Filed 8/31/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 189

In the Matter of the Estate of Leo Grenz, Deceased

Kelly Grenz, personal representative of 

the Estate of Leo Grenz, deceased, Petitioner and Appellant

v.

Donavin Grenz, David Grenz, Respondents and Appellees

and

Lee Atta Horner and Kelly Grenz,

personal representative of the Estate of

Sally Grenz, Respondents

No. 20190363

Appeal from the District Court of Emmons County, South Central Judicial 

District, the Honorable John W. Grinsteiner, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and 

Justices VandeWalle and Crothers joined. Surrogate Judge Sandstrom filed a 

dissenting opinion.

Timothy D. Lervick, Bismarck, N.D., for petitioner and appellant and 

respondent Kelly Grenz.

Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, N.D., for

respondents and appellees Donavin Grenz and David Grenz.
1

Estate of Grenz

No. 20190363

Tufte, Justice.

Kelly Grenz, as personal representative of the Estate of Leo Grenz, 

appeals from orders and judgments partially invalidating the will of Leo Grenz. 

The district court invalidated a portion of the will resulting from undue 

influence and gave effect to a portion of a contingent distribution clause the 

court found was consistent with Leo Grenz’s testamentary intent. We affirm,

concluding the court properly applied the equitable doctrine of partial 

invalidity.

I

Leo Grenz died testate. Leo and his second wife, Sally Grenz, had one 

child together, Kelly Grenz. Leo also had three children with his first wife: 

Donavin Grenz, David Grenz, and Lee Atta Horner. Leo Grenz was survived 

by Sally Grenz and all of his children. Sally Grenz died during these

proceedings. She has been replaced by Kelly Grenz as the personal 

representative of her estate.

Leo Grenz’s will disposes of his estate, and, as relevant to this appeal,

the shares he owned in JT Ranch, via its residuary clause, which provides:

ARTICLE FIVE. RESIDUE.

A. Surviving Spouse. I give and devise all of the rest, residue 

and remainder of my property of every kind and description, 

wherever situated and whether acquired before or after the 

execution of this Will, to my spouse, Sally Grenz, if she shall 

survive me.

B. Children. In the event that my spouse does not survive me, 

I make the following bequests:

(1) I give and devise an undivided one-third of my stock in 

JT Ranch, Inc., to each of my sons, namely, Donavin 

Grenz, David Grenz and Kelly Grenz.

(2) I give and devise to my daughter, Leatta Horner, the 

sum of $10,000.00.
2

(3) I give and devise all of the rest, residue and remainder 

of my property of every kind and description, wherever 

situated and whether acquired before or after the 

execution of this Will, to my son and daughter-in-law, 

Kelly Grenz and Kelley Grenz, in equal shares.

The will was admitted to probate, and Kelly Grenz was appointed 

personal representative. Donavin Grenz and David Grenz objected to the 

probate, arguing Leo Grenz intended to devise his ownership in JT Ranch to 

them but he was unduly influenced not to do so by Sally Grenz and Kelly 

Grenz.

The district court held a hearing on the objection. On the basis of

consistent statements over many years that Leo Grenz made to his family 

members and to an individual who rented a portion of JT Ranch, the court 

found Leo Grenz’s testamentary intent was for the ranch shares to go to 

Donavin Grenz and David Grenz. The court found Leo Grenz was suffering 

from Parkinson’s disease and declining memory when he executed the will. 

The court also found Sally Grenz and Kelly Grenz isolated Leo Grenz from his 

other family members and they transported him to appointments with the 

attorney who prepared the will, which they also attended.

The district court concluded that Sally Grenz and Kelly Grenz exercised 

undue influence over Leo Grenz and that the will’s disposition of the JT Ranch 

shares was contrary to his testamentary intent. To accomplish Leo Grenz’s 

testamentary intent, the court ordered the portions of the will’s residuary 

clause to be struck to the extent they devised the JT Ranch shares to Sally 

Grenz and Kelly Grenz. The court gave effect to a portion of the contingent 

distribution clause that favored Donavin Grenz and David Grenz and ordered 

the JT Ranch shares be distributed to them.

