; 2011, ch. 241, § 1.

Effective Date.

The 2011 amendment of this section by section 1 of chapter 241, S.L. 2011 became effective August 1, 2011.

Editorial Board Comment.

The rules set forth in this section are designed so that anyone who has the duty to distribute the disclaimed interest will be notified of the disclaimer. For example, a disclaimer of an interest in an decedent’s estate must be delivered to the personal representative of the estate. A disclaimer is required to be filed in Court only when there is no one person or entity to whom delivery can be made.

30.1-10.1-10. (2-1113) When disclaimer barred or limited.

A disclaimer is barred by a written waiver of the right to disclaim.
A disclaimer of an interest in property is barred if before the disclaimer becomes effective the disclaimant accepts the interest sought to be disclaimed; the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or makes a contract to do so; or, a judicial sale of the interest sought to be disclaimed occurs.
A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its past exercise unless the power is exercisable in favor of the disclaimant.
A disclaimer is barred or limited if so provided by law other than this chapter.
A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of title 26 of the United States Code or regulations promulgated under that title, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 10.

Editorial Board Comment.

The 1978 Act required that an effective disclaimer be made within nine months of the event giving rise to the right to disclaim (e.g., nine months from the death of the decedent or donee of a power or the vesting of a future interest). The nine month period corresponded in some situations with the Internal Revenue Code provisions governing qualified tax disclaimers. Under the common law an effective disclaimer had to be made only within a “reasonable” time.

This Act specifically rejects a time requirement for making a disclaimer. Recognizing that disclaimers are used for purposes other than tax planning, a disclaimer can be made effectively under the Act so long as the disclaimant is not barred from disclaiming the property or interest or has not waived the right to disclaim. Persons seeking to make tax qualified disclaimers will continue to have to conform to the requirements of the Internal Revenue Code.

The events resulting in a bar to the right to disclaim set forth in this section are similar to those found in the 1978 Acts and former Section 2-801 [N.D.C.C. § 30.1-10-01, repealed]. Subsection (a) [subsection (1)] provides that a written waiver of the right to disclaim is effective to bar a disclaimer. Such a waiver might be sought, for example, by a creditor who wishes to make sure that property acquired in the future will be available to satisfy the debt.

Whether particular actions by the disclaimant amount to accepting the interest sought to be disclaimed within the meaning of subsection (b)(1) [subsection (2), 1st cl.] will necessarily be determined by the courts based upon the particular facts. (See Leipham v. Adams, 77 Wash. App. 827, 894 P.2d 576 (1995); Matter of Will of Hall, 318 S.C. 188, 456 S.E.2d 439 (Ct. App. 1995); Jordan v. Trower, 208 Ga. App. 552, 431 S.E.2d 160 (1993); Matter of Gates, 189 A.D.2d 427, 595 N.Y.S.2d 194 (3d Dept. 1993); “What Constitutes or Establishes Beneficiary’s Acceptance or Renunciation of Devise or Bequest,” 93 ALR2d 8).

The addition in this Act of the word “voluntary” to the list of actions barring a disclaimer which also appears in the earlier Acts reflects the numerous cases holding that only actions by the disclaimant taken after the right to disclaim has arisen will act as a bar. (See Troy v. Hart, 116 Md. App. 468, 697 A.2d 113 (1997), Estate of Opatz, 554 N.W.2d 813 (N.D. 1996), Frances Slocum Bank v. Martin, 666 N.E.2d 411 (Ind. App. 1996), Brown v. Momar, Inc., 201 Ga. App. 542, 411 S.E.2d 718 (1991), Tompkins State Bank v. Niles, 127 Ill.2d 209, 130 Ill. Dec. 207, 537 N.E.2d 274 (1989).) An existing lien, therefore, will not prevent a disclaimer, although the disclaimant’s actions before the right to disclaim arises may work an estoppel. See Hale v. Bardouh, 975 S.W.2d 419 (Tex. Ct. App. 1998). With regard to joint property, the event giving rise to the right to disclaim is the death of a joint holder, not the creation of the joint interest and any benefit received during the deceased joint tenant’s life is ignored.

The reference to judicial sale in subsection (b)(3) [subsection (2), 3rd cl.] continues a provision from the earlier Acts and ensures that title gained from a judicial sale by a personal representative will not be clouded by a possible disclaimer.

Subsection (c) rephrases the rules of Section 2-1111 [N.D.C.C. § 30.1-10.1-08] governing the effect of disclaimers of powers.

