The first question in a Minnesota will contest is not whether the testator had capacity. It is who is paying for the litigation. The answer determines whether the case gets tried at all, and Minnesota’s answer is unusually generous to one side.
Minn. Stat. § 524.3-720 provides:
Any personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, or any interested person who successfully opposes the allowance of a will, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys’ fees incurred.
Read the two halves against each other. A person nominated as personal representative under any will recovers fees from the estate if he litigated in good faith — win or lose. An interested person who is not a nominated representative recovers only if he successfully opposes the will.
The Minnesota Court of Appeals confirmed the breadth of the first half in In re Estate of Torgersen, 711 N.W.2d 545 (Minn. Ct. App. 2006). The appellant there was nominated under a 1978 will that had not been admitted; he objected to the 2002 will and lost on both undue influence and capacity. The district court denied fees on the ground that he was not the personal representative. Reversed:
This provision allows not only personal representatives to recover attorney fees, but also specifically allows “nominated” personal representatives to recover, whether or not the will in which they are nominated is admitted to probate.
Id. at 554–55. The court remanded only for findings on good faith and reasonableness of the fees, noting that whether a challenger acted in good faith “is a question of fact.”
The practical consequence is straightforward and it is not widely appreciated: the person named as executor under an older will can contest a newer one, lose, and still have the estate pay his lawyer. That is a real asymmetry, and it should be identified in the first client meeting on either side of the case.
Who has to prove what?
Section 524.3-407 allocates the burdens, and the allocation is not intuitive:
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases … Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.
So the proponent proves only due execution, and only to a prima facie standard. Everything that actually matters in a contest — capacity, undue influence, fraud, duress, mistake, revocation — is the contestant’s burden, initially and ultimately.
The proponent’s small burden gets smaller still if the will was self-proved. Under § 524.3-406(b), “compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness,” absent proof of fraud or forgery affecting the acknowledgment or affidavit. A self-proved will effectively discharges the proponent’s § 524.3-407 burden on the papers. See what the self-proving affidavit actually buys.
The final sentence of § 524.3-407 sequences the trial: “If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.”
What does undue influence actually require?
Far more than a suspicious relationship. Torgersen states the standard, drawing on In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957): a contestant “must show that another person exercised influence at the time the testator executed the will to the degree that the will reflects the other person’s intent instead of the testator’s intent.” 711 N.W.2d at 550. And “[c]onjecture and suspicion are insufficient to prove undue influence.” Id. at 550–51.
The evidentiary bar is stated in the Minnesota Supreme Court’s language from In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn. 1981), as quoted in Torgersen, 711 N.W.2d at 551: the influence exerted must have been
“so dominant and controlling of the testator’s mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.”
“Mere puppet” is the operative phrase, and it is why most undue-influence claims that feel strong to a family fail in court. Being the child who drove Mom to appointments, lived with her, and ended up with more than the others is not, without more, undue influence.
The courts work through six factors, which Torgersen collects from In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969), and In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947):
(1) an opportunity to exercise influence; (2) the existence of a confidential relationship between the testator and the person claimed to have influenced the testator; (3) active participation by the alleged influencer in preparing the will; (4) an unexpected disinheritance or an unreasonable disposition; (5) the singularity of will provisions; and (6) inducement of the testator to make the will.
711 N.W.2d at 551. Torgersen itself is the useful illustration of how little factors (1) and (2) accomplish alone. The court accepted that the beneficiary’s household “had a confidential relationship with Torgersen and the opportunity to exercise influence” — and affirmed against the contestant anyway, because the record showed the drafting attorney met with the testator alone, the testator gave her own reasons for the disinheritance, and her hostility toward the excluded relatives traced to her own perception of their conduct toward her — including a three-page letter written by the contestant himself — rather than to anything the beneficiaries originated.
Factor (3) is the one that moves cases. Who selected the lawyer, who was in the room, who conveyed the instructions, who paid the fee. A drafting attorney who meets the testator alone and documents the stated reasons for an unequal disposition removes most of the oxygen from a later contest.