II

Kelly Grenz argues the district court improperly “rewrote” the will. He 

does not challenge the district court’s finding regarding Leo Grenz’s 

testamentary intent or the court’s determination that he and Sally Grenz 

exercised undue influence. Nor does he challenge the court’s decision to 
3

partially invalidate the will. However, he argues that because of his and Sally 

Grenz’s undue influence, the will does not effectively dispose of the JT Ranch 

shares. He therefore claims the shares should be distributed according to

intestate succession.

Donavin Grenz and David Grenz argue the district court properly 

applied the doctrine of partial invalidity to avoid an unjust result. They note 

that under the laws of intestacy, Sally Grenz’s estate would acquire the 

majority of the shares, and Kelly Grenz would be entitled to a share as Leo

Grenz’s descendant plus the interests he inherits from Sally Grenz. They claim 

the court properly applied its equitable powers to accomplish Leo Grenz’s 

testamentary intent and to prohibit the wrongdoers from benefitting from their 

misconduct.

A

Although neither party objects to the district court’s application of the 

doctrine of partial invalidity, we must determine whether it is a remedy 

available under North Dakota law. The answer to that question, which we have 

not decided, is necessary for us to determine whether the relief granted by the 

district court was proper.

The doctrine of partial invalidity allows a court to separate a portion of 

a will that is the product of undue influence from other portions of the will that 

are valid:

[T]he great majority of American jurisdictions have endorsed the 

view that where a part of a testamentary instrument is shown to 

have been the result of undue influence and therefore not the 

testator’s will, other portions of the instrument may nevertheless 

be given effect, at least if such other portions are separable from 

the concededly invalid ones.

Alan R. Gilbert, Annotation, Partial Invalidity of a Will, 64 A.L.R.3d 261

(1975). Courts do not apply the doctrine when it will “defeat the manifest intent 

of the testator, interfere with the general scheme of distribution, or work an 

injustice to other heirs.” 79 Am. Jur. 2d Wills § 357 (2d ed. 2020). See also

Estate of Lloyd, 189 N.W.2d 515, 520 (S.D. 1971).
4

Prior to North Dakota’s adoption of the Uniform Probate Code, this 

Court applied the doctrine of partial invalidity in Black v. Smith, 58 N.D. 109, 

224 N.W. 915 (1929). The testator and his wife became severely ill, and the 

testator’s wife died. Id. at 917. Shortly after her death, the testator executed 

a will. Id. There was a factual dispute concerning whether the beneficiaries 

allowed the testator to execute the will while concealing from him the fact that 

his wife had died. Id. at 923-24. Because she had predeceased him, he had 

inherited her property and his will governed its disposition. Id. at 920. The 

will was challenged, and on appeal this Court explained that even if the 

beneficiaries’ motive for concealing the wife’s death was not malicious, their 

behavior was still fraudulent. Id. at 924. The Court then held the fraud could 

only invalidate the portion of the will that was fraudulently induced:

[T]he effect of any fraud resulting from an innocent concealment 

of the fact of [the wife’s] death would . . . extend no further than to 

render void the will in so far as it would operate upon the property 

which the deceased had inherited from his wife almost 

immediately before the making of the will. A majority of the court 

is agreed that it was error to submit the question of fraud to the 

jury in such a manner as to warrant the setting aside of the will 

altogether on that account, and that at most it could have had but

the limited effect indicated.

Id. at 925.

Although our common law recognizes the doctrine of partial invalidity,

“there is no common law in any case in which the law is declared by the 

code.” N.D.C.C. § 1-01-06. The Uniform Probate Code now governs probate

proceedings in North Dakota. See N.D.C.C. tit. 30.1. We must therefore 

determine whether it has supplanted our common law rule.

In Estate of Conley, 2008 ND 148, 753 N.W.2d 384, we were tasked with 

determining whether the Uniform Probate Code displaced the common law 

presumption of animo revocandi, which assumes a lost will was intentionally 

revoked. We noted that the Uniform Probate Code did not provide specific 

guidance on the issue. Id. at ¶¶ 18-20. Citing N.D.C.C. § 1-01-03(7), which 

incorporates North Dakota’s common law into its general body of law, we 
5

reasoned the common law presumption applied “because there is no express 

law regarding the animo revocandi presumption.” Id. at ¶¶ 25, 27.

