Orin M. CLINGER, Mary E. Chalupa, Melvina D. Bundy, 2014 ...

Orin M. CLINGER, Mary E. Chalupa, Melvina D. Bundy..., 2014 WL 1318288...

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2014 WL 1318288 (Neb.App.) (Appellate Brief)Court of Appeals of Nebraska.

Orin M. CLINGER, Mary E. Chalupa, Melvina D. Bundy and Sandra A. Goodwater, Appellants,v.

Shaun CLINGER, Personal Representative, Calvin Clinger and Patricia Clinger, Appellees.

No. A-13-00769.March 14, 2014.

On Appeal from the District Court of Custer County, NebraskaThe Honorable Mark D. Kozisek, District Judge

Brief and Cross Appeal of Appellees

Steven P. Vinton, #17817, Bacon & Vinton, L.L.C., 416 10th St., P.O. Box 208, Gothenburg, NE 69138, (308) 537-7161,[email protected], for appellee, Shaun Clinger, Personal Representative.

George G. Vinton, #17503, 109 East Second St., Suite 8, P.O. Box 1577, North Platte, NE 69103, (308) 532-7822,[email protected], for appellees, Calvin Clinger and Patricia Clinger.

*i TABLE OF CONTENTSTABLE OF AUTHORITIES ................................................................................................................... iiiTABLE OF STATUTES .......................................................................................................................... vJURISDICTIONAL STATEMENT ......................................................................................................... 1STATEMENT OF THE CASE ................................................................................................................ 1ASSIGNMENTS OF ERROR ................................................................................................................. 1PROPOSITIONS OF LAW ..................................................................................................................... 1STATEMENT OF FACTS ...................................................................................................................... 2SUMMARY OF THE ARGUMENT ...................................................................................................... 28ARGUMENT:I. THE EVIDENCE PRESENTED BY APPELLANTS NEVER ESTABLISHED A PRESUMPTIONOF UNDUE INFLUENCE BY CAL AND PAT AND EVEN IF IT DID, THE PRESUMPTION WASREBUTTED AND DISAPPEARED .......................................................................................................

29

II. THE DISTRICT COURT PROPERLY GRANTED APPELLEES' MOTION FOR DIRECTEDVERDICT ON THE ISSUE OF TESTAMENTARY CAPACITY ........................................................

44

III. THE AUDIO/VIDEO OF MARY ANN EXECUTING HER 2001 WILL WAS PROPEREVIDENCE FOR THE JURY TO REVIEW ..........................................................................................

45

IV. THE DISTRICT COURT DID NOT ERR WHEN IT ALLOWED THE 2001 WILL SIGNINGVIDEO TO BE TAKEN INTO DELIBERATIONS ...............................................................................

47

V. THE DISTRICT COURT DID NOT ERR IN ITS FURTHER INSTRUCTION TO THE JURYREGARDING BURDEN OF PROOF .....................................................................................................

48

VI. BRIEF ON CROSS APPEAL ........................................................................................................... 49*ii CONCLUSION ................................................................................................................................. 50

AFFIDAVIT OF SERVICE ..................................................................................................................... 50

*iii TABLE OF AUTHORITIESCASES CITED

In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009) 1, 29, 30 31, 32, 34, 38In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990).................................................................................................

1, 30, 33, 34

Kucaba v. Kucaba, 146 Neb. 116, 18 N.W.2d 645, (1945) .... 1, 30

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Wyman ex rel. Estate of Wyman v. Wyman, 2002 WL171315 (Feb. 5, 2002) ...........................................................

35

Schaneman v. Schaneman, 206 Neb. 113, 291 N.W.2d 412(1980) .....................................................................................

36

In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159(1994) .....................................................................................

36, 37

McDonald v. McDonald, 207 Neb. 217, 289 N.W.2d 136(1980) .....................................................................................

1, 39

In re Estate of Price, 223 Neb. 12, 338 N.W.2d 72 (1986) ... 39In re Estate of Masur, 1992 Neb. App. Lexus 230 (1992) .... 39, 40In re Estate of Kajewski, 134 Neb. 485, 279 N.W.185 (1938).................................................................................................

42

In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).................................................................................................

