Filed 10/26/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 227

In the Matter of the Estate of Ruth Finstrom, Deceased

Heartland Trust Company c/o Jon Benson, 

Personal Representative of 

The Estate of Ruth Finstrom, Petitioner and Appellee

v.

Joel Finstrom and James Finstrom, Respondents and Appellants

and

Daniel Finstrom, Janice Schulz, and 

Mark Finstrom, Respondents and Appellees

and 

Rebecca Lusk and Annette Hauser, Respondents 

and

Teresa Finstrom, Claimant and Appellee

No. 20190360

In the Matter of the Estate of Ruth Finstrom, Deceased

Heartland Trust Company c/o Jon Benson, 

Personal Representative of 

The Estate of Ruth Finstrom, Petitioner and Appellee

v.

Joel Finstrom, Respondent
and

Annette Hauser and James Finstrom, Respondents and Appellants

and 

Daniel Finstrom, Janice Schulz, and 

Mark Finstrom, Respondents and Appellees

and 

Rebecca Lusk, Respondent

and

Teresa Finstrom, Claimant and Appellee

No. 20190361

Appeal from the District Court of Traill County, East Central Judicial District, 

the Honorable Wade L. Webb, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Timothy G. Richard, Fargo, ND, for petitioner and appellee; submitted on brief.

Craig E. Johnson, Fargo, ND, for respondents and appellants Joel Finstrom,

Annette Hauser and James Finstrom; submitted on brief.

Samuel G. Larson, Bismarck, ND, for respondents and appellees Daniel 

Finstrom and Janice Schulz and claimant and appellee Teresa Finstrom; 

submitted on brief.

Mark Finstrom, Chaparral, NM, respondent and appellee; submitted on brief.
1

Estate of Finstrom

Nos. 20190360, 20190361

Crothers, Justice.

[¶1] Joel Finstrom, James Finstrom and Annette Hauser appeal from orders

and a judgment denying their claims related to Ruth Finstrom’s estate. We 

affirm.

I

[¶2] Ruth and Carl Finstrom had seven children: James Finstrom, Daniel 

Finstrom, Joel Finstrom, Annette Hauser, Janice Schulz, Mark Finstrom, and 

Rebecca Lusk. In the late 1980s, Carl and Daniel Finstrom began farming 

together. According to trial testimony, Daniel Finstrom made oral agreements 

with his parents to acquire three quarters of real property. In 2011 Daniel 

Finstrom believed he had fulfilled the agreements, but Carl Finstrom 

requested an additional $240,000 for the property.

[¶3] In August 2011, Ruth and Carl Finstrom executed identical wills. The 

wills devised one-third of a quarter section of property to Joel Finstrom, stating 

he had paid one-third of the price for the property. The quarter devised to Joel 

Finstrom was one of the quarters Daniel Finstrom believed he purchased. Carl 

Finstrom died in November 2011.

[¶4] In December 2012, Ruth Finstrom executed a contract for deed 

conveying the three quarters of real property to Daniel and Teresa Finstrom

for $240,000. Ruth Finstrom executed a new will in July 2015, devising the 

residue of her estate to her seven children in equal shares. In July 2016, Ruth 

Finstrom conveyed additional real property to her daughter Janice Schulz. 

Ruth Finstrom died in December 2016.

[¶5] In December 2016, the district court admitted Ruth Finstrom’s 2015 will 

to informal probate and appointed James Finstrom personal representative. In 

March 2017, Joel Finstrom filed a claim against the estate, asserting the estate 

owed him $200,000 for the value of an interest he owned in Ruth Finstrom’s 

real property. Joel Finstrom also claimed the estate owed him $2,000 per 
2

month for providing Ruth Finstrom in-home health care from May 1, 2015, to 

April 21, 2016.

[¶6] In May 2017, Mark Finstrom petitioned for the removal of James 

Finstrom as personal representative. In September 2017, James Finstrom, 

individually and as personal representative, sued Schulz and Daniel and 

Teresa Finstrom seeking to invalidate the real property conveyances Ruth 

Finstrom made to them. James Finstrom argued Ruth Finstrom was unduly 

influenced in conveying the property. Schulz and Daniel and Teresa Finstrom 

denied the claims and counterclaimed, arguing James Finstrom breached his 

fiduciary duties to the estate. James Finstrom resigned as personal 

representative and Heartland Trust Company was appointed as successor 

personal representative.