Similar to Estate of Conley, North Dakota’s Uniform Probate Code is 

silent on the issue of whether it supplanted the prior common law rule of 

partial invalidity. There is no provision expressly allowing it; nor is there one 

expressly prohibiting it. Given this uncertainty, we look to our neighboring 

jurisdiction of South Dakota, which is a Uniform Probate Code state and has

faced a similar issue. N.D.C.C. § 1-02-13 (stating a “uniform statute must be 

so construed . . . to make uniform the law of those states which enact it”); Estate 

of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594 (considering Uniform 

Probate Code editorial board comments and decisions of other uniform 

jurisdictions for guidance).

In Estate of O’Keefe, 1998 SD 92, 583 N.W.2d 138, the beneficiaries of a 

will inflicted fraud upon the testator while he was alive. Id. at ¶ 3. After he 

died, the testator’s estate sued the beneficiaries and was awarded damages. 

Id. An innocent beneficiary petitioned the court to prohibit the wrongdoers 

from sharing in the award, a portion of which they were entitled to under the 

terms of the will. Id. at ¶ 4. The wrongdoers argued the court had no authority 

to act contrary to the will. Id. at ¶ 9. They claimed South Dakota’s adoption 

of the Uniform Probate Code foreclosed the equitable power of courts sitting in 

probate. Id. at ¶ 10.

The Supreme Court of South Dakota disagreed. It noted that, under 

South Dakota law, rules of equity supplement the Uniform Probate Code where 

it is silent. O’Keefe, 1998 SD 92, ¶ 10, 583 N.W.2d 138. The court found 

guidance in the Uniform Probate Code provision prohibiting slayers from 

inheriting from their victims. Id. at ¶ 13. The court reasoned that South 

Dakota has a similar public policy that prohibits perpetrators of fraud from 

benefitting from their misconduct. Id. at ¶ 14. It held the probate court could 

prohibit the wrongdoers from taking a share of the estate to which they were 

otherwise entitled under the terms of the will. Id.

As in South Dakota, the district courts of this State are courts of general 

jurisdiction with equitable powers. N.D.C.C. § 27-05-06(3). The Legislature 
6

has given the district courts the power to fashion remedies in both law and 

equity “necessary to . . . the full and complete administration of justice.” Id. 

There is no exception or limitation in probate proceedings. Cf. Estate of 

Rohrich, 496 N.W.2d 566, 571-72 (N.D. 1993) (overturning prior decisions that 

held county courts sitting in probate could not exercise equitable jurisdiction). 

We also follow the principle that “a wrongdoer may not take advantage of his 

own wrong against the victim of his wrongdoing.” Beavers v. Walters, 537 

N.W.2d 647, 650-51 (N.D. 1995). That maxim has been codified. N.D.C.C. 

§ 31-11-05(8) (“A person cannot take advantage of that person’s own wrong.”).

We conclude the doctrine of partial invalidity is an available remedy 

under North Dakota law. It is part of our common law. It is consistent with 

the jurisdiction of our district courts. There is nothing in the Uniform Probate 

Code to indicate the legislature intended to supplant it. And it follows our 

codified public policy against wrongdoers benefiting from their wrongs. We 

make this determination while keeping in mind that “equity follows the letter 

and the spirit of the law and courts of equity are bound by and must follow and 

apply the principles of substantive law.” Schwarting v. Schwarting, 354 

N.W.2d 706, 708 (N.D. 1984). See also Estate of Voeller, 534 N.W.2d 24, 26 

(N.D. 1995) (“an equitable remedy cannot avoid the meaning of an 

unambiguous statute”).

B

Having determined the doctrine of partial invalidity is an available 

remedy in this state, we turn to whether the district court erred in fashioning

the equitable relief it granted here.

We review a district court’s exercise of its equitable powers under the 

abuse of discretion standard. Estate of Albrecht, 2018 ND 67, ¶ 23, 908 N.W.2d 

135. We will not overturn a court’s exercise of its equitable powers unless it 

acts arbitrarily, unreasonably, or unconscionably; its decision is not the 

product of a rational mental process leading to a reasoned determination; or it 

misinterprets or misapplies the law. Id.; see also Rohrich, 496 N.W.2d at 573.
7

Kelly Grenz argues the district court misapplied the law. He cites 

N.D.C.C. § 30.1-04-01(1), which states, “Any part of a decedent’s estate not 

effectively disposed of by will passes by intestate succession . . . .” Kelly Grenz 

argues that “[a]pplying this law to the facts of the case, because Leo’s will did 

not effectively dispose of his JT Ranch shares due to undue influence by Sally 

and Kelly, the JT Ranch shares pass by intestate succession to Leo’s heirs.”

