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.
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.
Wills: Intent: Words and Phrases. Material
provisions of a will are defined as those provisions which
express donative and testamentary intent.
__:__. Donative intent relates to words reflecting specific
bequests to particular beneficiaries, and testamentary intent
concerns whether the document was intended to be a will.
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.
__ . 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
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.
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.
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.
Wills. Patent ambiguities are resolved from
within the four corners of the will and without consideration
of extrinsic evidence.
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.
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.
. 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.
Wills: Evidence. Extrinsic evidence is
admissible both to disclose and to remove the latent
ambiguity of the will.
__:__. 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
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.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Affirmed.
Neb.App. 724] James L. Haszard, of McHenry, Haszard, Roth,
Hupp. Burkholder & Blomenberg, PC, L.L.O., for appellant.
Spray and Ryan K. Mclntosh, of Mattson Ricketts Law Firm, for
appellee Sue Ann Brethouwer.
D. Dahlin, P.C., L.L.O., for appellees David L. Clark, Jr.,
and Sheila G. Casares.
Chief Judge, and Bishop and Arterburn, Judges.
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