[¶7] The district court held a two-day trial in January 2019 on the claims in 

the complaint and counterclaim. Joel Finstrom also agreed to have his claim 

that he owned an interest in Ruth Finstrom’s real property decided at trial. All

of Ruth Finstrom’s children were present at trial except Rebecca Lusk.

[¶8] On March 12, 2019, the district court issued its findings of fact, 

conclusions of law and order for judgment. The court ruled Ruth Finstrom’s 

2015 will was valid and revoked her 2011 will. The court denied Joel Finstrom’s 

claim he had an interest in Ruth Finstrom’s real property, and upheld Ruth 

Finstrom’s conveyances to Schulz and Daniel and Teresa Finstrom. The court 

found Ruth Finstrom did not lack mental capacity to make the conveyances. 

The court also found Daniel and Teresa Finstrom did not have a confidential 

relationship with Ruth Finstrom, and Ruth Finstrom was not unduly 

influenced.

[¶9] In April 2019, Joel Finstrom petitioned the district court for an order 

allowing his earlier claims relating to his interest in Ruth Finstrom’s real 

property and the care he provided her before her death. In July 2019, Annette 

Hauser petitioned the court for formal probate of Ruth Finstrom’s 2011 will, 

arguing she lacked testamentary capacity to execute her 2015 will.
3

[¶10] After a hearing on the petitions in September 2019, the district court 

denied Joel Finstrom’s claim that he owned an interest in Ruth Finstrom’s real 

property. The court concluded that issue was decided at trial. The court 

partially granted the remainder of his claim, finding he was entitled to $6,000 

from the estate for the care he provided his mother before her death. The court 

also denied Annette Hauser’s petition for formal probate, concluding her claim 

related to Ruth Finstrom’s testamentary capacity was decided at trial. In 

November 2019, the court entered a final judgment disposing of James 

Finstrom’s claims.

II

[¶11] James Finstrom argues the district court erred in denying his claims 

against Daniel and Teresa Finstrom. He argues the court erred in ruling 

Daniel and Teresa Finstrom did not unduly influence Ruth Finstrom. He 

argues the court erred in concluding Daniel and Teresa Finstrom were not 

unjustly enriched at the expense of Ruth Finstrom. He also claims the court 

erred in admitting parol evidence relating to the contract for deed between 

Ruth Finstrom and Daniel and Teresa Finstrom.

A

[¶12] James Finstrom argues the district court clearly erred in finding Daniel 

and Teresa Finstrom did not have a confidential relationship with Ruth 

Finstrom and did not unduly influence her. He claims Ruth Finstrom was 

unduly influenced because she sold the property for much less than what it 

was worth.

“In cases involving nontestamentary transactions, this Court has 

defined undue influence as ‘improper influence [ ] exercised over 

the grantor . . . in such a way and to such an extent as to destroy 

his free agency or his voluntary action by substituting for his will 

the will of another.’ In nontestamentary cases, this Court has held 

‘[a] finding of undue influence . . . requires that three factors be 

established: (1) A person who can be influenced; (2) The fact of 

improper influence exerted; and (3) Submission to the 

overmastering effect of such unlawful conduct.’”
4

Nelson v. Nelson, 2018 ND 212, ¶ 7, 917 N.W.2d 479 (quoting Erickson v. Olsen, 

2014 ND 66, ¶ 26, 844 N.W.2d 585) (citations omitted). “Undue influence may 

be proven by circumstantial evidence because direct evidence is rarely 

available.” Nelson, at ¶ 9.

[¶13] Whether undue influence exists generally is a question of fact which will 

not be overturned on appeal unless it is clearly erroneous. Nelson, 2018 ND 

212, ¶ 7. A finding of fact is clearly erroneous if it is induced by an erroneous 

view of the law, if no evidence supports it, or if, on the entire record, we are left 

with a definite and firm conviction a mistake has been made. Vig v. Swenson, 

2017 ND 285, ¶ 14, 904 N.W.2d 489. In a bench trial, the district court 

determines credibility issues, which will not be second-guessed on appeal. Id.

[¶14] “A confidential relationship exists whenever trust and confidence is 

reposed by one person in the integrity and fidelity of another, and that such 

relationship is a fact to be established in the same manner and by the same 

kind of evidence as any other fact is proven.” Estate of Bartelson, 2015 ND 147, 

¶ 16, 864 N.W.2d 441 (quoting Estate of Dinnetz, 532 N.W.2d 672, 674 (N.D. 