We are not persuaded. Courts apply “a strong presumption” that 

testators do not intend for any portion of their estate to pass via intestacy and 

they construe wills accordingly. Estate of Klein, 434 N.W.2d 560, 562 (N.D. 

1989). The district court invalidated the will only to the extent it devised any 

interest in JT Ranch to Kelly Grenz and Sally Grenz. On the basis of Leo 

Grenz’s testamentary intent, the court gave effect to part of the contingent 

distribution clause that devised the JT Ranch shares to Donavin Grenz and 

David Grenz. Because the court gave effect to a portion of the will to distribute 

the shares, it cannot be said the will did “not effectively” dispose of the JT 

Ranch shares. The laws of intestacy therefore do not apply here.

When a beneficiary attempts to obtain property by undue influence, “the 

beneficiary, although a survivor in fact, is not a survivor in the contemplation 

of law.” Mundwiller v. Mundwiller, 822 S.W.2d 863, 866 (Mo. Ct. App. 1991). 

“[A] finding of undue influence . . . is analogous to that of the murder of the 

testator . . . .” Id. at 865. See also N.D.C.C. § 30.1-10-03(2) (“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.”). Whether a beneficiary whose 

undue influence invalidated a will may still claim an intestate share is a 

question we have not answered, and need not answer here. The district court 

invalidated the portion of the will resulting from undue influence and equitably 

treated the perpetrators of the undue influence as if they had not survived. We 

conclude the district court did not abuse its discretion when it applied the 

doctrine of partial invalidity and gave effect to a portion of Leo Grenz’s will.
8

III

We affirm the district court’s orders and judgments.

Jerod E. Tufte

Gerald W. VandeWalle

Daniel J. Crothers

Jon J. Jensen, C.J.

The Honorable Dale V. Sandstrom, Surrogate Judge, sitting in place of 

McEvers, J., disqualified.

Sandstrom, Surrogate Judge, dissenting.

I respectfully dissent.

The district court rewrote the will of Leo Grenz.

The district court judgment says “the Will shall be rewritten as 

follows . . . .”

The proposed judgment had been filed with the district court by the 

contestants Donavin and David Grenz saying “the Will shall be rewritten as 

follows . . . .”

The personal representative, the appellant here, says the district court 

rewrote the will and identifies the lack of authority for the district court to 

rewrite the will as the issue on appeal.

On appeal—despite what they said in the district court—the contestants 

claim the district court did not rewrite the will because “all the district court 

did” was rearrange words and sentences already in the will and drop other 

words and change who inherits 93 percent of the estate. The contestants 

Donavin and David Grenz say the only issue on appeal is whether the district 

court could partially invalidate the will, something not disputed by the 

personal representative.

The majority opinion dwells on the undisputed question of whether 

North Dakota should recognize partial invalidity of a will, while the opinion 
9

obscures the fact that the district court rewrote the will and failed to properly 

apply our law.

I

The finding of undue influence was questionable, and recognition of the 

doctrine of partial invalidity of a will was interesting. On appeal, the personal 

representative chose to forgo any dispute on those issues, willing to accept the 

remedy provided by a proper application of the law, the contested property 

passing by intestacy as provided by statute.

A

Leo and Sally Grenz were approaching 40 years of marriage, apparently 

without ever having prepared wills. It was a second marriage for each of them. 

They each had children from their prior marriages. They had one son together, 

Kelly Grenz. The three had lived as a family unit, eventually with Kelly Grenz 

marrying and his spouse and their children joining them, all on the Braddock 

farm. Then over a two-month period they met with a respected lawyer, and 

then on October 8, 2009, Leo and Sally Grenz executed simple reciprocal wills. 

Article one identified their place of residence and their families. Article two 

appointed their son, Kelly Grenz, as personal representative. Article three 

directed payment of expenses of administration and claims against the estate. 

Article four provided for a list of tangible personal property to be left to 

devisees named on the list. Article five provided that the rest of their estates 

would go to the spouse, if the spouse was the survivor. The final portion of 

article five provided what would happen to the property of each if the other 

spouse did not survive.

On February 27, 2015, Leo Grenz died at age 89 and after more than 40 

years of marriage. Under the terms of his will—after expenses, bills, and any 

separately listed personal property—all of his estate passed to his wife.