What does testamentary capacity require?
Less than people assume, and it is measured at a single moment.
The standard, as Torgersen states it from In re Estate of Healy, 243 Minn. 383, 386, 68 N.W.2d 401, 403 (1955), is that capacity exists if the testator knows
“the nature, situation, and extent of [her] property and the claims of others on [her] bounty … and [she] must be able to hold these things in [her] mind long enough to form a rational judgment concerning them.”
711 N.W.2d at 552. Section 524.2-501 supplies the statutory floor: “Any person 18 or more years of age who is of sound mind may make a will.”
Four factors are considered, collected in In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. Ct. App. 1986):
- reasonableness or naturalness of the property disposition;
- the testator’s conduct within a reasonable time before and after execution of the disputed will;
- prior adjudication involving the testator’s mental capacity; and
- expert testimony pertaining to the mental and physical condition of the testator.
Two doctrines cut hard against contestants here.
The threshold is lower than for ordinary business. “[L]ess mental capacity is required to make a will than to conduct regular business affairs.” Torgersen, 711 N.W.2d at 553–54 (quoting In re Estate of Prigge, 352 N.W.2d 443, 444–45 (Minn. Ct. App. 1984)). Evidence that the decedent could no longer manage a farm lease or balance an account is not evidence that she could not make a will.
A conservatorship does not decide it. “[E]ven a person under a conservatorship may have sufficient capacity to execute a will.” Torgersen, 711 N.W.2d at 554 (citing Congdon, 309 N.W.2d at 267). Anderson says the same from the other direction: “the subject of a conservatorship does not necessarily lack testamentary capacity,” and expert testimony “is not conclusive of testamentary capacity but only evidence to be weighed and considered.” 384 N.W.2d at 521.
Anderson is nonetheless the case contestants should read, because it is the rare one they won. The proponent lost on a combination the trial court found persuasive: a diagnosis of chronic senile dementia, conservatorship proceedings commenced in two states, observed disorientation, a will inconsistent with the decedent’s long-declared intentions under an earlier will, and an abrupt unexplained relocation shortly before execution. Id. at 520–21. The court of appeals affirmed under Minn. R. Civ. P. 52.01, because a finding is set aside only if the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Id. at 520 (quoting In re Estate of Congdon, 309 N.W.2d 261, 266 n.7 (Minn. 1981), which in turn quotes In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972)).
That standard of review is the other structural fact about these cases. Capacity and undue influence are findings of fact tried to the court. They are very hard to reverse in either direction, which means the contest is won or lost at trial and the appeal is rarely the play.
How long do you have to bring the contest?
Section 524.3-108 sets the outer limits. Most probate and appointment proceedings may not be commenced “more than three years after the decedent’s death,” subject to three exceptions. The third is the one that matters here:
(3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of 12 months from the informal probate or three years from the decedent’s death.
Read “the later of” carefully, because it runs the opposite way from how limitations language usually reads: the deadline is whichever date falls further out. Where the estate is opened promptly — the normal case — twelve months from informal probate lands well inside three years from death, so three years from death controls. The twelve-month branch only becomes the operative deadline in the minority of cases where informal probate was not opened until more than two years after the death, and there it extends the time rather than shortening it. A contestant who is eighteen months past the death and thirteen months past an informal probate is not time-barred.
Section 524.3-108 also carves proceedings “to construe probated wills, determine heirs of an intestate, or proceedings to determine descent” out of the limits entirely.
If you are thinking about contesting
- Find out whether an older will names you as personal representative. If it does, § 524.3-720 changes your risk profile entirely, and Torgersen is the case that says so.
- Get the drafting attorney’s file early. Who initiated contact, who was present, and what reasons the testator gave are factors (3) and (4) of the undue-influence test and factor (2) of the capacity test at the same time.