1995)). A person who voluntarily assumes a confidential relationship becomes 

a trustee, and any transaction between the trustee and the trustee’s 

beneficiary by which the trustee gains an advantage is presumed to be made 

under undue influence. Bartelson, at ¶ 16.

[¶15] The district court found a confidential relationship did not exist between 

Daniel and Teresa Finstrom and Ruth Finstrom. The court found “the 

Claimants failed to adduce sufficient evidence to establish such a relation, 

other than the fact of a familial relationship. This alone does not give rise to a 

confidential relationship.” The court found that in 2010, Daniel and Teresa

Finstrom stopped contacting Carl and Ruth Finstrom after they refused to 

convey the property on the basis of their earlier agreements. The court found 

that Ruth Finstrom approached Daniel and Teresa Finstrom about the 2012 

contract for deed. 

[¶16] Additionally, the district court found Daniel and Teresa Finstrom did not 

unduly influence Ruth Finstrom into signing the 2012 contract for deed. The 
5

court found Ruth Finstrom approached Daniel and Teresa Finstrom about the 

contract for deed, which was drafted in Ruth Finstrom’s favor. The court found 

an attorney witnessed the execution of the contract and he had no notes 

mentioning undue influence. 

[¶17] The district court addressed James Finstrom’s contention that Ruth 

Finstrom sold the property for far less than what it was worth. James Finstrom 

submitted an appraisal valuing the property at $1,360,000 as of July 2018. The 

parties executed the contract for deed in December 2012 for $240,000. The 

court stated, “While some evidence was presented to the Court that the 

purchase price paid by Daniel and Teresa to Ruth was below market value, one 

also needs to consider the value of Daniel working the land for decades and 

that a parent may favor one child over another.” 

[¶18] The mere fact that a parent deeds property to a child, or that some 

children are favored to the exclusion of others, does not raise a presumption of 

undue influence. Johnson v. Johnson, 85 N.W.2d 211, 225 (N.D. 1957). James 

Finstrom did not present sufficient evidence showing Teresa and Daniel 

Finstrom had a confidential relationship with Ruth Finstrom, or that they 

unduly influenced Ruth Finstrom into executing the contract for deed. The 

district court’s findings have support in the record, and we are not left with a 

definite and firm conviction a mistake was made.

B

[¶19] James Finstrom asserts the district court erred in concluding Daniel 

and Teresa Finstrom were not unjustly enriched at the expense of Ruth 

Finstrom or her estate.

[¶20] A determination of unjust enrichment is a conclusion of law because it 

holds that a certain state of facts is contrary to equity, and therefore, a district 

court’s conclusion of whether there has been unjust enrichment is fully 

reviewable. Broten v. Broten, 2017 ND 47, ¶ 10, 890 N.W.2d 847. The court’s 

findings of fact supporting its unjust enrichment conclusion are subject to the 

clearly erroneous standard of review. Id.
6

[¶21] Unjust enrichment is a broad, equitable doctrine resting upon quasi or 

constructive contracts implied by law to prevent a person from unjustly 

enriching herself at the expense of another. Broten, 2017 ND 47, ¶ 9. The 

essential element in recovering under the doctrine is the receipt of a benefit by 

the defendant from the plaintiff which would be inequitable to retain without 

paying for its value. Id. “[I]t is well-settled that unjust enrichment applies only 

in the absence of a contract between the parties, and there can be no impliedin-law contract when there is an express contract between the parties relative 

to the same subject matter.” Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2004 

ND 117, ¶ 28, 680 N.W.2d 634.

[¶22] Here, a contract existed between Daniel and Teresa Finstrom and Ruth

Finstrom for the three quarters of real property. Additionally, the district court 

found “Daniel and Teresa [Finstrom] set forth credible evidence that Carl and 

Ruth [Finstrom] were enriched by the receipt of profits, labor, and 

expenditures by Daniel and Teresa [Finstrom] dating back to 1989, and 

culminating in a final cash payout in 2014.” 

[¶23] The district court did not err in concluding Daniel and Teresa Finstrom 

were not unjustly enriched.

C

[¶24] James Finstrom contends the district court erred in admitting and 

considering parol evidence relating to the contract for deed between Ruth 

Finstrom and Daniel and Teresa Finstrom. James Finstrom asserts the court 

erred in considering evidence of the parties’ oral agreements before executing 

the contract for deed.

