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In re Estate of Tiedeman

Court of Appeals of Nebraska

April 10, 2018

In re Estate of Brian L. Tiedeman, deceased. Dustin Lovorn, Special Administrator of the Estate of Brian L. Tiedeman, deceased, appellant and CROSS-APPELLEE,
SUE ANN BrETHOUWER, APPELLEE AND CROSS-APPELLANT, AND DAVID L. CLARK, Jr., AND Sheila G. Casares, Copersonal Representatives of the Estate of Jody Clark, deceased, appellees and cross-appellants.

          1. Decedents' Estates: Wills: Trusts: Judgments: Appeal and Error. The interpretation of the words in a will or a trust presents a question of law. When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

         2. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing cross-motions for summary judgment, an appellate court acquires jurisdiction over both motions and may determine the controversy that is the subject of those motions; an appellate court may also specify the issues as to which questions of fact remain and direct further proceedings as the court deems necessary.

         3. Wills: Intent: Words and Phrases. Material provisions of a will are defined as those provisions which express donative and testamentary intent.

         4. __: __:__. Donative intent relates to words reflecting specific bequests to particular beneficiaries, and testamentary intent concerns whether the document was intended to be a will.

         5. Wills: Words and Phrases. No particular words or conventional forms of expression are necessary to enable one to make an effective testamentary disposition of his or her property.

         6. __: __ . When construing the meaning of words in a document, the process requires determining the correct sense, real meaning, or [25 Neb.App. 723] proper explanation of an ambiguous term, phrase, or provision in a written instrument. 7. _ .. Ambiguity exists in an instrument, including a will, when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings.

         8. Parol Evidence: Wills: Intent. Parol evidence is inadmissible to determine the intent of a testator as expressed in his or her will, unless there is a latent ambiguity therein which makes his or her intention obscure or uncertain.

         9. Wills: Words and Phrases. A patent ambiguity is an ambiguity appearing on the face of the instrument, whereas a latent ambiguity is one outside the will.

         10. Wills: Intent. A patent ambiguity must be removed by interpretation according to legal principles, and the intention of the testator must be found in the will.

         11. Wills. Patent ambiguities are resolved from within the four corners of the will and without consideration of extrinsic evidence.

         12. Wills: Words and Phrases. Where in a will there is such a patent ambiguity resulting from the use of the words and nothing appears within its four corners to resolve or clarify the ambiguity, the words must be given their generally accepted literal and grammatical meaning.

         13. Wills. A latent ambiguity exists when the testator's words are susceptible of more than one meaning, and the uncertainty arises not upon the words of the will as looked at themselves, but upon those words when applied to the object or subject which they describe.

         14. __ . A latent ambiguity arises when a beneficiary is erroneously described, where no such beneficiary has ever existed as the one so described, or when two or more persons or organizations answer the description imperfectly.

         15. Wills: Evidence. Extrinsic evidence is admissible both to disclose and to remove the latent ambiguity of the will.

         16. __:__. A patent ambiguity is a case where the same word in a will has two meanings discernible from the face of the will itself, whereas a latent ambiguity is a case where the word has two meanings, but only when extrinsic evidence is brought to bear.

         17. Wills. The law will not suffer an heir to be disinherited upon conjecture. 18. Wills: Intent. Although a testator may disinherit an heir, the law will execute that intention only when it is put in a clear and unambiguous shape.

          Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

          [25 Neb.App. 724] James L. Haszard, of McHenry, Haszard, Roth, Hupp. Burkholder & Blomenberg, PC, L.L.O., for appellant.

          J.L. Spray and Ryan K. Mclntosh, of Mattson Ricketts Law Firm, for appellee Sue Ann Brethouwer.

          Dale D. Dahlin, P.C., L.L.O., for appellees David L. Clark, Jr., and Sheila G. Casares.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Bishop, Judge.


         Following Brian L. Tiedeman's death, his nephew Dustin Lovorn filed a petition to have Tiedeman's purported holographic will admitted to probate in the county court for Lancaster County. Sue Ann Brethouwer and Jody Clark, two of Tiedeman's sisters, filed separate objections to Lovorn's petition, and the case was transferred to the district court for Lancaster County. The district court granted partial summary judgment in favor of Lovorn as to the document in question being written by Tiedeman, but granted summary judgment in favor of Brethouwer and Clark as to the document not being made ...

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