Subsection (d) [subsection (4)] is applicable to powers which can be disclaimed under Section 2-1109 [N.D.C.C. § 30.1-10.1-06]. It bars the disclaimer of a general power of appointment once it has been exercised. A general power of appointment allows the holder to take the property subject to the power for him or herself, whether outright or by using it to pay his or her creditors (for estate and gift tax purposes, a general power is one that allows the holder to appoint to himself, his estate, his creditors, or the creditors of his estate). The power is presently exercisable if the holder need not wait to some time or for some event to occur before exercising the power. If the holder has exercised such a power, it can no longer be disclaimed.

Subsection (e) [subsection (5)], unlike the 1978 Act, specifies that “other law” may bar the right to disclaim. Some States, including Minnesota (M.S.A. § 525.532 (c)(6)), Massachusetts (Mass. Gen. Law c. 191A, § 8), and Florida (Fla. Stat. § 732.801(6)), bar a disclaimer by an insolvent disclaimant. In others a disclaimer by an insolvent debtor is treated as a fraudulent “transfer”. See Stein v. Brown, 18 Ohio St. 3d 305 (1985); Pennington v. Bigham, 512 So.2d 1344 (Ala. 1987). A number of States refuse to recognize a disclaimer used to qualify the disclaimant for Medicaid or other public assistance. These decisions often rely on the definition of “transfer” in the federal Medical Assistance Handbook which includes a “waiver” of the right to receive an inheritance (see 42 U.S.C.A. § 1396p(e)(1)). See Hinschberger v. Griggs County Social Services, 499 N.W.2d 876 (N.D. 1993); Department of Income Maintenance v. Watts, 211 Conn. 323 (1989), Matter of Keuning, 190 A.D.2d 1033, 593 N.Y.S.2d 653 (4th Dept. 1993), and Matter of Molloy, 214 A.D.2d 171, 631 N.Y.S.2d 910 (2nd Dept. 1995), Troy v. Hart, 116 Md. App. 468, 697 A.2d 113 (1997), Tannler v. Wisconsin Dept. of Health & Social Services, 211 Wis. 2d 179, 564 N.W.2d 735 (1997); but see, Estate of Kirk, 591 N.W.2d 630 (Iowa, 1999)(valid disclaimer by executor of surviving spouse who was Medicaid beneficiary prevents recovery by Medicaid authorities). It is also likely that state policies will begin to address the question of disclaimers of real property on which an environmental hazard is located in order to avoid saddling the State, as title holder of last resort, with the resulting liability, although the need for fiduciaries to disclaim property subject to environmental liability has probably been diminished by the 1996 amendments to CERCLA by the Asset Conservation Act of 1996 (PL 104-208). These larger policy issues are not addressed in this Act and must, therefore, continue to be addressed by the various States. On the federal level, the United States Supreme Court has held that valid disclaimer does not defeat a federal tax lien levied under IRC § 6321, Dyre, Jr. v. United States, 528 U.S. 49, 120 S. Ct. 474 (1999).

Subsection (f) [subsection (6)] provides a rule stating what happens if an attempt is made to disclaim a power or property interest whose disclaimer is barred by this section. A disclaimer of a power is ineffective, but the attempted disclaimer of the property interest, although invalid as a disclaimer, will operate as a transfer of the disclaimed property interest to the person or persons who would have taken the interest had the disclaimer not been barred. This provision removes the ambiguity that would otherwise be caused by an ineffective refusal to accept property. Whoever has control of the property will know to whom to deliver it and the person attempting the disclaimer will bear any transfer tax consequences. [North Dakota’s provision includes as subsection (7) a paragraph not included in the UPC.]

DECISIONS UNDER PRIOR LAW

Analysis

Actions Barring Renunciation.
Third Party Actions.

Actions Barring Renunciation.

Only an encumbrance created by an act of the person attempting to disclaim bars renunciation. Speldrich v. Speldrich (In re Estate of Opatz), 554 N.W.2d 813, 1996 N.D. LEXIS 238 (N.D. 1996).

Third Party Actions.

The judgment lien and garnishment proceedings instituted by a third party against the devised property did not constitute encumbrances barring devisee’s right to renounce her interest in the property. Speldrich v. Speldrich (In re Estate of Opatz), 554 N.W.2d 813, 1996 N.D. LEXIS 238 (N.D. 1996).

30.1-10.1-11. (2-1115) Recording of disclaimer.