[¶25] Under N.D.C.C. § 9-06-04(3), an agreement for the sale of real property 

is invalid unless the agreement is in writing and subscribed by the party to be 

charged. In construing a written contract, parol or extrinsic evidence may not 

be admitted to add to or vary the terms of the contract or to supply a missing 

essential term of the agreement; however, parol evidence may be received to 

explain and make certain the existing terms of the agreement as set forth in 

the contract. Zitzow v. Diederich, 337 N.W.2d 799, 802 (N.D. 1983) (citing 
7

Johnson v. Auran, 214 N.W.2d 641, 653 (N.D. 1974)). Parol evidence is also 

“admissible to show the inducement for entering a contract.” Citizens State 

Bank-Midwest v. Symington, 2010 ND 56, ¶ 20, 780 N.W.2d 676. “The decision 

to admit parol evidence is a determination of law and is fully reviewable on 

appeal.” Id.

[¶26] Over James Finstrom’s objection at trial, the district court allowed

Daniel and Teresa Finstrom to testify about their earlier oral agreements with 

Carl and Ruth Finstrom relating to the purchase of the three quarters of

property. Daniel Finstrom testified that in 1989 he began farming with Carl 

Finstrom with the intention of acquiring the property. Daniel Finstrom 

believed he had fulfilled the terms of the oral agreements to purchase the 

property until 2011, when Carl Finstrom requested an additional $240,000. 

Daniel Finstrom testified he initially refused to pay his father the additional 

money. He testified he and Teresa Finstrom agreed to pay the $240,000 after 

Carl Finstrom died and Ruth Finstrom suggested executing a contract for deed 

for the property.

[¶27] The district court did not err in admitting the testimony relating to the 

oral agreements for the purchase of the property. The testimony was not used 

to add to or vary the contract for deed’s terms. Rather, the testimony explained 

the circumstances surrounding the contract and the reasons for executing the 

contract.

III

[¶28] Joel Finstrom argues the district court lacked subject matter jurisdiction 

over his claim against Ruth Finstrom’s estate because it was not properly 

before the district court at trial. He claims the court erred in concluding Ruth 

Finstrom’s 2011 will did not create a trust in his benefit. He also argues the 

court erred in concluding res judicata barred a portion of his April 2019 petition 

for allowance of claim.
8

A

[¶29] Joel Finstrom argues the district court lacked subject matter jurisdiction 

over his claim against Ruth Finstrom’s estate relating to his one-third interest 

in her real property because it was not properly before the district court at 

trial. He argues his claim was not tried by consent, and the only issues properly 

before the court at trial were the claims raised in James Finstrom’s complaint

against Schulz and Daniel and Teresa Finstrom, and the counterclaims by

Schulz and Daniel and Teresa Finstrom against James Finstrom.

[¶30] For a district court to issue a valid order or judgment, the court must 

have jurisdiction over both the subject matter of the action and the parties. 

Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. 

“Subject-matter jurisdiction is the court’s power to hear and determine the 

general subject involved in the action, while personal jurisdiction is the court’s 

power over a party.” Id. For subject matter jurisdiction to attach, the issue to 

be decided must be properly brought before the district court in the particular 

proceeding. Id. at ¶ 11. Issues involving subject matter jurisdiction cannot be 

waived and can be raised sua sponte at any time. Garaas v. Cass Cty. Joint 

Water Res. Dist., 2016 ND 148, ¶ 4, 883 N.W.2d 436. When the jurisdictional 

facts are not in dispute, this Court reviews challenges to a district court’s 

subject matter jurisdiction de novo. Schweitzer v. Miller, 2020 ND 79, ¶ 6, 941 

N.W.2d 571.

[¶31] Under N.D.R.Civ.P. 15(b)(2), issues not raised in the pleadings may be 

tried by the parties’ consent:

“When an issue not raised by the pleadings is tried by the parties’ 

express or implied consent, it must be treated in all respects as if 

raised in the pleadings. A party may move—at any time, even after 

judgment—to amend the pleadings to conform them to the 

evidence and to raise an unpleaded issue. Failure to amend does 

not affect the result of the trial of that issue.”

“[A]mendment by implication under N.D.R.Civ.P. 15(b) is limited to situations 

where the novelty of the issues sought to be raised is reasonably apparent and 
9

the intent to try these issues is clearly indicated by failure to object or 

otherwise.” SolarBee, Inc. v. Walker, 2013 ND 110, ¶ 13, 833 N.W.2d 422.

