In Re the Estate of McCue

OPINION

KLAPHAKE, Judge.

Decedent’s will was admitted to formal probate October 11,1988. On February 21, 1989, appellant moved the probate court for vacation of the order on the grounds of excusable neglect in having not earlier filed objections to the will. The court granted appellant’s motion limited to a contest on the execution of the will, and denied a hearing on claims of undue influence and lack of testamentary capacity. Appellant challenges the court’s partial denial of his motion, while respondent appeals the court’s decision to vacate on any ground. We affirm in part, reverse in part, and remand.

FACTS

Decedent Willard McCue (Willard), a retired farmer, had three sons, Paul, Mark and John, and one daughter, Sister Marilyn Marie McCue, S.S.N.D. Willard entered a nursing home in Cold Spring in October 1984, where, except for a six month period in 1985, he remained until his death on August 30, 1988.

On April 9, 1986, respondent Mark McCue (Mark) visited his father at the nursing home where the two discussed making changes in Willard’s will. Mark then drove to Mankato to talk to Willard’s attorney, Jack Regan, about the changes. Regan called Willard that afternoon, and the two talked for about ten minutes. After the conversation, Regan prepared a revised will. Along with the revised will, Regan prepared a letter detailing the changes made to the will, and the procedure for its proper execution.

The next day, Mark picked up the revised will and the letter from Regan and drove to Cold Spring to deliver them to his father at the nursing home. Mark claims to have then taken his father from the nursing home to the local bank to have the will executed. Two bank employees signed the will as witnesses, another notarized it.

After Willard’s death, the witnesses stated in affidavits that although their signatures on the will were authentic, neither of them remembered ever seeing Willard, and that on April 10, 1986 they may have only witnessed the signature of the notary. The notary stated she did not think she had ever seen Willard in person, and that she *511probably notarized the will at the request of a third party.

Willard’s original will established a small trust for his daughter, and made several small distributions to his grandchildren, but divided the bulk of the estate equally between Mark and one of his brothers, appellant John McCue (John). Willard’s third son, Paul, was not included in the will because of “the gifts, sales, and other provisions” made to him during Willard’s lifetime. When the will was revised in April 1986, the trust and the smaller distributions were continued. Mark’s share, however, represents approximately 97.5% of the estate or $470,000, while John’s share is $5,000.

Willard died on August 30, 1988. A hearing on the petition for formal probate of will was held on October 11,1988. John, who had recently been released from intensive care following a heart transplant, appeared at the hearing without counsel and requested a continuance of the hearing. The court denied the motion and entered an order for formal probate. On February 11, 1989, John moved to vacate the order for probate of the will. The court found that (1) John had a reasonable excuse for failing to object sooner to the allowance of Willard’s will, (2) John had acted with due diligence in bringing his motion, and (3) no substantial prejudice would result to the estate by granting the motion. The order for formal probate of the will was vacated on a finding that objections to the execution of the will were meritorious. However, a hearing on claims of undue influence and lack of testamentary capacity was denied.

ISSUE

Did the trial court abuse its discretion by granting appellant’s motion to vacate the order for formal probate of decedent’s will but limiting the hearing to the issue of its execution?

ANALYSIS

Minnesota law provides:

[T]he [probate] court shall have power to correct, modify, vacate or amend its records, orders and decrees:
* * * * * *
* * * [w]ithin two years after the date of filing of any record, order or decree, for excusable neglect, inadvertence or mistake. Minn.Stat. § 525.02(d) (1988).

The power of a probate court to vacate its order is the same as that of the district court. In re Estate of Weber, 418 N.W.2d 497, 501 (Minn.Ct.App.1988), pet. for rev. denied (April 4, 1988). An order denying a motion to vacate should not be reversed unless the denial constitutes an abuse of discretion. Weber, 418 N.W.2d at 502 (citing Howard v. Frondell, 387 N.W.2d 205, 207-08 (Minn.Ct.App.1986), pet. for rev. denied (Minn. July 31, 1986)).

To relieve a party from a final judgment for “excusable neglect” under Minn. R.Civ.P. 60.02, the Minnesota Supreme Court said:

[I]t is the duty of the trial court, in furthering justice by adopting a liberal policy conducive to the trial of causes on their merits, to grant a motion to open a * * * judgment and permit a party to answer, if the party * * * shows that he (a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) that no substantial prejudice will result to the other party.

Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952) (footnotes omitted) (emphasis in original). We conclude the same standard applies to a motion to vacate a probate order under Minn.Stat. § 525.02(d) (1988).

The trial court used the appropriate standard. The trial court found John “had a reasonable excuse for failing to object to the allowance of the will because of his health problem's.” The court also found John acted with due diligence in bringing his motion to vacate after he learned of the entry of judgment, and noted that Mark made no claim that he would be prejudiced by a hearing on the admissibility of the will *512to probate. The court reasoned that contradictory evidence over the validity of the execution of the will gave rise to a “meritorious defense in favor of the contestants.”