1, 45

Peterson v. Glinn, 232 Neb. 105, 439 N.W.2d 516 (1989) .... 46*iv In re Estate of Ellis, 9 Neb. App. 598, 616 N.W.2d 59

(2000) .....................................................................................2, 49

In re Estate of Thompson, 153 Neb. 375, 385, 44 N.W.2d814, 821 (1950) .....................................................................

2, 49

*v TABLE OF STATUTESNeb. Rev. Stat. § 27-403 ....................................................... 45Neb. Rev. Stat. § 27-803........................................................ 29, 47

*1 STATEMENTS OF JURISDICTION AND THE CASE

Appellees agree with Appellants' Statement of Jurisdiction and the Case.

ASSIGNMENTS OF ERROR

1. The District Court erred in overruling Appellees' Motion for Directed Verdict on the issue of undue influence.

PROPOSITIONS OF LAW

I. The ultimate burden of persuasion for undue influence remains with the Will Contestants throughout the trial. In re Estate ofNovak, 235 Neb. 939,458 N.W.2d 221 (1990) and In re Estate of Hedke, 278 Neb. 727,775 N.W.2d 13 (2009).

II. A presumption of undue influence can arise in connection with suspicious circumstances and a confidential or fiduciaryrelationship. In re Estate of Hedke, 278 Neb. 727,775 N.W.2d 13 (2009).

III. When a presumption arises it merely shifts the burden of evidence to the party against whom the presumption arises and theburden may shift from side to side during the course of the trial. Kucaba v. Kucaba, 146 Neb. 116, 18 N.W.2d 645, 652 (1945).

IV. The mere fact that a grantee procures an attorney to prepare a deed does not prove that the deed was obtained by impropermeans. McDonald v. McDonald, 207 Neb. 217,289 N.W.2d 136 (1980).

V. A prior will executed when the testator's testamentary or mental capacity was and is unquestioned, and as to which theexistence of undue influence is not charged, and which conforms substantially as to results produced to the instrument contested,may be considered as competent evidence for the purpose of refuting charges of undue influence or want of testamentary ormental capacity by showing that the testator had a constant and abiding scheme for the distribution of her property. In re Estateof Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).

*2 VI. Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence. There must be a solidfoundation of established facts upon which to rest an inference of its existence. This proposition applies with peculiar force














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when the result of drawing such an inference is to destroy the effect of a written instrument prepared with deliberation andsigned and attested with all the formalities required by law for the execution of a will. In re Estate of Thompson, 153 Neb. 375,385,44 N.W.2d 814, 821 (1950) and In re Estate of Ellis, 9 Neb. App. 598,616 N.W.2d 59 (2000).

STATEMENT OF FACTS

Although most of the facts set forth in Appellants' Statement of Facts can be found in the record, the Appellants have omittednearly all the facts that establish Mary Ann Clinger's (“Mary Ann”) testamentary capacityand that no presumption arose that theWill Proponents, Pat Clinger (“Pat”) and Cal Clinger (“Cal”), unduly influenced Mary Ann. Also, Appellants have not set forththe facts that rebut a presumption of undue influence, assuming that such a presumption arose. Thus, because the Appellantshaven't set forth or analyzed these facts in their Brief, the Appellees are required to include an extensive fact section in their Brief.

WILLS

Mary Ann signed three wills. The first was signed on August 24, 2001 (E 42-: 319, 1), the second was signed on January 14,2011 (E 112-:408, 1) and the third was signed on February 18, 2011 (E 26-:48,1). The February 18,2011 Will was the oneoffered for probate and was found by the jury to be the valid Last Will and Testament of Mary Ann. All of the wills devisethe farm to Cal. The farm consists of 320 acres and was the most significant asset in the estate. The record reveals that thewill contest was over who got the farm.

STEVE HERMAN

*3 Steve Herman, an attorney since 1980 whose practice was primarily devoted to estate planning and related types of law(362:11-25), was retained by Mary Ann in December of 2009 (364:16-23) regarding a conservatorship action filed against her inCuster County which she wanted terminated. (366:6-13) Cal was involved in some of the meetings between Mary Ann and Mr.Herman but most of the times he was there a short time and then Mr. Herman would ask him to leave. (370:4-15) The purposeof these meetings was to get the conservatorship terminated. Mary Ann was adamant about terminating the conservatorshipand Cal supported her decision about this. (372:1-16)

