                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0660

                         In re: Estate of James G. Lindell, Deceased

                                 Filed December 29, 2014
                                        Affirmed
                                      Hooten, Judge

                             Washington County District Court
                                 File No. 82-PR-11-5383

Joseph F. Schmidt, Minneapolis, Minnesota (for appellant Nancy Lindell)

Andrew M. Baese, Benjamin E. Gurstelle, Diane B. Bratvold, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for respondents James Lindell, Jr., Marty Lindell, and U.S.
Bank National Association)

         Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         In this probate appeal, appellant challenges the district court’s summary-judgment

denial of her objection to the probate of decedent’s will, arguing that the district court

erred in determining that decedent’s house was no longer his homestead at the time of his

death. We affirm.
                                          FACTS

       The material facts in this case are undisputed. James G. Lindell, Sr. (decedent)

died on August 25, 2011. Respondents James G. Lindell, Jr., Marty J. Lindell, and U.S.

Bank are decedent’s duly appointed personal representatives. James G. Lindell, Jr. and

Marty J. Lindell are decedent’s sons. Appellant Nancy J. Lindell is decedent’s former

daughter-in-law, who objected to the probate of decedent’s will, claiming that decedent’s

real property in Woodbury, Minnesota (the Woodbury house) was his homestead at the

time of his death. The Woodbury house was jointly owned by decedent and his wife,

Jean Lindell, who predeceased him.

       Decedent’s will, as amended by three codicils, directs respondents to make certain

devises and then distribute the residue of the estate equally between a marital trust and a

family trust created under the will. The will provides:

              I devise to the trustees of the [marital trust] . . . any interest
              that I may own at my death . . . in any homestead real estate
              . . . . If my wife, Jean, does not survive me, then I devise any
              interest described in the preceding sentence to the trustees of
              the [family trust] . . . .

(Emphasis added). This devise would be applicable only if decedent owned an interest in

“homestead real estate” at the time of his death. If the Woodbury house was decedent’s

homestead at the time of his death, his interest in it would be transferred to the family

trust, from which appellant would receive $200,000. If the property was not decedent’s

homestead when he died, his interest in it would pass under decedent’s will, under which

appellant would receive nothing.




                                              2
       Upon her death, Jean Lindell’s ownership interest in the Woodbury house was

transferred to the marital trust. Jean Lindell’s will provided that decedent had the right to

live in and use the Woodbury house for as long as he desired. In addition, the will stated

that the trustees of the marital trust “shall sell the trust’s interest in any [homestead] real

estate” at the direction of decedent.

       Decedent planned and explicitly directed that, when he was no longer able to make

decisions for himself, his agents and attorneys-in-fact would make those decisions for

him. James G. Lindell, Jr., Marty J. Lindell, and Patrick M. Farley were appointed by

decedent as his attorneys-in-fact pursuant to a statutory short form power of attorney

executed in 2001. The power of attorney granted the attorneys-in-fact all the statutory

powers and stated that it would “continue to be effective if [decedent became]

incapacitated or incompetent.” Further, by a durable power of attorney for health care

executed in 2003, decedent appointed his son, James G. Lindell, Jr., as his agent to make

any health-care decisions for decedent at such time decedent was unable to make or

communicate his own decisions.

       Decedent suffered from Alzheimer’s disease for several years before his death.

Because of decedent’s condition, his family held regular meetings concerning his care

and well-being. As early as 2004, the family discussed “alternative living arrangement

opportunities for [decedent], if he ever decide[d] to move from his home.” For a number

of years after his diagnosis, decedent was able to stay in the Woodbury house with the

assistance of a combination of professional health-care workers and non-professional

companions, including appellant, who was employed to care for decedent two days per


                                              3
week.    By 2005, as decedent’s condition declined, he ultimately needed 24-hour

supervision.   Due to his disease, decedent became unable to recognize his family

members and no longer knew where he was.

         In 2008, decedent’s treating physician concluded that, as a result of chronic and

irreversible dementia, decedent required “others to make economic and health care

decisions on his behalf.” This letter triggered the health-care power of attorney and gave

James G. Lindell, Jr. the authority to make health-care decisions for decedent, including

whether to permanently move decedent from the Woodbury house.

