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In re Estate of Barger

Supreme Court of Nebraska

August 2, 2019

IN RE ESTATE OF JOAN JANE BARGER, DECEASED.
v.
STEVEN BARGER AND SHANE BARGER, APPELLEES AND CROSS-APPELLANTS. ELIZABETH SIEGFRIED AND BRENDON BARGER, APPELLANTS AND CROSS-APPELLEES,

         1. Decedents' Estates: Judgments: Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

         2. 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.

         3. Decedents' Estates: Appeal and Error. The probate court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous.

         4. Decedents' Estates: Wills. A proceeding to contest a will under a no contest clause includes actions asserting grounds leading to the invalidity of the will or any of its provisions.

         5.___:___. Generally, courts have held the following types of claims constitute will contests: lack of testamentary capacity, fraud, undue influence, improper execution, forgery, or a subsequent revocation of the will by a later document.

         6.___:.A no contest clause in a will may be violated, not only by a direct contest or challenge instituted by the beneficiary, but also by voluntary conduct of the beneficiary that amounts to an indirect contest or challenge.

         [303 Neb. 818] 7.___:___ .A no contest clause may be violated when the person restrained by the clause voluntarily instigates or aids another person in his or her attempt to contest the will.

         8. Decedents' Estates: Wills: Probable Cause. A no contest clause in a will is unenforceable if probable cause exists for instituting proceedings.

         9. Decedents' Estates: Wills: Probable Cause: Evidence. Probable cause exists if, at the time of instituting the will contest proceeding, there is evidence that would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the challenge would be successful.

         10. Actions: Probable Cause: Words and Phrases. Probable cause in the context of a civil action for malicious prosecution is whether a person in the defendant's position had reasonable grounds to suspect, based on the facts known or reasonably believed by the defendant at the time, that the crime prosecuted had been committed.

         11. Probable Cause. Probable cause does not depend upon mere belief, however sincerely entertained, and must have basis in fact.

         12. Wills: Probable Cause: Attorney and Client. While a petitioner's reliance on the advice of independent legal counsel sought in good faith after a full disclosure of the facts is a factor that bears on the existence of probable cause, the mere fact that a person mounting a challenge to a will was represented by counsel is not controlling.

         13. Wills: Undue Influence: Proof. To show undue influence, a will contestant must prove the following elements by a preponderance of the evidence: (1) The testator was subject to undue influence, (2) there was an opportunity to exercise such influence, (3) there was a disposition to exercise such influence, and (4) the result was clearly the effect of such influence.

         14. Undue Influence: Proof. Because undue influence is often difficult to prove with direct evidence, it may be reasonably inferred from the facts and circumstances surrounding the actor: his or her life, character, and mental condition.

         15.___:___ . Suspicious circumstances, when coupled with proof of a confidential or fiduciary relationship, that have indicated an instance of undue influence include (1) a vigorous campaign by a principal beneficiary's family to maintain intimate relations with the testator, (2) a lack of advice to the testator from an independent attorney, (3) an elderly testator in weakened physical or mental condition, (4) lack of consideration for the bequest, (5) a disposition that is unnatural or unjust, (6) the beneficiary's participation in procuring the will, and (7) domination of the testator by the beneficiary.

         [303 Neb. 819]16. Trusts. A trust terminates at the time at which it becomes the duty of the trustee to wind up administration of the trust, and not at the time when that winding up period is actually accomplished.

         17.___ . After a trust has been terminated, a trustee must expeditiously exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it.

         18. Wills: Death. The provisions of a will take effect and become operative at the time of the death of the testator.

         19.___:___.A will always speaks from the date of the testator's death, because the testator could always modify the distributions prior to his or her death.

         20.___:___. A will is, according to law, of an ambulatory character, and no person can have any rights in it until the testator is dead.

         21. Wills: Intent. The cardinal rule in construing a will is to ascertain and effectuate the testator's intent if such intent is not contrary to the law.

         22.___:___.A court must examine a will in its entirety, consider and liberally interpret every provision in the will, employ the generally accepted literal and grammatical meanings of words used in the will, and assume that the testator understood the words used in the will.

         23. Wills: Words and Phrases. Ambiguity exists in a will when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings.

         24. 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.

         25. Decedents' Estates: 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 in themselves, but upon those words when applied to the object or subject which they describe.

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

          Appeal from the County Court for Red Willow County: Anne M. Paine, Judge.

          Cody E. Siegfried, of Goodwin Siegfried, L.L.P., for appellants.

          Allen L. Fugate and Patrick J. Nelson for appellees.