More than a year later, Donavin Grenz objected, claiming his father 

lacked testamentary capacity and mental ability to make a will, the will 

resulted from undue influence, and the will was contrary to the intent his 

father had expressed.
10

More than a year later, on July 26, 2017, a hearing was held on the 

objections. Those contesting the will, Donavin and David Grenz, presented 

testimony that from time-to-time over the years their father, Leo Grenz, had 

said he was going to leave them his minority shares in the JT Ranch. They 

dropped their claim that their father lacked testamentary capacity, which, if 

established, would have completely invalidated the will. They sought to paint 

a picture of their father as impaired by Parkinson’s disease and memory 

problems, and no longer exercising his free will. They said his wife, Sally 

Grenz, was responsible for his not attending gatherings with his “first family.” 

The personal representative argued it was just as likely Leo Grenz chose to 

stay away from the gatherings. His staying away was apparently nothing new. 

As the district court would find, “Over the period of nearly forty years, from 

the early 1970's until 2014, Leo attended only a handful of family events that 

Donavin or David invited him to attend.”

Neither side called the treating physician, but Leo Grenz’s medical 

records were admitted. The records reflected Parkinson’s and memory 

problems by the time of the 2009 will, but the first diagnosis of Parkinson’s 

Dementia was in mid-2012. The contestants called a neuropsychologist who 

treats patients with Parkinson’s disease. He never saw Leo Grenz but read the 

medical file and listened to the other contestant witnesses. On the basis of

what he read and heard, he said Leo Grenz would have been vulnerable to 

undue influence from 2008 on. The court would find this testimony “relevant 

and compelling.”

Experienced probate attorney Malcolm Brown had prepared the wills, 

meeting with Leo, Sally, and Kelly Grenz and his wife twice over an eight-week 

period. His notes reflect that he also was preparing wills for Kelly Grenz and 

his wife. He testified he had no reason to believe that Leo Grenz lacked the 

capacity to execute the will or that the will was the product of undue influence.

A year after the execution of the will, the contestant Donavin Grenz, a 

lawyer and former judge, drafted for his father a power of attorney naming 

Sally Grenz but limiting what she could do with the ranch interests during his 

lifetime. Although in his initial filing in this will contest he had contended his 

father, suffering from “parkinsonism and dementia,” had become incompetent 
11

more than a year before, Donavin Grenz apparently saw no problem with his 

father’s ability to execute this new document.

Sally Grenz did not testify during the hearing. She would die July 31, 

2019, at age 81.

Seven months after the hearing, February 6, 2018, the court issued its 

memorandum opinion and order. It found undue influence. The court wrote, “If 

Leo’s Will is probated as it is currently written, Sally, and eventually Kelly and 

Kelly’s wife Kelley, end up with all of Leo’s shares of JT Ranch and Donavin 

and David receive nothing.” The court then directed the rewriting of the will 

in the manner that will be described in detail below.

The contestants promptly filed the proposed judgment. The judgment 

was entered on February 16, 2018.

B

There is nothing ambiguous about Leo Grenz’s will as written and signed 

by him. He died first and his wife of more than 40 years, Sally Grenz, inherited 

his entire estate. Everything to a surviving spouse is probably the most 

common will provision in the state.

Under the will as rewritten by the court, Donavin and David Grenz 

received more than $4.5 million, and the surviving spouse received

approximately $250,000.

Apparently, never before has this Court struck down or upheld the 

striking down of a bequest to a surviving spouse on the grounds of undue 

influence.

North Dakota has by code defined undue influence since statehood, now 

codified as N.D.C.C. § 9-03-11: 

Undue influence defined. Undue influence consists:

1. In the use, by one in whom a confidence is reposed by 

another or who holds a real or apparent authority over that 
12

person, of such confidence or authority for the purpose of 

obtaining an unfair advantage over that person;

2. In taking an unfair advantage of another’s weakness of 

mind; or

3. In taking a grossly oppressive and unfair advantage of 

another’s necessities or distress.

The meaning applies throughout our law. N.D.C.C. § 1-01-09 (“Whenever the 

meaning of a word or phrase is defined in any statute, such definition is 

applicable to the same word or phrase wherever it occurs in the same or 

subsequent statutes, except when a contrary intention plainly appears.”).

