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In re Estate of Morrell

Court of Appeals of Nebraska

September 16, 2014

IN RE ESTATE OF JOHANNA M. MORRELL, DECEASED. DAVID THOMPSON AND KATHLEEN THOMPSON, COPERSONAL REPRESENTATIVES OF THE ESTATE OF JOHANNA M. MORRELL, DECEASED, AND MARCELLA NAU ET AL., APPELLEES,
v.
LEE LORENZ, APPELLANT

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Appeal from the County Court for Douglas County: LAWRENCE E. BARRETT, Judge.

Gerald D. Johnson, of Johnson & Pekny, L.L.C, for appellant.

Mallory N. Hughes and Stuart Dornan, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellees David Thompson and Kathleen Thompson.

Steven J. Riekes and David P. Wilson, of Marks, Clare & Richards, L.L.C., for appellees Marcella Nau, Frida Brohan, and Edmund Roessler.

MOORE, PIRTLE, and RIEDMANN, Judges.

OPINION

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[22 Neb.App. 386] Pirtle, Judge.

INTRODUCTION

Lee Lorenz appeals from two orders of the county court for Douglas County. The first is an order finding that a will executed by Johanna M. Morrell in March 2011 was of no force and effect. The trial court found there was no genuine issue of material fact in regard to whether the March 2011 will was the result of Lorenz' undue influence and granted partial summary judgment in favor of Marcella Nau, Frida Brohan, and Edmund Roessler, Johanna's siblings, and of David Thompson and Kathleen Thompson, the copersonal representatives of Johanna's estate under a September 2010 will. The second order from which Lorenz appeals is an entry of summary judgment in favor of the siblings resulting in the dismissal of Lorenz' objection to probate of Johanna's September 2010 will. For the reasons that follow, we affirm both orders of the county court.

BACKGROUND

Lorenz befriended an elderly couple--Johanna and her husband, Wilson Morrell--in approximately 2007. Wilson was ill at the time, and Lorenz drove Johanna back and forth to see Wilson while he was in a hospital, skilled nursing care, and later, hospice care. Lorenz also made changes to the couple's home to make it handicapped accessible for Wilson so he could be released from skilled nursing care and live at home. As Wilson's health continued to decline, Lorenz helped the Morrells with their financial affairs and in completing their tax returns. Wilson died in November 2009. After Wilson died, Lorenz continued to assist Johanna with various matters. [22 Neb.App. 387] Lorenz contends that he regarded Johanna as a second mother and that she treated him like a son.

Johanna and Wilson had one son, who predeceased them both. Johanna had three living siblings, namely Nau, Brohan, and Roessler. The three siblings all lived on the east coast and had visited Johanna only twice in the 40 years prior to her death, the last time being in September 2010. On September 13, 2010, Johanna executed a will leaving her property to her siblings, the only family she had.

Johanna began showing some signs of dementia in 2009. On October 28, 2010, Lorenz filed a petition for appointment of a guardian-conservator, requesting that he be appointed guardian-conservator for Johanna. The petition was prepared and submitted by Ralph E. Peppard, an attorney in Omaha. On the same day, the Department of Health and Human Services, Adult Protective Services (the Department), also filed a petition for appointment of a guardian-conservator based on its investigation regarding Johanna's finances' being taken advantage of and her inability to protect herself. The Department requested that Mark Malousek, an attorney, be appointed as Johanna's guardian-conservator. The Department also filed an objection to the appointment of Lorenz as Johanna's guardian-conservator because the Department was investigating Lorenz for the financial exploitation of Johanna. Malousek was appointed temporary guardian-conservator on October 28 and was appointed permanent guardian-conservator in April 2011.

On March 11, 2011, Johanna executed another will, this time leaving her entire

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estate to Lorenz. Johanna died in January 2012, at the age of 84.

On January 25, 2012, the Thompsons, as copersonal representatives of Johanna's estate under her September 2010 will, petitioned for the probate of the September 2010 will. Lorenz filed an objection to probate of the will.

On February 9, 2012, Lorenz petitioned for the probate of Johanna's will dated March 11, 2011. Johanna's siblings and the Thompsons objected to the probate of that will.

On March 14, 2013, Johanna's siblings filed a motion for partial summary judgment asking the court to declare the [22 Neb.App. 388] March 2011 will invalid and of no effect. The motion alleged that the will was invalid because at the time it was executed, Johanna was under guardianship and lacked the capacity to make the will as propounded, and because the will was the product of undue and unlawful influence by Lorenz, who manipulated Johanna into signing an instrument which left all of her possessions to him upon her death.

A hearing was held on the motion for partial summary judgment. The evidence presented by the siblings and copersonal representatives showed that in March 2009, Johanna's physician, Dr. Heather Morgan, diagnosed Johanna with " mild cognitive impairment," and that by October 2009, her memory had declined and testing showed that she most likely had " dementia of the Alzheimer's type." In September 2010, Morgan indicated that " [d]ue to [Johanna's] functional and cognitive impairments, she is unable to make informed decisions about her general over all well being and health." Morgan recommended that a guardian-conservator be appointed on Johanna's behalf. Morgan opined that Johanna had lacked decisionmaking capacity since October 2009.

In October 2010, Johanna underwent a neuropsychological evaluation done by Dr. Nadia Pare which confirmed a diagnosis of " [d]ementia, possible Alzheimer's disease etiology, very mild severity." Pare concluded that Johanna had the capacity to make her own medical and financial decisions, but found her to be a vulnerable adult, at risk of being financially exploited, " given . . . Lorenz' emotional manipulation described by [Johanna] and by her current [power of attorney]." Pare testified at the guardianship proceedings that Lorenz had reportedly told Johanna that he had all her money and did not need her anymore. Johanna reportedly said that she felt " stupid" because she believed that she and Lorenz were in a romantic relationship.

The siblings and copersonal representatives also presented a report from the Department, dated December 1, 2010, determining that Johanna was considered a vulnerable adult because she had lacked capacity and been " unable to make complex medical and financial decisions since October 23, 2009," based on a letter by her physician, Morgan, dated [22 Neb.App. 389] September 29, 2010. The report also detailed the investigation the Department performed based on three " intakes" it received alleging that Lorenz was financially exploiting Johanna. The report stated that in the month before Wilson's death, Wilson (while in hospice care) signed documents removing himself as the beneficiary of a life insurance policy on Johanna and making Lorenz the new beneficiary. Wilson also made Lorenz the new beneficiary for one of his annuities. The Department's report also notes that in March 2010, about 4 months after Wilson died, a total of $38,000 was taken out of Johanna's bank accounts.

During a Department interview with Lorenz, he stated that Johanna bought him a $41,000 boat in March 2010 in appreciation ...


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