North Dakota Supreme Court Highlights
By Scott O. Diamond, Joshua A. Swanson, and Ian McLean
Authors’ Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contains the authors’ summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in any given case.
In the Matter of the Guardianship and Conservatorship of G. I. C., 2025 ND 36. Filed on 2 / 13 / 25.
A husband and wife executed a revocable living trust agreement. The trust was intended to support the trustors during their lifetime and then distribute the trust’ s assets to their five children upon the death of both trustors. The trust’ s assets primarily consisted of farmland. The trust called for specific distributions of the land which favored one of the children,“ Luke”( a pseudonym used by the court).
Upon the husband’ s death, the district court appointed Bremer Trust as successor trustee and conservator of the wife’ s estate. Bremer assessed the trust as asset-rich but cash poor and petitioned the district court for the authorization to sell the farmland to fund the trust to pay for the trustor’ s increased need for care and comfort. All five children expressed a desire to avoid selling the land and the district court directed Bremer to pursue alternative financing. Bremer repeatedly sought to sell the trust’ s land to fund the trust and provide for the trustor’ s care. Each time,“ Luke” opposed the sale. Eventually, in July 2023, the district court authorized Bremer to sell the farmland. After a public auction, Bremer entered into purchase agreements for the farmland. The last trustor died in November 2023. The sales closed in December 2023.
Bremer petitioned the district court for an order directing the distribution of the trust assets in five equal shares to the children.“ Luke” opposed the petition, arguing each beneficiary is entitled to the net proceeds from the sale of the specific farmland parcels the beneficiary would have received had the land not been sold. The district court ruled in favor of Bremer and ordered equal distribution of the trust’ s assets to the five children.
On appeal, the North Dakota Supreme Court reversed and remanded for redistribution of the trust’ s assets proportionate to the value of the specific distributions of land. The Court reasoned the primary objective in construing a trust instrument is to ascertain the settlor’ s intent. The trust contained specific distributions which had the effect of leaving the majority of the trust’ s land to“ Luke.”
Bremer argued the trust, in its totality, reflected an intent to treat the children equally. The Supreme Court stated there was no dispute the value of the land designated for each child varied greatly. Immediately before the sale of the land, the children stood to receive property interests having significantly different values. After the sale, Bremer determined the five children stood to receive equal shares in the proceeds. The Supreme Court held it was most consistent with the Trustors’ intent as expressed in the trust agreement that each child receives a share of land sale proceeds proportionate to the value of the child’ s specific distributions. As the Court remanded for redistribution proportionate to the value of the specific distributions, it did not address arguments regarding nonademption of specific devises under N. D. C. C. 30.1-09-08.
Hoistad v. NDDOT, 2025 ND 45. Filed on 2 / 7 / 25.
A state trooper arrested Hoistad for driving under the influence. Hoistad consented to a breath test, which was conducted with the Intoxilyzer 8000. Under the approved method, the subject blows into the Intoxilyzer until the tone stops and the instrument displays a zero to the left of the decimal point, which indicates the collection of an adequate breath sample. While the trooper was obtaining the breath sample, he instructed Hoistad to blow into the Intoxilyzer, including 11 times after the Intoxilyzer tone stopped and the instrument registered a zero ahead of the decimal point. At the time the tone stopped, the number displayed on the instrument was below the legal limit. However, the instrument ultimately displayed a test result above the legal limit.
An administrative hearing was conducted. At the hearing, Hoistad objected to the admission of the breath test results, arguing the trooper violated the approved method by instructing Hoistad to continue blowing into the instrument after the tone stopped. The hearing office overruled Hoistad’ s objection and concluded the test was administered in accordance with the approved method. The Department of Transportation( DOT) did not provide expert testimony regarding the administration of the test. The hearing officer suspended his driving privileges for 91 days and Hoistad appealed.
Scott O. Diamond is a judicial referee for the East Central Judicial District of North Dakota.
Joshua A. Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law, construction and property law, and general litigation.
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation, municipal and education law, and criminal law.
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