concurring specially.
I concur in the result that this case is not appropriate for summary judgment. From my analysis of the issues in this case findings of fact as distinguished from a recitation of undisputed facts are necessary to resolve some of the issues, and therefore summary judgment is not appropriate. Albers v. Nodak Racing Club, 256 N.W.2d 355 (N.D.1977). See also, Roeders v. City of Washburn, 298 N.W.2d 779 (N.D.1980). This applies particularly to the intent of the testator regarding the transfer of property to his wife outside the will before his death.
I agree with the trial court that the one-third elective share of the augmented estate provided for in North Dakota Century Code § 30.1-05-01 may be used as a guide or standard in determining whether or not the amount transferred outside of the will to his wife before his death was intended to constitute a transfer in lieu of testamentary provision.
The editorial board comment under § 30.-1-06-01 which sets out the right of an “omitted spouse,” states:
“The effect of this section should be to reduce the number of instances where a spouse will claim an elective share.”
Also, under § 30.1-05-02, which sets out the composition of the augmented estate, the editorial board comment states:
“Likewise, for policy reasons life insurance is not included in the first category of transfers to other persons, because it is not ordinarily purchased as a way of depleting the probate estate and avoiding the elective share of the spouse; but life insurance proceeds payable to the surviving spouse are included in the second category, because it seems unfair to allow a surviving spouse to disturb the decedent’s estate plan if the spouse has received ample provision from life insurance. In this category no distinction is drawn as to whether the transfers are made before or after marriage.”
This is an indication that the one-third elective share of the augmented estate is applicable under all circumstances and therefore the one-third elective share is a good standard or guide in determining if the testator intended a transfer in lieu of a testamentary provision. The one-third elective share in a limited sense constitutes a floor for the spouse. This supports rather than detracts from it being used as a standard or guide in determining whether or not the testator intended to adequately pro*461vide for the spouse outside of the will. The fact that the statute does not provide for an elective share for pretermitted children, similar to the elective share to the spouse, does not alter the situation that the elective share under § 30.1-05-01 may be used as a measuring guide or standard in determining the adequacy of the transfer outside of the will.
In this instance, Susan was the beneficiary of the life insurance policy. Consequently, the question rises, if this was in lieu of not being included in the will, or was it for some other purpose not related to the will. In short, the intent of the testator needs to be determined in the transfer of the property to the spouse, including the spouse being named as beneficiary in the insurance policy. This requires a finding of fact, and as a result the case is not appropriate for summary judgment.