[¶32] In March 2017, Joel Finstrom’s claim against the estate was filed with

the district court under N.D.C.C. § 30.1-19-04. Joel Finstrom’s claim that he 

had an interest in Ruth Finstrom’s real property was related to the allegation 

in James Finstrom’s complaint that Ruth Finstrom’s 2011 will stated Joel 

Finstrom paid one-third of the price for a quarter of real property. James 

Finstrom’s pretrial brief argued Ruth and Carl Finstrom’s 2011 wills 

established that an express trust was created for Joel Finstrom’s benefit in a 

one-third interest in a quarter of property. Six of the seven Finstrom siblings 

attended the trial, including Joel Finstrom. Testimony was presented on Joel 

Finstrom’s claim.

[¶33] At trial, the personal representative’s attorney stated it was the personal 

representative’s hope “that the court will resolve all probate issues, including 

any claims that have been made against the estate.” James Finstrom’s 

attorney initially stated at trial “the question is whether or not the transfer to 

Daniel and Teresa Finstrom, as well as the transfer to Janice Schulz was done 

because of undue influence that was put upon the decedent, Ruth Finstrom, 

and I believe that’s the only issue that’s before the court at this time.” The 

following discussion then occurred about Joel Finstrom’s claim:

“MR. JOHNSON: . . . I have a question with respect to Joel 

Finstrom. Is his claim part of this proceeding?

THE COURT: As best I could tell, and I don’t want to take forever 

trying to figure out what the issues are, but as best I can tell, they, 

Mr. Andrews, Ms. Champ and their clients believe that there are 

factual issues in dispute having to do with Joel Finstrom’s claim 

as a creditor and also perhaps claim as you have advanced on 

behalf of your client, and you don’t represent Joel, but of a trust in 

regards to this matter, so I do believe that that would be a factual 

issue. Is that a fair statement, Mr. Andrews?

MR. ANDREWS: We don’t believe there are any factual issues, 

Your Honor, as we’ve made abundantly clear, but clearly that 
10

claim is—Joel’s claim is part and parcel of what we’re doing here. 

I mean, there is no question about that.

MR. JOHNSON: I guess the question is, is it res judicata against 

Joel, because I should probably talk to Joel if we’re representing 

his interests to find out if he’s willing to waive his right to a jury 

trial as well. A jury was requested in the complaint.

. . . .

THE COURT: . . . We left off, Mr. Johnson, where we were at. Mr. 

Johnson?

MR. JOHNSON: Yes. I spoke with Joel and he’s willing to go 

forward to the extent that this may bind him and he’s willing to go 

forward with a court trial.

THE COURT: And here in Cass County?

MR. JOHNSON: Here in Cass County.

THE COURT: Joel, that’s okay with you?

JOEL FINSTROM: Yes.

THE COURT: Okay. And for the record, Mr. Joel Finstrom 

indicated yes, affirmative to the court’s question.”

[¶34] Joel Finstrom’s claim was filed with the district court. James Finstrom’s 

pretrial brief argued that Joel Finstrom held a one-third interest in a quarter

of land owned by Ruth Finstrom. Joel Finstrom consented to having his claim 

decided at trial. Joel Finstrom’s claim was properly before the court, and his 

claim was tried by the parties’ consent under N.D.R.Civ.P. 15(b)(2).

B

[¶35] Joel Finstrom claims the district court erred in concluding Ruth 

Finstrom’s 2011 will did not create an express trust in his benefit. He also 

contends the court erred in concluding an implied trust was not established.
11

[¶36] Whether a trust has been created is a question of fact. Estate of Binder, 

386 N.W.2d 910, 912 (N.D. 1986). An express trust in real property must be 

created or declared by written instrument subscribed by the trustee or an 

authorized agent and cannot be created by parol evidence. N.D.C.C. § 59-12-

18; Binder, at 912.

[¶37] “There are two types of implied trusts: resulting and constructive.” 

Spagnolia v. Monasky, 2003 ND 65, ¶ 15, 660 N.W.2d 223. An implied trust 

must be established by clear and convincing evidence. Id. A resulting trust is 

“based on the implied intention of the parties,” and “exists where the acts or 

expressions of the parties indicate an intent that a trust relation resulted from 

their transaction.” Id. See also Schrank v. Meade, 145 N.W.2d 514, 517 (N.D. 

1966) (stating a resulting trust is based upon the doctrine that valuable 

consideration was paid by one party, but legal title taken in another).

[¶38] “A constructive trust is an equitable remedy to compel a person who 

unfairly holds a property interest to convey it to the rightful owner.” Spagnolia, 

2003 ND 65, ¶ 15. A court may impose a constructive trust to prevent the 

unjust enrichment of the person wrongfully interfering with the owner’s 

possession of the property. Scheid v. Scheid, 239 N.W.2d 833, 838 (N.D. 1976).