“The law does not condemn all influence, only undue influence.” Matter 

of Estate of Wagner, 265 N.W.2d 459, 464 (N.D. 1978). “A mere suspicion of 

undue influence is not sufficient to require submission of the question of undue 

influence to the jury or to sustain a verdict.” Id. at 465; In re Burris’ Estate, 72 

N.W.2d 884, 889 (N.D. 1955); Kronebusch v. Lettenmaier, 311 N.W.2d 32, 35 

(N.D. 1981).

We have rejected the argument that whenever a confidential 

relationship exists between a party and the testator, coupled with the same 

party participating in the preparation of the will and receiving a benefit by its 

terms, a presumption of undue influence arises. Matter of Estate of Polda, 349 

N.W.2d 11, 15 (N.D. 1984) (quoting Matter of Estate of Thomas, 290 N.W.2d 

223, 227 (N.D. 1980)).

We have long recognized the concept of “the natural objects of his bounty” 

as relating to family members, see Black v. Smith, 58 N.D. 109, 224 N.W. 915, 

921 (1929). Other Uniform Probate Code states have expounded on the 

importance of this principal. “A failure to show an unnatural disposition 

defeats a claim of undue influence. . . . Courts have consistently found that it 

is not unnatural to dispose of property to family members with whom one 

maintains a close relationship.” M.S. v. M.L., 89 Mass. App. Ct. 1126 (2016). 

Our neighboring Uniform Probate Code State of Montana has said:

“To establish undue influence, a party must present specific 

acts showing that undue influence actually was exercised upon the 
13

mind of the testator directly to procure the execution of the will.” 

A trier of fact should consider “the opportunity for undue influence, 

including the testator’s susceptibility to influence, and whether 

the disposition of property was natural.” The mere “opportunity to 

exercise undue influence on the testator is not sufficient to prove 

undue influence and invalidate a will. Rather, the opportunity to 

exercise undue influence is to be considered and correlated with 

the alleged acts of influence to determine if the acts amount to 

undue influence.”

Matter of Estate of Edwards, 2017 MT 93, ¶ 56, 387 Mont. 274, 393 P.3d 639 

(internal citations omitted).

This court has cautioned against seeking evidence of a testator’s “real 

intent” from outside the will:

Where the language of a will is clear and unambiguous, the 

intent of the decedent must be determined from the language of 

the will itself. Jordan v. Anderson, 421 N.W.2d 816, 818 (N.D. 

1988). Unless a duly executed will is ambiguous, the testamentary 

intent is derived from the will itself, not from extrinsic evidence. 

Matter of Estate of Ostby, 479 N.W.2d 866, 871 (N.D. 1992). Once 

it is shown that the will was properly executed, “the executed will 

is the decedent’s testamentary intent.” Id. The purpose of drafting 

and executing an unambiguous will is to give it legal effect upon 

death. Matter of Estate of Duemeland, 528 N.W.2d 369, 371 (N.D. 

1995). A contrary holding would leave every will open to attack as 

to the testator’s alleged “real” intent, and would deprive decedents 

of any certainty about the eventual disposition of their estates. Id.

Matter of Estate of Brown, 1997 ND 11, ¶ 16, 559 N.W.2d 818.

Because the correct application of the law on partial invalidity of a will 

yields a result acceptable to the personal representative and also presumably 

because of the normally difficult clearly erroneous standard of review on a 

finding of undue influence, he has not challenged the finding, even though it 

appears to be based on circumstance and suspicion.

II

The district court wrongly rewrote the will.
14

The Leo Grenz will provides:

ARTICLE FIVE. RESIDUE.

A. Surviving Spouse. I give and devise all of the rest, residue 

and remainder of my property of every kind and description, 

wherever situated and whether acquired before or after the 

execution of this Will, to my spouse, Sally Grenz, if she shall 

survive me.

B. Children. In the event that my spouse does not survive me, 

I make the following bequests:

(1) I give and devise an undivided one-third of my stock in 

JT Ranch, Inc., to each of my sons, namely, Donavin 

Grenz, David Grenz and Kelly Grenz.

(2) I give and devise to my daughter, Leatta Horner, the 

sum of $10,000.00.

(3) I give and devise all of the rest, residue and remainder 

of my property of every kind and description, wherever 

situated and whether acquired before or after the 

execution of this Will, to my son and daughter-in-law, 

Kelly Grenz and Kelley Grenz, in equal shares.

