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Estate of Clinger v. Clinger

Court of Appleals of Nebraska

January 27, 2015


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Appeal from the District Court for Custer County: Mark D. Kozisek, Judge.

Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellants.

Steven P. Vinton, of Bacon & Vinton, L.L.C., for appellee Shaun Clinger.

George G. Vinton for appellees Calvin Clinger and Patricia Clinger.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.


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[22 Neb.App. 695] Riedmann, Judge.


Orin M. Clinger, Mary E. Chalupa, Melvina D. Bundy, and Sandra A. Goodwater (collectively the contestants) appeal and Shaun Clinger, Calvin Clinger, and Patricia Clinger (collectively the proponents) attempt to cross-appeal from the order of the district court for Custer County which found that the will of Mary Ann Clinger dated February 18, 2011, was valid. On appeal, the contestants argue that the district

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court erred in directing a verdict on the issue of testamentary capacity, playing a video for the jury and allowing it into the jury room, refusing their proposed jury instructions, and responding to a question from the jury. We conclude that the court did not err in its decisions and therefore affirm.


Mary Ann and her husband, Melvin Clinger, were the parents of six children: Mary Chalupa, Sandra Goodwater, LeRoy Clinger, Orin Clinger, Calvin Clinger, and Melvina Bundy. Mary Ann and Melvin owned a 320-acre farm near Ansley, Nebraska, and all of the children worked on the farm while growing up. In November 1997, Melvin and Mary Ann entered into a written lease agreement to rent the farm to their son Calvin for annual rent of $24,000. At the time, the rent was the farm's only source of income. Melvin died on January 1, 1998, and in February, Mary Ann and Calvin entered into a new lease agreement which decreased the annual rent to $19,580.

In 2000, the contestants became concerned about Mary Ann's financial situation. Mary Ann complained to her doctor that she was under a lot of stress and unable to pay her bills because Calvin was not making his rent payments. She received a foreclosure notice from one of her creditors and feared she would lose the farm. The contestants then initiated a conservatorship action because of their concerns about Mary Ann's ability to control her own finances.

A guardian ad litem was appointed temporarily, and according to him, Mary Ann's finances were " a mess" because Calvin [22 Neb.App. 696] was not paying any farm or machinery rent to her. Not only was there no income coming in, but Mary Ann was also paying all of the farming expenses that should have been paid by Calvin. In addition to the financial concerns, there were concerns raised about Calvin's influence over Mary Ann. The guardian ad litem felt that Calvin was living off of Mary Ann's existence at that time. In January 2001, a permanent conservator was appointed. Mary Ann was very upset with the contestants because she did not think the conservatorship was necessary.

On August 24, 2001, Mary Ann executed a will, in which she left the entire farm to Calvin. The execution of the will was recorded. In the video, the attorney who drafted the 2001 will asked Mary Ann questions about herself, her family, the property she owned, and the will. He specifically asked her whether Calvin or anyone else influenced the making of the will, and she said no.

Over the next 10 years after the will was executed, Mary Ann's physical health deteriorated. In January 2011, she was diagnosed with lung cancer, and the medical plan from that point was to keep her comfortable. She was prescribed numerous medications, including at least five narcotics with possible side effects of sedation, confusion, dizziness, and disorientation. Mary Ann's doctor, however, did not detect in Mary Ann any of the potential side effects of the medications. He observed that Mary Ann was able to communicate and participate in her care at the time and that despite being limited by her body, she was still mentally " sharp." Mary Ann's physician never saw any signs of dementia in her, and she retained the ability to understand what property she owned, who her children were, and what she was doing.

Also in January 2011, Mary Ann asked Calvin to draft a new will for her. She made changes in the percentages each child received, as well as in the disposition of some Bibles and her wedding ring. But

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the disposition of property was similar to that of the August 2001 will in that Mary Ann left the entire farm to Calvin and divided her home and personal property among her other five children. Mary Ann's attorney at the time, Steve Herman, was concerned that [22 Neb.App. 697] the January 2011 will was drafted by a layperson and that he knew nothing about its execution; therefore, he recommended that Mary Ann execute a new will. Because of Mary Ann's failing health, Herman went to Mary Ann's house on February 17, 2011, to discuss the new will he was drafting for her. According to Herman, Mary Ann clearly knew that she wanted to make a will and understood the making of the will. Mary Ann discussed her relationship with her children and assured Herman that the proposed distribution of her assets was what she wanted.

On February 18, 2011, Herman's law partner and two of his staff members went to see Mary Ann to execute the will. When they arrived, Mary Ann recognized them, called them by name, and knew why they were there. According to Herman's law partner, Mary Ann's physical condition was weaker than it had been previously, but she was still thinking clearly and displayed her usual good sense of humor. He asked Mary Ann about every provision in the will, and she provided commentary on why she wanted her assets disposed of the way she did. He said that Mary Ann's medications did not seem to affect her ability to think clearly, and he " absolutely" believed that Mary Ann understood the nature of her acts at the time. Thus, the will was executed that day.

The February 2011 will left the entire 320 acres of farmland to Calvin. The proceeds from the sale of her house and its contents were to be divided among her other five children, and the remainder of the estate was also to go to Calvin. The will specified that Mary Ann was aware the devise to Calvin was substantially more valuable than the devise to the other children, but that she was intentionally making those devises to ...

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