If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Except as required in subsection 6 of section 30.1-10.1-09, failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

Source:

S.L. 2001, ch. 301, § 1; 2011, ch. 241, § 2.

Effective Date.

The 2011 amendment of this section by section 2 of chapter 241, S.L. 2011 became effective August 1, 2011.

Editorial Board Comment.

This section permits the recordation of a disclaimer of an interest in property ownership of or title to which is the subject of a recording system. This section expands on the corresponding provision of previous Uniform Acts which only referred to permissive recording of a disclaimer of an interest in real property. While local practice may vary, disclaimants should realize that in order to establish the chain of title to real property, and to ward off creditors and bona fide purchasers, the disclaimer may have to be recorded. This section does not change the law of the state governing notice.

30.1-10.1-12. (2-1116, 2-1117) Applicability.

This chapter does not limit the right of a person to waive, release, disclaim, or renounce property or an interest in or power over property under any law other than this chapter.
This chapter applies to any interest in or power over property, whenever created.
Except as otherwise provided in section 30.1-10.1-10, an interest in or power over property existing on August 1, 2001, as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after August 1, 2001.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

Source:

S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 11.

Editorial Board Comment.

[Section 2-1116 is adopted as subsection (3) of this section. Comment to 2-1116] This section deals with the application of the Act to existing interests and powers. It insures that disclaimers barred by the running of a time period under prior law will not be revived by the Act. For example, assume prior law, like the prior Acts and former Section 2-801 [N.D.C.C. § 30.1-10-01, repealed], allows the disclaimer of present interests within nine months of their creation and the disclaimer of future interests nine months after they are indefeasibly vested. Under T’s will, X receives an outright devise of a sum of money and also has a contingent remainder in a trust created under the will. The Act is effective in the jurisdiction governing the administration of T’s estate ten months after T’s death. X cannot disclaim the general devise, irrespective of the application of Section 2-1113 [N.D.C.C. § 30.1-10.1-10], because the nine months allowed under prior law have run. The contingent remainder, however, may be disclaimed so long as it is not barred under Section 2-1113 without regard to the nine month period of prior law.

[Section 2-1117 is adopted as subsection (4) of this section. Comment to 2-1117] This section adopts standard language approved by the Uniform Law Conference that is intended to preempt application of the federal Electronic Signatures in Global and National Commerce Act of 2000 (E-Sign). Section 102(a)(2)(B) of that Act provides that the federal law can be preempted by a later statute of the State that specifically refers to the federal law. Not subject to preemption by the states are E-Sign’s consumer consent provisions (Section 101(c)) and its notice provisions (Section 103(b)), neither of which have substantive impact on the Disclaimers Act. The effect of this Section is to reaffirm state authority over the formal requirements for the making of a disclaimer. For these requirements, see Section 2-1105 [N.D.C.C. § 30.1-10.1-02], and, specifically, Section 2-1105(c) [N.D.C.C. § 30.1-10.1-02(4)], which allow a disclaimer to be made by means of a signed record.

CHAPTER 30.1-11 Custody and Deposit of Wills

30.1-11-01. (2-515) Deposit of will in testator’s lifetime.

A will may be deposited by the testator or the testator’s agent with a recorder for safekeeping. The will must be sealed and kept confidential. During the testator’s lifetime, a deposited will must be delivered only to the testator or to a person authorized in a writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator’s death, the recorder shall notify any person designated to receive the will and deliver it to that person on request or the recorder may deliver the will to the appropriate court.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 41; 1995, ch. 322, § 27; 1999, ch. 278, § 55; 2001, ch. 120, § 1.

Editorial Board Comment.

Many states already have statutes permitting deposit of wills during a testator’s lifetime. Most of these statutes have elaborate provisions governing purely administrative matters: how the will is to be enclosed in a sealed wrapper, what is to be endorsed on the wrapper, the form of receipt or certificate given to the testator, the fee to be charged, how the will is to be opened after testator’s death, and who is to be notified. Under this section, details have been left to court rule, except as other relevant statutes such as one governing fees may apply.

It is, of course, vital to maintain the confidential nature of deposited wills. However, this obviously does not prevent the opening of the will after the death of the testator if necessary in order to determine the executor or other interested persons to be notified. Nor should it prevent opening the will to microfilm for confidential record storage, for example. These matters could again be regulated by court rule.

The provision permitting examination of a will of a protected person by the conservator supplements section 30.1-29-27.

Collateral References.

Wills 126-129.

