Bravera Wealth v. Catherine Hansen Dietemann

Bravera Wealth v. Catherine Hansen Dietemann, Lauren Dietemann, and William Anthony Hansen

2025 ND 220, No. 20250206

North Dakota Supreme Court, Appeal from District Court of Stark County, Southwest Judicial District

Relevant Facts

• William C. Hansen and Verna Hansen executed a Revocable Trust Agreement in December 1997

• The trust agreement instructed the trustee to hold separate shares for the benefit of each settlor

• Upon William C. Hansen’s death, his separate share was to be held according to a paragraph titled ‘Residuary Trust’

• The trust contained a ‘Revocable Trust’ provision stating each settlor expressly reserves the right to amend or revoke the instrument as it relates to their respective separate trust

• The provision stated each settlor expressly waives those rights as to the trust as established or created by the other settlor

• The provision explicitly states neither settlor shall have any control or power of any kind over the other’s separate share or trust fund

• William C. Hansen signed a durable power of attorney on the same day as the trust, naming Verna Hansen as attorney in fact

• Verna Hansen, acting as William C. Hansen’s attorney in fact, amended the trust agreement in April 1998 and January 1999

• The amendments changed the instructions for distribution upon Verna’s death

• William C. Hansen died in February 1999, William A. Hansen died in 2017, and Verna A. Hansen died in 2019

• Bravera Wealth, as trustee, filed a petition in 2024 for an order declaring beneficiary rights

Legal Issues

• Whether an agent acting under a power of attorney has authority to amend a trust agreement, specifically whether N.D.C.C. § 59-14-02(5) requiring express written authorization applies to amendments made after July 31, 2007

• Whether the trust agreement itself provided express authorization for agents to amend the trust through the general provisions regarding property management and transfers

• Whether the amendments are valid despite the prohibitory language in the trust limiting each settlor’s power over the other settlor’s separate share

Positions of the Parties

• William Anthony Hansen (Tony) argued the amendments are invalid because N.D.C.C. § 59-14-02(5) requires express authorization for an agent to amend a trust, and the power of attorney and trust agreement contain no such express authorization, only general business powers that are insufficient to meet the express authorization requirement

• Catherine Hansen Dietemann and Lauren Dietemann argued the amendments are valid because N.D.C.C. § 59-14-02(1) provides alternative authority, the power of attorney grants explicit powers to transfer property to trusts and make gifts that together authorize amendment, and the express authorization requirement does not apply to trusts created before August 1, 2007

Decision of the Court and Reasons

The North Dakota Supreme Court reversed the district court’s judgment and remanded the case. The court held that the district court erred in not applying N.D.C.C. § 59-14-02(5) express authorization requirement when deciding whether the amendments are valid. The court found that the only language in the trust concerning amendments is prohibitory, with Verna Hansen expressly waiving her right to amend or revoke the trust created by William C. Hansen and having no control or power over his separate share. The court determined that the general provisions in the power of attorney—even though they included explicit powers to transfer property to trusts and make gifts—do not specifically indicate she had authorization to amend the trust. The word ‘express’ means clearly and unmistakably communicated, stated with directness and clarity, and general provisions are insufficient to satisfy this requirement. Absent express written authorization, the amendments are invalid under N.D.C.C. § 59-14-02(5). The judgment was reversed and remanded for a declaration of beneficiary rights according to the original trust terms.