Mr. Herman tried to ascertain that Mary Ann's desire to terminate the guardian/conservatorship was her own thought and was notbeing forced or coerced on her. Mr. Herman was confident from talking with her that she herself did not want the conservatorshipand she really wanted to terminate it. (375:19 to 376:9) Mr. Herman referred Mary Ann to Dr. Lisa Jones to help determineMary Ann's mental acuity. Dr. Jones had done mental health evaluations for parties in cases that Mr. Herman was involved inand Mr. Herman trusted her opinion and was very impressed with her abilities (377:1-17). An evaluation of Mary Ann was doneby Dr. Jones and a report was prepared by her. (378: 2-24) Mr. Herman testified that after reviewing the report which showedthat Mary Ann had no signs of dementia, made good decisions for herself, didn't show any signs of Alzheimer's Disease, coulddo whatever she needs to do even though because of her age and her close proximity to Cal she was vulnerable to Cal's influenceand after considering other factors, he decided to pursue getting something done for Mary Ann. (378:16 to 379:22)

February 17, 2011 was the first time Mr. Herman did work for Mary Ann related to her estate plan (374:14 to 375:1).

*4 Mr. Herman drafted the February 18, 2011 Will on February 17, 2011 (402:25 to 403:5). Mr. Herman was aware of the 2001Will and that it was favorable to Cal when he drafted the February 18, 2011 Will (404:6 to 405:2). Mr. Herman went to MaryAnn's house on February 17, 2011. Mary Ann was in bed and she was looking a lot tougher than she had the last time that Mr.Herman had seen her. (405:10 to 406:10) Mary Ann told Mr. Herman she was dying of lung cancer (407:14-21). Mr. Hermanasked Cal to leave during his conference with Mary Ann (410:15-25). Mr. Herman testified to the differences between the willhe drafted that was signed on February 18, 2011 and the other two wills signed by Mary Ann. The primary difference betweenMr. Herman's will and the 2001 will was that in Mr. Herman's will $3,651 was added to Leroy's (a son of Mary Ann) share of theestate and $3,651 was deducted from Orin's (another son) share, plus there were some devises of a Bible and rings. (414:8-20)




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Mr. Herman testified that when he went to see Mary Ann on February 17, 2011 she knew how her property was disposed ofin the 2001 Will, she was pretty sharp, and she remembered historical data (415:13 to 416:1). Mr. Herman again emphasizedthat Mary Ann was thinking clear, she was firm about what she wanted done and that the best way to preserve what she wanteddone was to do a will that was properly executed and properly prepared. (418:6-17) Mary Ann told Mr. Herman during theFebruary 17, 2011 meeting why she wanted to favor Cal over her other children which reasons included she was upset aboutthe conservatorship and she did not feel incompetent; she resented that she had been described that way; Cal had been a personshe relied upon for many years for help both when she was on the farm and also after her health deteriorated; Cal had helpedher by allowing her to stay in his home; she expressed displeasure with her son Orin; Orin had always picked on Cal and alwayswanted to have his way even when they were young boys and that *5 pattern continued after they were grown; she felt Orinhad not been acting in her best interest; and she felt that the conservatorship was something that was in Orin's best interestrather than hers. (464:14 to 465:17)

Mr. Herman testified that he met with Mary Ann on a fairly steady basis from December 15, 2009 until she signed the willon February 18, 2011(432:12-19).

Mr. Herman describes in greater detail on cross examination his meeting on February 17, 2011 with Mary Ann. In summary heexplained to her the ambiguities in the January, 2011 Will and told her that he would feel more comfortable if she had a newwill. After he went through those matters he asked Cal to leave the room and he talked to Mary Ann to be comfortable in hismind that she had testamentary intent, testamentary capacity, that her mind was sufficient to execute a will. He also wanted tomake sure outside of the presence of Cal that the will was what Mary Ann wanted to do and that the provisions of the will wereher own ideas and not the result of Cal saying this was what she needed to do. (439:2 to 440:10) He testified that she was veryclear about what she wanted in her will and she did not waiver or have uncertainty. (441:9-20) Mr. Herman also testified thatshe knew the nature of her acts in signing the will, she understood the effect of making the will and she knew the nature andextent of her property based upon the conversations he had with her when she talked about the farm, her house in Ansley andmiscellaneous personal property (443:2 to 444:10). He testified that Mary Ann knew the proposed disposition of her propertyand knew the natural objects of her bounty (444:11 to 445:7). He testified that the $3,651 deducted from Orin's share in theWill were the attorney fees that Mary Ann had to pay after Orin filed a motion for payment of his attorney fees which upsetand really irritated Mary Ann. She told Mr. Herman she wanted this done not in a vindictive way but just as a matter of factthat since Orin already received it, it needed