Under Leo Grenz’s will, the JT Ranch transfers under Five (A). With the 

transfer under Five (A) invalidated, there is no other portion of the will that 

transfers the property. Five (B) by its explicit language applies only if his 

spouse did not survive him, and his spouse did survive him. The Uniform 

Probate Code as adopted by North Dakota, N.D.C.C. § 30.1-04-01(1), provides, 

“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.” With 

the invalidity of the transfer of the ranch under the will, it is not effectively 

disposed of by will and it passes by intestate succession.

Citing no authority at all to do so, the district court said it rewrote the 

will to provide:

ARTICLE FIVE. RESIDUE.

A (1) I give and devise an undivided one-third of my stock in 

JT Ranch, Inc., to each of my sons, namely, Donavin Grenz 

[and] David Grenz and Kelly Grenz.

(2) Surviving Spouse. I give and devise all of the rest, 

residue and remainder of my property of every kind 
15

and description, wherever situated and whether 

acquired before or after the execution of this Will, to 

my spouse, Sally Grenz, if she shall survive me.

B. Children: In the event that my spouse does not survive me, 

I make the following bequests:

(1) I give and devise to my daughter, Leatta Horner, the 

sum of $10,000.00.

(2) I give and devise all of the rest, residue and remainder 

of my property of every kind and description, wherever 

situated and whether acquired before or after the 

execution of this Will, to my son and daughter-in-law, 

Kelly Grenz and Kelley Grenz, in equal shares.

Not only did the district court make the contingent grant of the ranch the 

primary grant, it changed the terms of the clause that would have become 

effective had the contingency arisen by striking Kelly Grenz from that grant.

A

The contestants, after having acknowledged in their proposed judgment 

that the district court rewrote the will, on appeal boldly assert: “The district 

court did not re-write the Will.”

In a footnote, the contestants mention two cases relating to the power of 

the district court regarding probate. Matter of Estate of Peterson, 1997 ND 48, 

¶¶ 14-16, 561 N.W.2d 618; Matter of Estate of Johnson, 501 N.W.2d 342, 346 

(N.D. 1993). Both cases relate to poorly drafted wills. In Peterson, the district 

court and this Court applied the statute: “The intention of a testator as 

expressed in the testator’s will controls the legal effect of the testator’s 

dispositions.” N.D.C.C. § 30.1-09-03. In Johnson, the courts had to determine 

the intent of language in the will that was ambiguous and capable of disparate 

meanings. Neither case is helpful to the contestants.

The contestants mention that Kelly Grenz cannot benefit from his 

wrongdoing to justify rewriting the will to exclude Kelly Grenz from receiving 

ranch shares. The principal is not one of substantive law but one related to 

competing reasonable interpretations and is codified and limited by statute, 

N.D.C.C. § 31-11-05:
16

The maxims of jurisprudence set forth in this section are not 

intended to qualify any of the provisions of the laws of this state,

but to aid in their just application:

. . . .

8. A person cannot take advantage of that person’s own 

wrong.

. . . .

So this maxim does not alter an unambiguous statute, nor does it create any 

new provision of the probate code.

B

The majority fails to acknowledge the district court said it rewrote the 

will. It obscures what the district court did, saying “the court gave effect to part 

of the contingent distribution clause that devised the JT Ranch shares to 

Donavin Grenz and David Grenz.” There are at least three problems with this 

assertion.

First, that is not what the district court said it did. The district court 

says it rewrote the will: “The will is rewritten as follows . . . .”

Second, if the provision in the will leaving the ranch shares to the wife 

is invalidated, the contingency clause by its terms is not activated because it 

was predicated on the wife’s not surviving, but the wife survived.

Third, the contingency clause it says was “given effect” was not followed 

by the district court. The contingency clause in Leo Grenz’s will would have 

left the ranch shares to all three sons equally, but the “contingency clause” in 

the district court’s will left the property only to Donavin and David Grenz.

