L. JOE STEHLIK, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH M. RAKOSNIK, DECEASED, APPELLEE,
MICHAEL C. RAKOSNIK ET AL., APPELLANTS
from the District Court for Pawnee County: DANIEL E. BRYAN,
W. Watermeier and Andrew K. Joyce, of Morrow, Poppe,
Watermeier & Lonowski, P.C., for appellants.
W. Davis and Jeffrey A. Gaertig, of Smith, Schafer, Davis &
Gaertig, L.L.C., for appellee.
Judge. INBODY, PIRTLE, and RIEDMANN, Judges.
Neb.App. 35] Riedmann, Judge.
C. Rakosnik, Linda I. Rakosnik, and Susan M.
Muell (collectively the Rakosniks) appeal from a summary
judgment order of the district court for Pawnee County
concerning transfers of real and personal property made to
them by their brother, Lewis D. Rakosnik, under a power of
attorney he held for their uncle, Joseph M. Rakosnik (Mike).
On appeal, the Rakosniks argue that two of the transfers were
valid gifts in accordance with their uncle's intentions
and the power of attorney he executed. After review of the
record, taking facts in the light most favorable to the
Rakosniks, we disagree and affirm the judgment of the
evidence offered and received at the summary judgment hearing
reveals the following events: Lewis and the Rakosniks were
the only nieces and nephews of Mike. In February 2011, Lewis
moved to Mike's home at the request of Mike's
long-time companion, Evelyn Doeschot (Evelyn), who lived with
Mike but could no longer take care of him alone. When Lewis
moved in with Mike and Evelyn, Mike was undergoing hospice
care and it was uncertain how long he would live.
Neb.App. 36] In March 2011, Lewis obtained a power of
attorney that granted him broad powers over his uncle's
property. Mike's longtime attorney, L.
Joe Stehilk, prepared the power of attorney. The plenary
power clause of the power of attorney document gives Lewis
" all powers over my estate and affairs which I can or
could exercise, including but not limited to the power to
of Mike's Property.
utilized the power of attorney to make transfers of
Mike's money and real property to himself and the
Rakosniks. In June 2011, he cashed his uncle's Edward
Jones account and transferred some of the proceeds to the
Rakosniks and their spouses. In August 2011, Lewis
transferred his uncle's farm property to himself and the
Rakosniks, reserving a life estate for his uncle. During this
time period, Lewis also utilized certain funds from his
uncle's checking account for personal use.
stated that these transfers were a " protective
measure" to prevent Stehlik and Evelyn from obtaining
Mike's property. As the basis for these fears, Lewis
cited a sale of 160 acres of Mike's land to a neighbor in
January 2011. After conversations with his uncle, Lewis
believed that his uncle had not planned to sell the land but
had been influenced by Stehlik. He also found it to be
suspicious that Stehlik charged Mike for preparation
of a new abstract for the sale when Mike's original
abstract was in Mike's safe deposit box. The Rakosniks
also argue that the transfers were made in order to avoid
stated that he learned about an Edward Jones account from a
conversation with Evelyn and then utilized his power of
attorney to request information about that account from
Edward Jones. Lewis discussed the account with Mike and came
to the understanding that the money was " to go to
[Mike's] kin," that is, Lewis and the Rakosniks. In
depositions, the Rakosniks testified that they never
discussed their uncle's finances or estate planning with
Mike before his death. [24 Neb.App. 37] However, Linda later
submitted an affidavit stating that on August 7, 2011, she
sat with Mike at her parents' house and discussed
transferring the farm property to her and her siblings to
consulted an attorney regarding how to avoid probate for his
uncle's estate. The attorney prepared a warranty deed
transferring the farm property to Lewis and the Rakosniks and
reserving a life estate in Mike. Lewis testified in a
deposition that he had conversations with Mike prior to
transferring the farm property and that in particular, he
discussed the deed with Mike to explain it and " make
sure . . . it was okay" the day before Lewis signed it.
August 2011, Evelyn moved out of the farmhouse where Mike
lived and Lewis was staying. On January 31, 2012, Lewis was
arrested. Mike died on April 27. Following a jury trial,
Lewis was convicted of 39 counts of abuse of a vulnerable
adult and theft by deception. The victim was Mike.
in 1988, Mike executed a series of wills leaving the bulk of
his estate to Lewis and the Rakosniks. Mike's 2005 will,
which was in effect at the time of the transfers at issue in
this case, devised Mike's real property to Lewis and the
Rakosniks, subject to a life estate in the farmhouse to
Evelyn, and with the condition that the land must stay in the
family name and not be sold or mortgaged outside the family
during the lifetime of Lewis and his siblings.
testified that he discussed the will with Mike in May 2011
and that Mike told him having the farm stay in the ...