        Eventually, living at home was no longer an option for decedent because he

needed more care than his in-home caregivers could provide. Because of his deteriorated

mental and physical state, decedent’s children finally decided, on July 18, 2011, to

evaluate several skilled nursing facilities at which decedent would reside going forward.

The family collectively decided that it was “the right time” to explore moving decedent to

a nursing facility so he could receive around-the-clock care. By this time, decedent’s

daughter was living with him in the Woodbury house.

        After extensive searching, decedent’s attorneys-in-fact applied for residency for

decedent at Prelude Homes Memory Care Cottages (Prelude Homes) by signing a

reservation agreement and paying a reservation deposit on August 9, 2011. At the family

meeting on that date, the family discussed the transition and the attributes of Prelude

Homes, as well as discharging the care providers at the Woodbury house, including

appellant. The family also “discussed changing the locks on the house after [decedent]

le[ft].” Decedent’s daughter indicated that she would move out of the Woodbury house


                                            4
when decedent left and that she would periodically check on the house until it sold. The

family agreed that its attorney would draft a letter directing that the Woodbury house

would be immediately listed for sale with a realtor and that decedent’s attorneys-in-fact,

who had the power to enter into real-estate transactions on behalf of decedent, would sign

the letter. The family also discussed removing all tangible personal property from the

Woodbury house in connection with readying it for sale.

       James G. Lindell, Jr. and Marty J. Lindell moved their father to Prelude Homes on

August 15, 2011. Because decedent’s deteriorating condition required the around-the-

clock care afforded to him at Prelude Homes, decedent’s attorneys-in-fact had no

intention of returning decedent to the Woodbury house. In an August 16, 2011 letter,

James G. Lindell, Jr. and Marty J. Lindell notified the trustees of the marital trust that

decedent would “no longer be residing at [the Woodbury house]” and directed the

trustees to sell the trust’s interest in the Woodbury house. The letter further stated that

“[a]s attorneys-in-fact, we intend to sell [decedent’s] interest in the real estate. We

recommend that the property be listed for sale as soon as possible, and that a listing

agreement be signed by the trustees . . . as well as ourselves as attorneys-in-fact for

[decedent].”

       Shortly thereafter, the Woodbury house was marketed for sale. While decedent

was residing at Prelude Homes and after the sale of the Woodbury house had been put in

motion, decedent died on August 25, 2011. No homestead notice was ever filed for the

Woodbury house after decedent moved out. The Woodbury house remained unoccupied

until it was eventually sold after decedent’s death.


                                              5
       Based on these uncontested facts, the parties filed cross-motions for summary

judgment, arguing that whether the Woodbury house was decedent’s homestead at the

time of his death was a question of law. In March 2014, the district court issued an order,

concluding that the Woodbury house was not decedent’s homestead at the time of his

death because he ceased to occupy the house and had no intention to return once he

moved to Prelude Homes. Accordingly, the district court granted respondents’ motion

and denied appellant’s motion. This appeal followed.

                                     DECISION

       Appellant argues that the district court committed reversible error by granting

respondents’ motion for summary judgment because decedent had not abandoned the

Woodbury house by the time of his death.

       Summary judgment is proper if “there is no genuine issue as to any material fact

and . . . either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03.

Whether a homestead has been abandoned is generally a mixed question of law and fact.

In re Estate of Riggle, 654 N.W.2d 710, 714 (Minn. App. 2002). However, “[w]here, as

here, there were cross-motions for summary judgment by the parties and both parties

agree that there are no genuine issues of material fact, we review the district court’s

application of the law de novo.” MidCountry Bank v. Krueger, 782 N.W.2d 238, 244

(Minn. 2010).

       “[C]ourts read debtor-creditor statutes pertaining to homesteads to fill in the

relevant gaps in the probate statutes.” In re Estate of Eckley, 780 N.W.2d 407, 410

(Minn. App. 2010). Under Minnesota law, a homestead is “[t]he house owned and


                                             6
occupied by a debtor as the debtor’s dwelling place, together with the land upon which it

is situated.” Minn. Stat. § 510.01 (2012). “Property ceases to be the owner’s homestead

when the owner abandons his home.” Eckley, 780 N.W.2d at 410 (discussing Minn. Stat.

