IN RE ESTATE OF JOAN JANE BARGER, DECEASED.
STEVEN BARGER AND SHANE BARGER, APPELLEES AND CROSS-APPELLANTS. ELIZABETH SIEGFRIED AND BRENDON BARGER, APPELLANTS AND CROSS-APPELLEES,
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.
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.
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.
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.
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.
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.
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
Decedents' Estates: Wills: Probable
Cause. A no contest clause in a will is
unenforceable if probable cause exists for instituting
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.
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.
Probable Cause. Probable cause does not
depend upon mere belief, however sincerely entertained, and
must have basis in fact.
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
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.
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.
. 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
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
. 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.
Wills: Death. The provisions of a will take
effect and become operative at the time of the death of the
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.
A will is, according to law, of an ambulatory character, and
no person can have any rights in it until the testator is
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
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.
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.
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.
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.
Wills: Evidence. Extrinsic evidence is
admissible both to disclose and to remove latent ambiguity of
from the County Court for Red Willow County: Anne M. Paine,
E. Siegfried, of Goodwin Siegfried, L.L.P., for appellants.
L. Fugate and Patrick J. Nelson for appellees.
Neb. 820] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, Papik, and Freudenberg, JJ.
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.
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.
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."
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
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
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