79 Am. Jur. 2d, Wills, § 3.

95 C.J.S. Wills, § 442.

30.1-11-02. (2-516) Duty of custodian of will — Liability.

After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate, and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

Source:

S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 42; 1995, ch. 322, § 27.

Editorial Board Comment.

In addition to a registrar or clerk, a person authorized to accept delivery of a will from a custodian may be a universal successor or other person authorized under the law of another nation to carry out the terms of a will.

DECISIONS UNDER PRIOR LAW

Liability of Bank.

A bank had no authority within its charter, implied or incidental, to be custodian of a will, and, in the absence of consideration or benefit, no liability attached to a bank for failure after death of a testator to deliver his will if in its custody. Britton v. Elk Valley Bank, 54 N.D. 858, 211 N.W. 810, 1926 N.D. LEXIS 97 (N.D. 1926).

Collateral References.

Wills 129.

79 Am. Jur. 2d, Wills, §§ 730-734.

95 C.J.S. Wills, §§ 443, 444.

Relative rights to real property as between purchasers from or through decedent’s heirs and devisees under will subsequently sought to be established as affected by concealment or withholding of will, 22 A.L.R.2d 1107.

Article III Probate of Wills and Administration

General Editorial Board Comment.

The provisions of this Article describe the Flexible System of Administration of Decedents’ Estates. Designed to be applicable to both intestate and testate estates and to provide persons interested in decedents’ estates with as little or as much by way of procedural and adjudicative safeguards as may be suitable under varying circumstances, this system is the heart of the Uniform Probate Code.

The organization and detail of the system here described may be expressed in varying ways and some states may see fit to reframe parts of this Article to better accommodate local institutions. Variations in language from state to state can be tolerated without loss of the essential purposes of procedural uniformity and flexibility, if the following essential characteristics are carefully protected in the re-drafting process:

Postmortem probate of a will must occur to make a will effective and appointment of a personal representative by a public official after the decedent’s death is required in order to create the duties and powers attending the office of personal representative. Neither are compelled, however, but are left to be obtained by persons having an interest in the consequence of probate or appointment. Estates descend at death to successors identified by any probated will, or to heirs if no will is probated, subject to rights which may be implemented through administration.
Two methods of securing probate of wills which include a non-adjudicative determination (informal probate) on the one hand, and a judicial determination after notice to all interested persons (formal probate) on the other, are provided.
Two methods of securing appointment of a personal representative which include appointment without notice and without final adjudication of matters relevant to priority for appointment (informal appointment), on the one hand, and appointment by judicial order after notice to interested persons (formal appointment) on the other, are provided.
A five-day waiting period from death preventing informal probate or informal appointment of any but a special administrator is required.
Probate of a will by informal or formal proceedings or an adjudication of intestacy may occur without any attendant requirement of appointment of a personal representative.
One judicial, in rem, proceeding encompassing formal probate of any wills (or a determination after notice that the decedent left no will), appointment of a personal representative, and complete settlement of an estate under continuing supervision of the court (supervised administration) is provided for testators and persons interested in a decedent’s estate, whether testate or intestate, who desire to use it.
Unless supervised administration is sought and ordered, persons interested in estates (including personal representatives, whether appointed informally or after notice) may use an “in and out” relationship to the court so that any question or assumption relating to the estate, including the status of an estate as testate or intestate, matters relating to one or more claims, disputed titles, accounts of personal representatives, and distribution, may be resolved or established by adjudication after notice without necessarily subjecting the estate to the necessity of judicial orders in regard to other or further questions or assumptions.
The status of a decedent in regard to whether he left a valid will or died intestate must be resolved by adjudication after notice in proceedings commenced within three years after his death. If not so resolved, any will probated informally becomes final, and if there is no such probate, the status of the decedent as intestate is finally determined, by a statute of limitations which bars probate and appointment unless requested within three years after death.
Personal representatives appointed informally or after notice, and whether supervised or not, have statutory powers enabling them to collect, protect, sell, distribute, and otherwise handle all steps in administration without further order of the court, except that supervised personal representatives may be subjected to special restrictions on power as endorsed on their letters.
Purchasers from personal representatives and from distributees of personal representatives are protected so that adjudications regarding the testacy status of a decedent or any other question going to the propriety of a sale are not required in order to protect purchasers.
Provisions protecting a personal representative who distributes without adjudication are included to make non-adjudicated settlements feasible.
Statutes of limitation bar creditors of the decedent who fail to present claims within four months after legal advertising of the administration and unsecured claims not previously barred by nonclaim statutes are barred after three years from the decedent’s death.