- Do not build the case on the disposition alone. An unequal or surprising will is one factor out of six, and in Torgersen the court declined to find a disposition unreasonable merely because it looked that way from outside the testator’s own perspective — though that was a clear-error review of the record on the capacity factors, 711 N.W.2d at 552, not a holding about undue influence.
- Check whether the assets are even in the estate. A contest over a will is worthless if the money moved by beneficiary designation or a funded trust. Trust instruments have their own and much shorter contest deadline.
- Consider whether the real claim is elsewhere. A surviving spouse’s elective share, the premarital-will statute, and financial exploitation of a vulnerable adult are separate theories with separate burdens, and they do not require proving the testator was a puppet.
Madgett Law, LLC
We try Minnesota will contests on both sides — proving and defending testamentary capacity and undue influence, obtaining and resisting fee awards under § 524.3-720, and evaluating early whether a contest is worth bringing given where the assets actually sit. If a Minnesota will has been offered for probate and you believe it does not reflect what the decedent wanted, call 612-470-6529 or send us a message.
Sources: Minn. Stat. § 524.3-720 (expenses in estate litigation; a personal representative or person nominated as personal representative who defends or prosecutes in good faith, whether successful or not, or any interested person who successfully opposes allowance of a will, recovers necessary expenses and reasonable attorneys’ fees from the estate). Minn. Stat. § 524.3-407 (burdens in contested cases: proponents prove prima facie due execution; contestants bear lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation; ultimate burden of persuasion follows the initial burden; ordering of a later-will or intestacy contest). Minn. Stat. § 524.3-406(b) (self-proved will; conclusive presumption of compliance with signature requirements). Minn. Stat. § 524.2-501 (18 years of age and of sound mind). Minn. Stat. § 524.3-108(3) (contest of an informally probated will within the later of 12 months from the informal probate or three years from death; construction, heirship, and descent proceedings excluded from the limits). In re Estate of Torgersen, 711 N.W.2d 545 (Minn. Ct. App. 2006), read in full from the Caselaw Access Project archive at static.case.law/nw2d/711/html/0545-01.html: at 550 (contestant’s burden under § 524.3-407; undue influence must be exercised at the time of execution so that the will reflects the influencer’s intent, citing In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957); conjecture and suspicion insufficient); at 551 (“so dominant and controlling of the testator’s mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence,” quoting In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn. 1981); the six undue-influence factors, citing In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969), and In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947); the court’s treatment of the confidential relationship and opportunity findings); at 552 (testamentary capacity standard, quoting In re Estate of Healy, 243 Minn. 383, 386, 68 N.W.2d 401, 403 (1955)); at 553 (“[l]ess mental capacity is required to make a will than to conduct regular business affairs,” quoting In re Estate of Prigge, 352 N.W.2d 443, 444–45 (Minn. Ct. App. 1984)); at 553–54 (a person under a conservatorship may have sufficient capacity, citing Congdon, 309 N.W.2d at 267); at 554 (§ 524.3-720 quoted and construed to allow a nominated personal representative to recover whether or not the will nominating him is admitted; good faith is a question of fact; remand). In re Estate of Anderson, 384 N.W.2d 518 (Minn. Ct. App. 1986), read in full from the Caselaw Access Project archive at static.case.law/nw2d/384/html/0518-01.html: at 520 (the four testamentary-capacity factors; the clearly-erroneous standard under Minn. R. Civ. P. 52.01, quoting In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972)); at 520–21 (the five grounds on which the trial court found lack of capacity); at 521 (the subject of a conservatorship does not necessarily lack testamentary capacity; expert testimony is evidence to be weighed, not conclusive). Reporter citations for Torgersen and Anderson were taken from the Caselaw Access Project’s structured case metadata, not from opinion body text. Statutory text retrieved from the Minnesota Office of the Revisor of Statutes (2025 edition); no pending-amendment banner appeared on any section cited. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Capacity and undue influence are findings of fact reviewed for clear error, and every case turns on its own record. No outcome is promised or implied.