[¶39] Joel Finstrom asserts Ruth and Carl Finstrom’s 2011 wills created an 

express trust in his benefit on the basis of the following language:

“(A). That during my lifetime, my son Joel paid for one-third 

of the NW1⁄4 of Section 22 in Wold Township but did not take title 

to said one third of the parcel; therefore I give to my son Joel 

Finstrom, an undivided one-third share in the NW1⁄4 of Section 22 

in Wold Township.” 

[¶40] Joel Finstrom argued in the alternative that if the 2011 will did not 

create an express trust, an implied trust was established by clear and 

convincing evidence. He testified he suffered an accident as a child and 

received a settlement, which was used to purchase part of the property. He 

testified he did not know the amount of the settlement. Annette Hauser 

testified about Joel Finstrom’s accident and stated the settlement money was 
12

used to purchase property. James Finstrom testified Ruth and Carl Finstrom 

held a one-third interest in the property for Joel Finstrom’s benefit.

[¶41] The district court found the 2011 wills did not create an express trust for 

Joel Finstrom’s benefit. The court found there was no credible evidence 

showing that Ruth and Carl Finstrom contracted to hold the property in trust 

for Joel Finstrom. See Hagen v. Schluchter, 126 N.W.2d 899, 903 (N.D. 1964)

(stating reciprocal wills “wholly testamentary in character cannot be 

considered as a memorandum of an irrevocable contract to devise property in 

accordance with its terms”). The court found Ruth Finstrom revoked her 2011 

will by executing her 2015 will. See N.D.C.C. § 30.1-08-07(1)(a) (“A will or any 

part thereof is revoked . . . [b]y executing a subsequent will that revokes the 

previous will.”). 

[¶42] The district court also found Joel Finstrom’s claim for an implied trust 

was not established by clear and convincing evidence. “Although a claim was 

made that there was some consideration from Joel in the form of an accident 

settlement years ago, no sufficient evidence was furnished by the Claimants to 

substantiate this claim.” “The Court has no credible evidence as to the amount 

or value of said settlement.” The court also found that while Ruth Finstrom’s 

2011 will expressed an intention to devise certain property to Joel Finstrom, 

her actions afterwards, including the execution of the 2012 contract for deed 

and the July 2015 will, expressed a different intention.

[¶43] On our review of the record, the district court did not clearly err in

finding that Ruth Finstrom did not create an express or implied trust for Joel 

Finstrom’s benefit.

C

[¶44] Joel Finstrom asserts the district court erred in concluding res judicata 

barred a portion of his April 2019 petition for allowance of claim. He argues 

the court denied him due process by prohibiting him from presenting evidence 

on his claim to an interest in Ruth Finstrom’s real property.
13

[¶45] In April 2019, Joel Finstrom filed a petition for allowance of his March 

2017 claim to an interest in Ruth Finstrom’s real property and the care he 

provided to her from May 2015 to April 2016. At the August 2019 hearing, Joel 

Finstrom argued his claim relating to Ruth Finstrom’s property was not an 

issue at trial, and Heartland did not disallow his claim against the estate until 

after trial. The district court concluded res judicata prohibited Joel Finstrom’s 

petition for allowance of his claim that he owned an interest in Ruth Finstrom’s 

property because it was litigated at the January 2019 trial.

[¶46] Res judicata prevents relitigation of claims that were raised, or could 

have been raised, in prior actions between the same parties or their privies. 

Fredericks v. Vogel Law Firm, 2020 ND 171, ¶ 10, 946 N.W.2d 507. A judgment 

on the merits in the first action between the same parties constitutes a bar to 

the subsequent action based upon the same claim or claims or cause of action. 

Id. at ¶ 11. The applicability of res judicata is a question of law, fully 

reviewable on appeal. Id. at ¶ 10.

[¶47] The district court did not err in ruling res judicata barred Joel Finstrom’s 

petition for allowance of his claim to an interest in Ruth Finstrom’s property.

Joel Finstrom consented to having that claim decided at trial. Joel Finstrom, 

Annette Hauser and James Finstrom testified about Joel Finstrom’s claim to 

Ruth Finstrom’s property. The issue of whether Joel Finstrom owned an 

interest in Ruth Finstrom’s property was litigated and decided at trial. 

Therefore, res judicata prevented him from raising the issue again in a 

subsequent proceeding involving the estate.