Overall, the system accepts the premise that the court’s role in regard to probate and administration, and its relationship to personal representatives who derive their power from public appointment, is wholly passive until some interested person invokes its power to secure resolution of a matter. The state, through the court, should provide remedies which are suitable and efficient to protect any and all rights regarding succession, but should refrain from intruding into family affairs unless relief is requested, and limit its relief to that sought.

CHAPTER 30.1-12 General Provisions

30.1-12-01. (3-101) Devolution of estate at death — Restrictions.

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the person’s property, are subject to the restrictions and limitations contained in this title to facilitate the prompt settlement of estates. Upon the death of a person, the decedent’s real and personal property devolves to the persons to whom it is devised by the decedent’s last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the decedent’s heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property, and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

Source:

S.L. 1973, ch. 257, § 1.

Cross-References.

Successors’ rights if there is no administration, see N.D.C.C. § 30.1-20-01.

Notes to Decisions

Estate Taxes.
Merger Doctrine.
Provisions.
Sale or Lease of Estate Property.
Suit on Accrued Claim.
When Property Passes.

Estate Taxes.

Because the estate had insufficient liquid assets to pay the estate taxes without resorting to royalty payments, the district court did not err in finding an implied trust and in ordering the proceeds from life insurance policies to be applied to the estate tax obligation; the testator's children had equal ownership interests in the royalty payments upon her death, subject to administration, and they were entitled to the income from the royalty interests during the administration. Eagon v. McKeown (In re Estate of Eagon), 2017 ND 243, 902 N.W.2d 751, 2017 N.D. LEXIS 257 (N.D. 2017).

Merger Doctrine.

Issues of merger are resolved by the parties’ intent and the interests of substantial justice, and where a substantial injustice would have resulted if merger negated the deceased’s intent under the plain and unambiguous language of his will, the court declined to apply the doctrine of equitable merger. Flynn v. Flynn (In re Estate of Flynn), 2000 ND 24, 606 N.W.2d 104, 2000 N.D. LEXIS 28 (N.D. 2000).

Provisions.

This section provides that, upon death, a person’s real and personal property devolves to the devisees, subject to administration. Additionally, N.D.C.C. § 59-04.1-05(2)(a) [repealed] provides that devisees of specific property are entitled to income earned from that property during the administration of the estate. Stratton v. Rose, 484 N.W.2d 274, 1992 N.D. LEXIS 86 (N.D. 1992).

Sale or Lease of Estate Property.

Title to property passes to a decedent's heirs or devisees at death, subject to a personal representative's broad powers over the title for administration purposes; a personal representative is allowed to lease and sell estate property if acting reasonably for the benefit of the interested persons. Therefore, although a personal representative might have been acting reasonably when she leased farmland, an income-producing asset of the estate, there was insufficient analysis or supporting evidence presented on the issue. In re Estate of Johnson, 2015 ND 110, 863 N.W.2d 215, 2015 N.D. LEXIS 109 (N.D. 2015).

Suit on Accrued Claim.

Decedent’s heirs were not barred from bringing suit in their individual capacities because their claim accrued before decedent’s death and had not been included in the probate inventory, “preserved,” or distributed to the daughters when decedent’s estate was closed. Feickert v. Frounfelter, 468 N.W.2d 131, 1991 N.D. LEXIS 68 (N.D. 1991).

When Property Passes.

Property passes upon death, not upon distribution. Feickert v. Frounfelter, 468 N.W.2d 131, 1991 N.D. LEXIS 68 (N.D. 1991).

30.1-12-02. (3-102) Necessity of order of probate for will.

Except as provided in section 30.1-23-01, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate or an adjudication of probate by the court.

Source:

S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 4; 1995, ch. 322, § 21.

Editorial Board Comment.

The basic idea of this section follows section 85 of the Model Probate Code. The exception referring to section 30.1-23-01 relates to affidavit procedures which are authorized for collection of estates worth less than $5,000.

Section 30.1-12-07 and various sections in chapters 30.1-14 and 30.1-15 of this Article make it clear that a will may be probated without appointment of a personal representative, including any nominated by the will.

The requirement of probate stated here and the limitations on probate provided in section 30.1-12-08 mean that questions as to testacy may be eliminated simply by the running of time. Under these sections, an informally probated will cannot be questioned after the later of three years from the decedent’s death or one year from the probate whether or not an executo