§ 510.07 (2008)).1

       Under the common law, “abandonment of a homestead has two basic components:

cessation of occupancy and lack of an intent to return.” Riggle, 654 N.W.2d at 714–15;

see also In re Hickman, 222 Minn. 161, 168, 23 N.W.2d 593, 597 (1946) (“Abandonment

of a homestead results when the owner removes therefrom and ceases to occupy the

same, with the intention of never returning or with no intention of returning thereto to

reside.” (emphasis omitted) (quotation omitted)). Abandonment of a homestead must be

proven by clear and convincing evidence. Id. at 715.

       An owner ceases to occupy his homestead if he no longer actually and

continuously occupies the property. See Clark v. Dewey, 71 Minn. 108, 110, 73 N.W.

639, 640 (1898) (“[T]here must be actual and continued occupation of and residence

upon the premises in order to constitute a homestead . . . .”). “Of course, the term ‘actual

occupancy’ must receive a reasonable construction, and is not to be understood as

requiring constant personal presence, so . . . that a temporary absence . . . would

constitute . . . an abandonment.” Id.

       At the direction of decedent’s attorneys-in-fact and health-care agent, decedent

moved into Prelude Homes on August 15, 2011. Pursuant to a durable power of attorney


1
 The language from Minn. Stat. § 510.07 (2012) that is relevant to the present case is
unchanged since 2008.

                                             7
for health care, decedent’s health-care agent, respondent James G. Lindell, Jr., had the

authority “to make health care decisions on behalf of” decedent, including the authority

to establish decedent’s abode to meet his health-care needs. Minn. Stat. § 145C.01,

subd. 4 (2012). The decision to move decedent to Prelude Homes was carefully thought

out and planned by decedent’s family, and his attorneys-in-fact and health-care agent

intended the move to be permanent. This is not the type of “temporary absence” Justice

Mitchell warned of in Clark, when he observed that “the term ‘actual occupancy’ . . . is

not to be understood as requiring constant personal presence, so as to make a man’s

residence his prison.” 71 Minn. at 110, 73 N.W. at 640. Here, as of August 15, 2011,

decedent no longer occupied or resided at the Woodbury house, and there was no

evidence that his absence from the house was temporary. On these undisputed facts,

there is clear and convincing evidence that, prior to his death on August 25, 2011,

decedent ceased to occupy the property.

      Whether decedent lacked intent to return to the Woodbury house when he ceased

occupation is a more difficult question. Intent is determined by looking to conduct in

addition to stated intentions. Riggle, 654 N.W.2d at 715. Factors to consider include

whether the owner had established another residence and whether other occupants, such

as a surviving spouse, continued to reside at the property. See id. Intent to abandon a

homestead need not be an active intent not to return; instead, the owner must cease

occupancy “with the intention of never returning or with no intention of returning.”

Hickman, 222 Minn. at 168, 23 N.W.2d at 597 (emphasis omitted).




                                           8
       Because decedent suffered from Alzheimer’s disease, he was incapable of forming

intent to return to the Woodbury house after he relocated to Prelude Homes. In a limited

sense, this shows that decedent “lack[ed] . . . an intent to return.” Riggle, 654 N.W.2d at

715. However, by itself, this negative proof does not establish by clear and convincing

evidence that decedent lacked intent to return.

       Appellant argues that, under these circumstances, neither decedent nor his

attorneys-in-fact could make decisions regarding the abandonment of the Woodbury

house. But, in 2001, decedent executed a statutory short form durable power of attorney,

under which “[a]ny action taken by the attorney[s]-in-fact pursuant to the power of

attorney binds the principal . . . in the same manner as though the action was taken by the

principal.” Minn. Stat. § 523.12 (2012).          Decedent’s intent may be determined by

looking to his conduct, Riggle, 654 N.W.2d at 715, and under section 523.12, decedent’s

execution of a durable power of attorney indicated his intention that he was to be bound

by the conduct of his attorneys-in-fact.

       On August 9, 2011, the attorneys-in-fact applied for residency for decedent at

Prelude Homes by signing a reservation agreement and paying a reservation deposit.