The majority says there is no problem with what the district court did 

because it just rearranged words, sentences, and beneficiaries already there, 

and renumbered things. Under this rationale, if a will says, “I leave everything

to A and nothing to B,” the will would not have been rewritten if the court had 

rearranged the words to say, “I leave nothing to A and everything to B.”
17

Here is another example. Testator’s will says, “I leave $1 million to my 

spouse and $1,000 to Charity X.” Charity X, a beneficiary under the will, 

challenges the will, saying it was the result of undue influence by the spouse;

after all, the testator had over the years told representatives of the charity and 

some others that he was going to leave the charity $1 million. Further, in later 

years the testator had not accepted invitations to the charity’s events (and no 

doubt that was the spouse’s fault). In declining health and having never 

written a will before, the testator accompanied by the spouse visited a lawyer 

and had the will prepared. The district court agrees with the charity and says 

it is rearranging the words so the will reads, “I leave $1,000 to my spouse and 

$1 million to Charity X.” The majority would say the will has not been 

rewritten.

Section 30.1-04-01(1), N.D.C.C., says any “part of a decedent’s estate not 

effectively disposed of by will passes by intestate succession.” The will that 

must effectively dispose of the property is the will of the decedent, Leo Grenz 

here, not the will of the district judge. The Uniform Law Commission in 

drafting the Uniform Probate Code or the Legislative Assembly in its 

enactment in North Dakota could have provided something different than it 

did for cases where a will failed to effectively distribute property because of a 

finding of undue influence. They could have said in such cases a prior will 

would be resurrected, if there were one. Or they could have said in such cases 

the court may devise the property as it thinks the decedent would have if there 

was no undue influence. But they did not do so.

The majority opinion looks to the non-Uniform Probate Code state of 

Missouri and a 29-year-old lower court opinion never adopted by that state’s 

supreme court, Mundwiller v. Mundwiller, 822 S.W.2d 863, 866 (Mo. Ct. App. 

1991), to argue that a finding of undue influence is “analogous” to felony 

murder. It notes that North Dakota has a felony murder inheritance 

disqualification statute. The problems here are legion. The district court did 

not use or even suggest it was considering such a rationale. The UPC drafting 

could have made such a provision but did not. The standard of proof required 

for felony murder is much greater, beyond a reasonable doubt. The concept 

opens the door for courts in the future to completely disinherit spouses.
18

The majority argues there is “a strong presumption” that testators do not 

intend for any of their estate to pass by intestacy, citing Estate of Klein, 434 

N.W.2d 560, 562 (N.D. 1989). The majority ignores that this is a principal for 

courts to interpret ambiguous wills, not to write new ones.

The majority seems to suggest that a court can ignore statutes and can 

ignore plain words in the name of “equity.” It cites Estate of Albrecht, 2018 ND 

67, ¶ 23, 908 N.W.2d 135, a case dealing with the intersection of divorce law 

and probate law, and potential equitable remedies under the divorce. The 

district court is specifically vested with broad equitable powers under the 

divorce laws, see, e.g., N.D.C.C. § 14-05-24, including the authority to

“redistribute property and debts.” The district court is given no such equitable 

powers under the Uniform Probate Code to rewrite wills or to redistribute 

property and debts. As the majority concedes in another context, “equity 

follows the letter and the spirit of the law and courts of equity are bound by 

and must follow and apply the principles of substantive law.” Schwarting v. 

Schwarting, 354 N.W.2d 706, 708 (N.D. 1984). See also Estate of Voeller, 534 

N.W.2d 24, 26 (N.D. 1995) (“an equitable remedy cannot avoid the meaning of 

an unambiguous statute”). The substantive law here is that if any part of the 

decedent’s estate is not effectively disposed of by the decedent’s will, it passes 

to the decedent’s heirs by intestate succession. N.D.C.C. § 30.1-04-01(1).

Even without N.D.C.C. § 30.1-04-01(1) being dispositive, the authorities 

are in agreement as to the effect of undue influence on a will. 

If undue influence has been exerted as to some of the gifts in 

the will, and there is no residuary clause, the gifts as to which the 

undue influence was exerted are invalid; and the property which 

was attempted to give by such invalid gifts will pass as in 

intestacy.

If undue influence has been exerted as to the residuary 

clause only, the residuary clause is invalid but the other gifts are

valid; and the residue will be distributed as in intestacy.

Jeffrey A. Schoenblum, Page on the Law of Wills § 15.12 (2003) (footnotes 

omitted).
19

III

I would reverse and remand for the district court to distribute the shares 

of JT Ranch under the laws of intestacy.

Dale V. Sandstrom, S.J.