IV

[¶48] Annette Hauser contends the district court erred in denying her petition 

for formal probate of Ruth Finstrom’s 2011 will. Hauser’s petition alleged Ruth 

Finstrom lacked testamentary capacity when she executed her July 2015 will. 

Hauser argues the court erred in concluding the issues relating to Ruth 

Finstrom’s testamentary capacity were decided at the January 2019 trial.

[¶49] This Court has explained testamentary capacity:
14

“Testator must have sufficient strength and clearness of mind and 

memory, to know, in general, without prompting, the nature and 

extent of the property of which he is about to dispose, and nature 

of the act which he is about to perform, and the names and identity 

of the persons who are to be the objects of his bounty, and his 

relation towards them. He must have sufficient mind and memory 

to understand all of these facts; . . . . He must also be able to 

appreciate the relations of these factors to one another, and to 

recollect the decision which he has formed.”

Estate of Wagner, 551 N.W.2d 292, 296 (N.D. 1996) (quoting Stormon v. Weiss, 

65 N.W.2d 475, 504-05 (N.D. 1954)). Testamentary capacity is examined at the 

time of execution. Wagner, at 295. A will contestant must prove a lack of 

testamentary capacity by a preponderance of the evidence. Id. at 296. A 

determination of testamentary capacity, or the lack thereof, is a question of 

fact. Id. at 295.

[¶50] After trial, the district court found no credible evidence established that 

“Ruth [Finstrom] lacked [testamentary] capacity . . . when she executed the 

July 2015 Will.” The court found Ruth Finstrom signed her July 2015 will in 

the presence of an attorney and six of her seven children, including Hauser. 

The court found “[n]o evidence was provided that any of the siblings voiced 

concern and objection over Ruth’s capacity to contract at that time.” The court 

found that “[w]hile [Ruth Finstrom’s doctor] testified that Ruth may have had 

some capacity or memory problems in April of 2015, no other evidence was 

admitted showing Ruth lacked capacity when she signed the July 2015 Will.”

[¶51] The district court also found Ruth Finstrom’s 2015 will was her last valid 

will and testament. The court found the 2015 will expressly revoked the 2011 

will. The court’s findings on Ruth Finstrom’s testamentary capacity and the 

validity of her 2015 will have support in the record and are not clearly 

erroneous.

[¶52] The district court’s order denying Hauser’s petition concluded “[t]he 

claims raised in said Petition are barred by res judicata and were previously 

decided by the Court’s Findings of Fact, Conclusions of Law and Order for 
15

Judgment dated March 12, 2019.” The court discussed its decision at the

August 2019 hearing on Hauser’s petition:

“The Court has already decided these issues [raised in 

Hauser’s petition] are res judicata. The Court has already decided 

the seminal issues that would warrant a formal probate on the 

petition filed by Mr. Johnson in regards to this matter. Whether 

his client [Hauser] agrees with me or not, that’s a different issue; 

right? But I decided those, including conclusions of law starting at 

the bottom of page eight, the top of page nine and throughout the 

20-some page opinion of the Court from March 12, [2019].

“These issues were tried, fully litigated, fully briefed, fully 

discussed, the 2011 will, 2015 will, a couple days of testimony, 

competent, capable attorneys, written briefing, written 

submissions thereafter. The matter has been decided by the Court. 

The train has left the station, as it were.

“This matter was admitted to probate informally by and 

under the petition of James Finstrom, the original PR in regards 

to this matter. . . . I admitted this matter to probate a long time 

ago, and it was the 2015 will that was admitted to probate at that 

point in time.

“We’ve had litigation, undue influence, capacity, all those 

kinds of things have been addressed and have been more fully 

addressed in the court’s 20-some page opinion. I’m not going to 

restate them at this point in time. . . . The 2015 will was admitted 

to probate. That’s the will that stood up. That’s the last will and 

testament of Ruth Finstrom.

“The 2011 will has been rejected specifically by findings, 

conclusions and order in the court’s opinion of March 12, [2019]. I 

won’t go through them all, but the petition for a formal probate is 

denied.

“It is a true statement, as I’ve indicated both in my opinion 

and on the record and inquired of counsel in the January trial, 

certainly a true statement there have been aspects of a formal 

probate going on in this file for a long time. We were removing PRs 
16

and then by consent and adding a professional PR, Heartland 

Trust, a contested trial here having to do with undue influence, 

capacity, which will provides, multiple different wills, et cetera, 

multiple different oral agreements, all kinds of things that came 

up at the trial, and so this certainly has had a feel of a formal 

probate and supervised administration to a point throughout the 

process, so I’m not saying this has completely been informal. It 

hasn’t, okay?