         [303 Neb. 820] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FUNKE, J.

         Elizabeth Siegfried and Brendon Barger (Appellants) appeal the Red Willow County Court's order on Elizabeth's petition for construction of Joan Jane Barger's will and challenge the court's finding that Joan's intent was to distribute her property designated as property held by a trust even though the trust had been terminated.

         Steven Barger and Shane Barger (Appellees) cross-appeal the court's order on their petitions for a determination that William Barger, Elizabeth, Brendon, and Joseph Barger are not entitled to take under Joan's will due to their violation of a no contest clause contained therein. Appellees also challenge on cross-appeal the court's determination that the trust was terminated prior to Joan's death. For the reasons stated herein, we affirm.

         I. BACKGROUND

         Joan died testate in Red Willow County in January 2012, leaving a "Last Will and Testament" dated March 13, 2006. Her 2006 will set forth Joan's intent "to dispose of all the property which I own or in which I have an interest at the time of my death."

         Related to the distribution of property, article I of the will provided that Joan was a widow with five children including: William, Elizabeth, Joseph, Brendon, and Steven. Under article I, the will described William was not a beneficiary under the will because, in part, "serious unhappy differences" had arisen in recent years between him, Joan, and the rest of the family which "caused a total break in relations" leading to William and his family "no longer recogniz[ing] any family connection" with Joan. Article I also noted Steven was given additional value in the will explaining:

(1) he has been the one working closely with [Joan] for many years now to save the farm from loss to creditors [303 Neb. 821] and taxes, and has contributed a great deal of value in labor, management, equipment, and supplies, for which he has not been compensated; and (2) [Joan] believe[d] he is the only one of [her] children who is likely to expend every effort to keep the farm in [her] family, rather than selling it.
Likewise, article I explained Joan was also giving her grandson, Shane . . ., alone among [her] grandchildren, a tract of ground, also because he has always been so cooperative in doing things [Joan] asked of him, and working hard without pay to save the farm from loss to creditors, and also because [Joan] believe[d] he can be especially trusted to keep the ground in the family, rather than sell it.
Article III was titled "Disposition of Property" and provided specific bequests to specific children. Article III also contained a residual clause which stated:
3.04 I give, devise, and bequeath all my property which I own or in which I have an interest at the time of my death, which is not disposed of in the preceding Paragraphs 3.01 through 3.03, and which is not property of the Barger Family Irrevocable Trust, to four of my five children, as follows, to-wit: Brendon . . ., Jo[seph] . . ., Steve[n] . . ., and [Elizab]eth ..., in shares which are equal in value to each other, considering only the property given under this paragraph 3.04.

         Article IV, titled "Exercise of Power of Appointment," explained the distribution of trust property under the "Trust Agreement of the Barger Family Irrevocable Trust." Specifically, article IV provided:

4.01 I hereby exercise the power of appointment granted to me in section 20.04 of the Trust Agreement of the Barger Family Irrevocable Trust, dated January 10, 1991, by giving the TW35 Ford tractor with duals, four hydraulics, and MFWA and performance monitor, to my son Steve [n] . . ., who originally owned the tractor, and [303 Neb. 822] allowed it to be conveyed to the Barger Family Irrevocable Trust without receipt of consideration to him.
4.02 I hereby exercise the power of appointment granted to me in section 20.04 of the Trust Agreement of the Barger Family Irrevocable Trust, dated January 10, 1991, by directing that all stock owned by the Trust in R & J Barger Farms, Inc., and Five B Farms, Inc., be given to Steve [n] ..., in trust, however, under the following direction and instruction: Steve[n] . . . shall transfer all assets in the corporations, and all other assets in the Trust, as set forth below in the following provisions of this Article IV, and shall then dissolve the said corporations. In the event Steve[n] . . . has predeceased me, or is not able or willing to serve as trustee, I appoint the following successors, in the following order of priority, to receive all said stock, in trust, under the same direction: (1) [Elizab]eth . . ., (2) Jo[seph] . . ., (3) Shane . . ., and (4) Brendon ....
A) All the real estate to the following persons, subject to any encumbrances against such lands:
i) To Steve[n] ..., all of the land owned by Five B Farms, Inc., in the East Half (El/2) of Section Six (6): the El/2 and SW1/4 of Section 7, and the N1/2NE1/4 of Section 18; all in T4N, R30W, Red Willow County, Nebraska;
ii) To Steve[n] ..., the Northeast Quarter (NE1/4) of Section 27, T4N, R31W, in Hitchcock County, Nebraska, owned by R ...

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