*6 to be deducted. (447:2-25) Mr. Herman testified that the Dr. Jones report did state that Mary Ann was vulnerable to Cal'sinfluences so he made an independent investigation on his own regarding this matter (452:15-22). He noted that although thereport said she was vulnerable to influence there wasn't anything in the report stating there were signs of that. He talked withher about her relationship with Cal and whether the things she wanted to do was her ideas or Cal's ideas and she assured Mr.Herman what she wanted to do (452:15 to 453:9). Mr. Herman was aware that Mary Ann was living with Pat and Cal, herhealth was failing, her physical condition was weakening but that these factors did not affect Mr. Herman's opinion becausehe had visited with her personally nine times and he learned that she did not like somebody telling her to do something shedid not want to do which is why she was trying to get rid of the conservatorship. He also testified that if anyone, includingCal, had tried to coerce her into doing something in her will that she didn't want to do, she would have disclosed that to himwhen they met in private (453:10 to 454:7).

ROYCE NORMAN

Royce Norman is an attorney in North Platte, Nebraska who has practiced law since 1979 (19:11-20). Although estate planningwasn't a significant part of his practice he had drafted hundreds of wills over the course of his practice (20:17-24). Mr. Normandid not prepare the will offered for probate, Exhibit 26, but as mentioned above, his partner, Steve Herman did. Mr. Hermancalled Mr. Norman on February 17, 2011 and told Mr. Norman that he had met with Mary Ann that day and he had gottenthe details of what she wanted in her will and told Mr. Norman he would email the will to him. Because Mr. Herman was



unavailable to have her sign on the 18th of February, he wanted Mr.Norman to go to her home and have her sign the will.(31:4-17) Mr. Norman meet with Mary Ann on February 18, 2011 along with two of his staff members. Mr. Norman knewMary Ann since *7 March of 2010 at which time he was introduced to her by Mr. Herman so that he could talk to Mary Annabout terminating the conservatorship. (21:15 to 22:6) Mr. Herman knew there would be litigation and that is why he involvedMr. Norman. Mary Ann told Mr. Norman that she didn't feel she needed the conservatorship, the conservatorship had beengoing on for many years, some of her children had forced it upon her and she felt trapped by it. She told Mr. Norman about afeeling of lack of independence and imprisonment by it. She also told him that it had a potential for leaving a bad legacy forher and that everyone would have the impression that she was not competent for many years which just wasn't true. (22:14 to23:6) Mr. Norman testified she was very sharp of mind, she was articulate, you could tell she read a lot, and she was a verylikable person. (23:13-20) She stayed on task in finding out what she wanted to know from Mr. Norman (23:21 to 24:5). Thefirst time Mary Ann met with Mr. Norman, Cal was there but he was not involved in the conference between Mr. Norman andMary Ann (26:11-16). Mr. Norman had several conferences in 2010 but then she contracted cancer and after that he didn't meetwith her again until the will was signed in February of 2011 (28:3 to 29:1).

When Mr. Norman met with Mary Ann to sign the will she not only recognized Mr. Norman but she was able to tell Mr. Normanwhy she knew him and the events that had led to Mr. Norman being there with her that day (32:15-22). Mr. Norman discussedthe will with Mary Ann. Mary Ann told Royce several times why she wanted to deduct $3,600 from Orin and add that to Leroy.She told him that Orin had sought attorney fees in her conservatorship so a reduction was made to Orin's share (34:18 to 35:8).The will was signed in the presence of Mr. Norman by Mary Ann along with two of Mr. Norman's staff, Jana Krzyzanowski andKrista Uehling (35:17 to 36:6). Cal was not present when the will was signed (36:7-9). She was at peace with the fact she wasgoing to die and *8 that she was headed home (37:4-13). Mr. Norman testified she was weaker than he had seen her previouslybut she was clear of thought, knew what she was about, and even displayed a regular sense of humor which was a good one. Mr.Norman was concerned with her being in her last days of her life with cancer and with the pain and the affect of medication sohe quizzed her about that. None of this seemed to affect her ability to clearly think although she told Royce that she was a littlebit slower in her thinking (37:14 to 38:4). She was able to read (38:14-15). Mr. Norman did not detect any uncertainty in termsof what she wanted in her will (39:5-8). Mr. Norman asked Mary Ann questions to determine if she knew she was engaging inthe act of making a will and knew the nature and extent of her property. She knew who her children were (43:4 to 45:7).