After decedent moved to Prelude Homes, the attorneys-in-fact directed that the

Woodbury house should be immediately listed with a realtor and sold. Under the durable

power of attorney, the attorneys-in-fact had the authority to “dispose of . . . any estate or

interest in real property.” Minn. Stat. § 523.24, subd. 1(2) (2012). In a letter dated

August 16, 2011, the attorneys-in-fact notified the trustees of the marital trust that

decedent would “no longer be residing” at the Woodbury house and directed the trustees


                                             9
to sell the trust’s interest in the Woodbury house. The letter also stated that the attorneys-

in-fact intended to sell decedent’s interest in the Woodbury house and recommended that

the property be listed for sale as soon as possible. Finally, after decedent moved to

Prelude Homes, his family discussed changing the locks of the Woodbury house,

removing all tangible personal property from it, and having decedent’s daughter move

out of the Woodbury house. On this record, the actions taken by the attorneys-in-fact

demonstrate by clear and convincing evidence that decedent lacked intent to return to the

Woodbury house.

       In rejecting appellant’s argument that decedent cannot be bound by the conduct of

the attorneys-in-fact, the district court explained,

              [Appellant’s] position is really distilled to her claim that an
              attorney-in-fact cannot, as a matter of law, make decisions
              which result in the abandonment of the principal’s
              homestead. . . . It is unclear[, however,] how an attorney-in-
              fact can have the authority to dispose of any interest in real
              property, but not have the authority to retain that property and
              abandon its homestead status.

We agree with the district court’s reasoning. Abandoning a property’s homestead status

is less drastic than disposing of the property and would be a prerequisite to conveying

homestead property to certain third parties.           Because the attorneys-in-fact had the

authority to “dispose of . . . any estate or interest in real property,” id., it is illogical to

conclude, as a matter of law, that the attorneys-in-fact lacked the authority to abandon the

homestead status of decedent’s property.

       Appellant argues that decedent did not abandon his homestead, citing Minn. Stat.

§ 510.07 (2012) and Eckley. Under section 510.07, “[a] homestead is deemed abandoned


                                              10
if the owner does not occupy it for more than six consecutive months and the owner does

not file notice with the county recorder claiming it as his homestead,” even if the owner

intends to return. See Eckley, 780 N.W.2d at 410 (citing Minn. Stat. § 510.07 (2008)).

However, if the owner is mentally incapacitated to the point of being under a legal

disability, he is not required to file notice in order to maintain the homestead status of his

property in the event of an absence longer than six months. Id.

       These two rules for abandonment of a homestead—the common-law rule and the

rule from section 510.07—are distinct:

              While abandonment of a homestead is ordinarily a question
              of actual cessation of occupancy plus intent, we have held . . .
              that the addition [by] the legislature of the 6-month vacancy
              rule means that the homestead exemption is lost after 6
              months unless the person has filed [notice], no matter what
              the person’s intention.

Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn. 1981) (emphasis added); see also

Kramer v. Lamb, 84 Minn. 468, 469–70, 87 N.W. 1024, 1025 (1901) (discussing the

interaction between these two rules).       Thus, the requirements for maintaining the

homestead exemption under section 510.07 are inapplicable where the owner, under the

common law, has abandoned the property. See Muscala, 310 N.W.2d at 698. In any

event, the notice requirement under section 510.07 is relevant only where the owner has

ceased to occupy his homestead for longer than six months and intends to return to the

property. See Ries v. Thiesse, 61 F.3d 631, 632 n.1 (8th Cir. 1995) (directing the

bankruptcy court to apply Minnesota’s common-law abandonment rule because the

debtor had ceased to occupy her homestead for less than six months). Because decedent



                                             11
abandoned the Woodbury house under the common-law rule, section 510.07 was never

triggered.

          Appellant’s reliance upon Eckley is also misplaced. In Eckley, the decedent was

absent from his home for over six months and never filed a homestead notice, but he was

under a legal disability due to mental incapacity. See 780 N.W.2d at 409. Moreover, by

every indication, the decedent intended to return to his home so he could join his new

wife once her immigration problems were resolved. See id. at 409–12. This court thus

held that the decedent did not abandon his homestead pursuant to the legal-disability

exception to section 510.07. Id. at 412.

          This case is distinguishable from Eckley. Here, at the time of decedent’s death

only ten days after he left the Woodbury house and moved into Prelude Homes, there was

clear and convincing evidence that he ceased to occupy the property and lacked intent to

return.

          Because there was clear and convincing evidence that decedent abandoned the

Woodbury house as his homestead, and he therefore did not own any interest in any

homestead real estate at the time of his death, the district court did not err in concluding

that respondents were entitled to judgment as a matter of law.

          Affirmed.




                                             12