Respondent, however, argues that Willard’s will was self-proved and, consequently, proper execution is conclusively presumed.

[Compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal * * * unless there is proof of fraud or forgery affecting the acknowledgement or affidavit.

Minn.Stat. § 524.3-406(b) (1988).

Respondent acknowledges that this claim of conclusive “signature requirements” was not presented to the trial court. Nor did appellant argue at the trial level that the statements of witnesses and notaries established a fraud or forgery. The scope of review for an appellate court “is necessarily limited to issues which the record establishes were actually raised in, and decided by, the trial court. In re Estate of Magnus, 436 N.W.2d 821, 823 (Minn.Ct.App.1989) (citing Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982)). “Where the parties fail to fully litigate an issue below, we cannot determine it on appeal.” Magnus, 436 N.W.2d at 823 (quoting Fryhling v. Acrometal Products, Inc., 269 N.W.2d 744, 747 (Minn.1978)). We decline to address respondent’s arguments as outside the scope of review.

Whether or not the will here is a “self-proved” will, the execution irregularities claimed are substantial and support a color-able claim of fraud. We therefore find no abuse of discretion in the court finding a “meritorious defense in favor of the contestants.”

Having determined to vacate the order for formal probate of will, the trial court limited the hearing to the question of its execution. The court concluded there was insufficient evidence to support John’s claims that Willard lacked testamentary capacity and that Mark exercised undue influence over his father. We disagree and conclude the trial court erred in its analysis and application of the “reasonable defense on the merits” factor.

The trial court appeared to analyze the four Him factors as mutually exclusive. Although the right to relief from a judgment is not absolute, Howard, 387 N.W.2d at 207, it is not necessary that all four Him factors be satisfied equally.

In evaluating the existence and strength of these factors the relative weakness of one factor should be balanced against the strong showing on the other three.

Gelco Corp. v. Crystal Leasing, Inc., 396 N.W.2d 672, 674 (Minn.Ct.App.1986) (citing Guillaume Associates, Inc. v. Don-John Co., 371 N.W.2d 15, 19 (Minn.Ct.App.1985)).

A reasonable defense is presented if the moving party “raises a triable issue,” Lysholm v. Karlos, 414 N.W.2d 773, 775 (Minn.Ct.App.1987), and presents “more than conclusory allegations in [the] moving papers.” Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn.1988) (citing In re Livingston’s Estate, 117 Minn. 421, 423-24, 136 N.W. 8, 9 (1912)). “The existence of a meritorious defense may be established in an affidavit or by other proof.” Grunke v. Kloskin, 355 N.W.2d 207, 209 (Minn.Ct.App.1984) (citation omitted).

John offered evidence as to his father’s age, physical infirmity, lack of vision and medical evidence as to his senility. In addition, John offered evidence as to 5 of the 6 factors bearing on a determination of undue influence outlined in In re Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947). John’s evidence included: (1) Mark’s opportunity to exercise undue influence upon his father; (2) Mark’s participation in the preparation of the will; (3) the confidential relationship between Mark and his father; (4) the disinheritance of John, to wit: total distribution of $5,000; and (5) the singularity of the provisions in Mark’s favor, to wit: $470,000. John offered no direct evidence as to the exercise of influence or persuasion. However, “[d]irect evidence of undue influence is not required and is usually unobtainable because the influence is rarely exercised openly in the presence of oth*513ers.” In re Estate of Olson, 176 Minn. 360, 365, 223 N.W. 677, 679 (1929). We find this evidence presents colorable claims supporting appellant’s motion to vacate.

In its analysis of decedent’s testamentary capacity and Mark’s opportunity to exercise undue influence over his father, the dissent relies on affidavits presented by John Regan, decedent’s attorney, and Eileen Froehle, a social worker at the nursing home. The fact remains, however, that no real discovery has yet taken place in this case. Inasmuch as appellant will be allowed further discovery on the circumstances surrounding the execution of the will, and in the interest of having cases decided on their merits, we conclude appellant should also be allowed to engage in discovery on the additional issues as well.

DECISION

Inasmuch as the court found three of the Hinz factors clearly established, and vacated the order for formal probate of will, we find it was an abuse of discretion to limit the scope of the hearing on the merits to only one issue. We affirm vacation of the order for formal probate of the will. However, we reverse the disallowance of a hearing on the issues of testamentary capacity and undue influence and remand to allow John the opportunity to engage in pre-trial discovery and to raise all of his objections to his father’s will at a full hearing on the merits. At the hearing on appellant’s claim, however, the probate court is directed to determine: (1) whether the will is a self-proved will; and (2) if it is, whether the conclusive presumption as to signature requirements is inapplicable by fraud or forgery affecting the acknowledgement.

HUSPENI, J., concurs in part and dissents in part.