Mr. Norman prepared a memo of the will signing conference and his two office workers, Krista and Jana read it and lookedit over. (52:10 to 53:12) This memo was done immediately after the will signing. This memo was received into evidence (E32,-:55, 1). Exhibit 32 is a three page single spaced very detailed memo with a list of questions attached that were asked ofMary Ann at the time the will was signed with her answers recorded therein. Appellees encourage the Court to read this memobecause it is the best evidence of Mary Ann's testamentary capacity and what influence she may have been subjected to whenshe signed the will. Since testamentary capacity is really not an issue in the case it is useful to set forth information from thememo regarding undue influence. In regard to making sure that Mary Ann, herself, wanted the will to state what it stated thememo provides:

She was very confident that was what she wanted. She said that she had made up her own mind about the disposition and thatwas the way she had wanted it divided for a long time. I asked her whether Cal Clinger, Pat Clinger or anyone else had *9pressured her in any way to dispose of her assets in any particular way and she said that they had not, that she had decided a longtime ago how she wanted the assets to be divided, and that the will was correct and stated how she wanted things divided. Shesaid that she was able to make up her own mind and she had made up her own mind as to the division of the assets. (E 32, 2:55, 1)

A summary of other facts in the memo include: Mary Ann explained why she wanted property to go to certain people includingthat the farm should go to Cal because Cal had helped her so much during her lifetime and her husband's lifetime and that hehad stayed to take care of the farm even after her husband had passed away; she stated that's what she wanted and what herhusband wanted; she also told Royce she was aware that the value of the farm she was giving Cal far exceeded the value ofwhat she was giving to the other children but that's what she wanted because he had looked after her for such a long time bothbefore and after her husband had died and had helped her over her lifetime; she again talked about the conservatorship; she

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acknowledged to Mr. Norman that she was on some medication but that she believed it didn't affect the clarity of her thoughtalthough it made her a little slower in the process of thought; she signed the will in her own hand unassisted; after the will wassigned she asked if her son Cal could read the will to her in Mr. Norman's presence which was done. Mr. Norman also writes inthe memo that based on his general observations, Mary Ann was very clear in thought, knew what she was doing, knew exactlywhat she wanted to do, and why she wanted to do it. She appeared alert, bright eyed, clear voiced and pleasant. She repeatedlystated she was not under anyone's influence and believed that it was her own free will to distribute the assets as the will statedand that she had wanted it that way for a long, long time. She even increased her tone at times to emphasize that the will andthe distributions in the will were *10 clearly her desire and were of her own choosing. She also told Royce a couple of timesto repeat something that she did not hear Royce say.

JANA KRZYZANOWSKI

Jana Krzyzanowski worked for the Norman, Paloucek and Herman Law Offices since they existed in 1995 and prior to thatworked for the same attorneys since 1989 (62:3-8). Her testimony reveals she did a variety of work including real estate, probateand estate planning (62:9-15). She knew Mary Ann from the time Mary Ann first met with Steve Herman. She had given ridesto Mary Ann to the law office probably 10 or 15 times and on one occasion she took Mary Ann to a doctor's appointment(64:2-21). When Jana took Mary Ann to the doctor's appointment the doctor was quite late and so Jana sat with Mary Ann.During this time Mary Ann told her she wanted Cal to get the farm because he had helped her and her husband. Jana testifiedMary Ann seemed to really know that she wanted this to happen. (66:6 to 67:3)

Jana witnessed the execution of the will on February 18, 2011. She testifies in detail including that Mary Ann was bed riddenand she kind of apologized for not being able to come to the office; Mary Ann was weak; she recognized Jana, Royce and theother witness; she appeared alert; Mr. Norman talked to her about the will; she knew the contents of the will, what it containedand what it would do; Mary Ann was very intent on making sure that Jana, Royce and Krista Uehling knew that what was inthe will was what she wanted; and she talked the whole time while they were there. (68:12 to 70:9) Jana notarized the will andMr. Norman and Krista Uehling were the witnesses. (70:16-21) Jana also testified she observed Mary Ann answering questionsposed by Mr. Norman and that Mary Ann knew all the answers and the answers were logical and made sense (72:7-18). MaryAnn needed no help answering the questions (73:7-10). She confirmed that Mr. Norman asked *11 Cal and Pat to leave theroom so that Mr. Norman could talk to Mary Ann by herself and to make sure that nobody was influencing her answers. (73:11to 74:4) Cal then came back and read the will to her out loud as Mary Ann wanted to make sure everybody knew what washappening (74:5-25).