“But I am saying that it was probated informally, it was 

submitted by James as then the PR. I’ve been probating it for years 

on at least a semi-formal basis, if you prefer. These issues have 

been litigated in regards to the matter. It’s res judicata. The Court 

has already found and concluded the 2015 will is the last will and 

valid testament of Ruth Finstrom.”

[¶53] Hauser asserts the district court erred in ruling res judicata prohibited 

her petition for formal probate of the 2011 will. She argues that at the time of 

the January 2019 trial, the only petition before the court was James Finstrom’s

petition for informal probate of the 2015 will and the 2011 will was not at issue 

at trial.

[¶54] “Informal proceedings” are “those conducted by the court for probate of a 

will or appointment of a personal representative without notice to interested 

persons.” N.D.C.C. § 30.1-01-06(25). Informal proceedings do not involve 

adjudication. Estate of Ketterling, 515 N.W.2d 158, 162 (N.D. 1994). “Formal 

proceedings” are those “conducted before a judge with notice to interested 

persons.” N.D.C.C. § 30.1-01-06(20). “A formal testacy proceeding is litigation 

to determine whether a decedent left a valid will.” N.D.C.C. § 30.1-15-01(1). “A 

contested hearing on whether the decedent left a valid will, after notice and 

before a judge, is ordinarily a formal testacy proceeding.” Ketterling, at 162. 

Under N.D.C.C. § 30.1-15-01(2), one may petition for formal probate of a will 

“without regard to whether the same or a conflicting will has been informally 

probated.”

[¶55] For res judicata purposes, an informal probate “is conclusive as to all 

persons until superseded by an order in a formal testacy proceeding.” N.D.C.C. 
17

§ 30.1-14-02. See also Ketterling, 515 N.W.2d at 162 (stating that in an informal 

proceeding, the determinations made generally have no res judicata effect but 

are protected by various statutes of limitation). However, in formal 

proceedings, interested persons given notice of the proceedings under N.D.C.C. 

§ 30.1-03-01 are bound by orders of the court. N.D.C.C. § 30.1-12-06. “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.” Ketterling, at 163. See also 96 C.J.S. Wills § 872 (2020) (“Any 

judgment rendered which determines the validity of a will is binding on all 

persons interested who were properly notified. . . . [A] judgment sustaining a 

will is res judicata on every ground which was, or could have been, litigated in 

that proceeding.”).

[¶56] Here, James Finstrom petitioned for informal probate of Ruth Finstrom’s 

2015 will in December 2016. James Finstrom provided notice of the probate to 

his six siblings. The proceedings became more formal in May 2017 when Mark 

Finstrom petitioned to remove James Finstrom as personal representative.

James Finstrom then filed a complaint against Schulz and Teresa and Daniel 

Finstrom, and Schulz and Teresa and Daniel Finstrom brought counterclaims 

against James Finstrom. Ruth Finstrom’s mental capacity, the validity of her 

2015 will, and Joel Finstrom’s claim involving the 2011 will were decided after 

a two-day trial at which six of the seven children were present. Notice of all 

proceedings was provided to all interested parties throughout this action.

[¶57] Although this probate action began informally, it later had the 

characteristics of a formal probate with a trial and other hearings. See

Ketterling, 515 N.W.2d at 162 (“A contested hearing on whether the decedent 

left a valid will, after notice and before a judge, is ordinarily a formal testacy 

proceeding.”). Hauser had notice of all proceedings and appeared at trial. The 

issue raised in Hauser’s petition for formal probate, Ruth Finstrom’s 

testamentary capacity, was decided at trial. The district court also found Ruth 

Finstrom’s 2015 will was valid and revoked her 2011 will.
18

[¶58] In light of the procedural posture of this case, Hauser was bound by the 

district court’s March 2019 order. The court did not err in concluding res 

judicata prohibited Hauser’s petition for formal probate of Ruth Finstrom’s 

2011 will.

V

[¶59] We have considered the parties’ remaining arguments and conclude they 

are without merit or not necessary to our decision. The orders and judgment 

are affirmed.

[¶60] Daniel J. Crothers

Douglas A. Bahr, D.J.

Gerald W. VandeWalle

Jerod E. Tufte

Jon J. Jensen, C.J.

[¶61] The Honorable Douglas A. Bahr, D.J., sitting in place of McEvers, J., 

disqualified.