JOHN WOLF

John Wolf was an attorney in Grand Island since 1969 (242:10-13). His practice varied over the years which included doingwills (242:20-24). Mary Ann retained him in the year 2000 because Orin and the three girls [Melvina, Sandra and Mary] weretrying to get her to cancel a lease with Cal and were threatening to file a guardianship/conservatorship proceeding (243:5-13).Mary Ann was most concerned about Orin and the three girls trying to know her finances, know her business, that type of thing.Mr. Wolf testified Mary Ann was concerned they were going to try to put her in a conservatorship or guardianship (246:7-13).Mary Ann told Mr. Wolf she didn't want anybody taking over her finances, it wasn't any of their business and she thought shecould keep her books and records (247:5-22).

Mr. Wolf testified that Mary Ann was a very independent lady and was damn smart, too. She just didn't want anybody handlingher finances. She thought she could keep her books and records (247:12-19). Her finances were not in good order as Cal wasn'tpaying rent like he should have been and she was losing money and she had mortgaged the farm. (248:1-12)

Ultimately Mr. Wolf advised Mary Ann to put a conservatorship in place pursuant to the terms of a stipulated settlementagreement. Under this agreement Orin discontinued being the temporary conservator and Dan Zach, long time CPA for MaryAnn and her husband, was made the conservator (251:5-20). Mr. Wolf thought this was in Mary Ann's best interest due to her



financial situation at the time. Other terms of the stipulated order were that Mary Ann could write checks *12 under $175which was raised to $550 in 2005. (532:1-8) A review of the order reveals quite a few terms and conditions, the significant onesbeing the claim for rent that Mary Ann had against Cal was waived, the claim that Cal had filed against Mary Ann was waived,the land was rented to Gail Reed who Mary Ann knew and was a friend of the family, and Dan Zach, her longtime CPA wasappointed conservator. The stipulated order was approved at a hearing on January 2, 2001. (E117, -:153,2)

Mr. Wolf testified that much of what was in the order was what Mary Ann wanted (315:4 to 316:17).

On June 5,2001 Mr. Wolf met with Mary Ann to do a will after having previously received a call from her. (261:5-13) Mr.Wolf's testimony was Mary Ann first considered giving some land to the other children but ultimately she decided to give thewhole farm to Cal (263 to 269:25). On August 24,2001, Mary Ann did execute the will that Mr. Wolf had prepared for herwhich devised the farm to Cal. (E 42:319) Mr. Wolf testified that she knew she was making and executing a will at that time,she knew the nature and extent of her property, she knew she owned the farm, she knew about her equipment, she was veryaware of everything, she knew that Cal hadn't been paying his rent for the land prior to that time, and she knew there were a lotof questions about the way Cal operated the farm prior to that time. (311:16 to 312:13) She explained to Mr. Wolf who she wasleaving her assets to, she knew the natural objects of her bounty, she was over the age of 18 and based upon his observationsshe didn't appear to be under undue influence (318:9 to 319:6). Mr. Wolf also caused a videotape to be made of the will signingby a certified court reporter (319:15-23). This videotape (E 43,-:321, 1) was received by the Court with a limiting instruction todisregard questions about influence and whether Cal influenced Mary Ann (335:23 to 336:7). Exhibit 43 was played to the jury.A written transcript of this video was offered but not received (E43A,-:392,1). *13 It is believed to be accurate by counsel forAppellees and is helpful in following the conversation on the video.

Mr. Wolf testified he did not have to rehearse the will signing, there was nobody coaching her as to what to say and there wasno one else in the room except the people shown on the video (336:12-23).

Mary Ann had also prepared a written statement dated July 12,2000 that was in Mr. Wolf's file (295:24 to 296:9. The Trial Courtreceived the first page of this letter. (E 138,1:303,2). This document is one of the first indications of Mary Ann's disagreementwith other family members taking control of her financial affairs. The statements in this letter were consistent with what MaryAnn had told Mr. Wolf and she was adamant about them (305:1-10). Mr. Wolf also testified that Mary Ann was a very strongwilled person. Regarding concerns he had that Cal was influencing her and how that meshed with her being strong willed, Mr.Wolf explained that Mary Ann felt sorry for Cal and that he wasn't so much concerned that Cal was influencing her but thatMary Ann favored him (305:8 to 306:4). Mary Ann explained to Mr. Wolf why Cal was getting the lion's share of the estate(306:22 to 307).

The videotape provides the best evidence of Mary Ann's reasoning for leaving the farm to Cal as he helped on the farm morethan the others. Also, the fact that the Will Contestants, Orin, Melvina, Mary Esther and Sandra filed the conservatorship actionalso impacted Mary Ann's decision.

Mr. Wolf testified to other matters that upset Mary Ann regarding the conservatorship including when Orin tried to get Mr.Zach removed as conservator. Mary Ann stated in a letter to Mr. Wolf (E56,1:342,1) even though she wasn't happy with therestrictions placed on her she had been *14 completely satisfied with the decisions that Dan Zach and she had made over thelast year (338:15 to 339:5). In this letter dated April 11,2002, Mary Ann explained to Mr. Wolf her feelings about her childrentrying to remove the conservator, that she wanted all restrictions removed from her without interference from four children,Mary Chalupa, Sandra Goodwater, Orin Clinger and Melvina Bundy. A telling quote in this letter is “it upsets me greatly thatI am accused of not being able to make sound decisions on my own. I feel that you and Dan Zach are totally aware of mycompetency. As a protected person, I feel that my four children should not interfere with my personal affairs just because theyare not in agreement with my decisions”. (E56,:342,1)



In 2005, Mr. Wolf attempted to get the conservatorship terminated. He got an opinion from Dr. Kahnk and based upon Dr.Kahnk's opinion he proceeded to file a motion to terminate the conservatorship. This proceeding was unsuccessful but they didmanage to increase the amount of checks that Mary Ann could write. Orin, however, asked that his attorney fees be paid byMary Ann which the county court denied but which was appealed to district court where they were awarded. (352:9-18)

DANIEL ZACH

Daniel Zach was a CPA since 1980. At the time of his testimony he was a partner with the accounting firm of Dana F. Cole andCompany (469:1-5). The majority of his work was dealing with agriculture. (470:1-4) He prepared year end income tax returnsfor farmers and ranchers, did monthly accounting work from bank statements, prepared financial statements, and payroll returns(470:17 to 471:2). He also helped farmers and ranchers prepare budgets to try to help determine what their profits were and ifthey had losses he would try to help them plan to reduce debt or increase their net worth (471:9-15). Mr. Zach worked for MaryAnn and her husband since about 1986(472:16-20). *15 Mr. Zach met with Mary Ann and Cal before the conservatorshipproceeding regarding an equipment sale. They wanted Mr. Zach to calculate tax liability if they sold the equipment (524:10to 525:14).

Mr. Zach served as conservator for Mary Ann from early 2001 until June of 2008 (527:9-15). In the first year of theconservatorship, 2001, he met with Mary Ann a couple of times a week and then after six months he met with her aboutonce every couple of weeks, so it got less after the first six months. (528:1-7) Typically somebody drove her to his office,usually it was either Sandy or Cal (528:13-16). Normally it was just Mr. Zach and Mary Ann that would meet (528:17-21).Mr. Zach believed she understood her operation well as she would ask questions about the cash rent for irrigated and dryland,she knew when loan payments were due, and she knew when insurance was due, she knew when the cash rent was to be paidetc (529:1-10). Mr. Zach testified that Mary Ann could write checks up to $75 which was raised in 2007 to $550 (howeverthe record shows that actually occurred in 2005). Mary Ann would keep an itemization of the checks she wrote and she wouldkeep a list of the items and she kept invoices (532:1-8). Orin would make requests for more details about what Mr. Zach wasdoing every year. Mr. Zach met with Orin once a month in the earlier years and then two or three times a year later (532:20to 533:12). Orin would want to know about the rent, what money was paid to other family members and what it was for. Hewanted to know about the small amounts including $25, $75, $30 items. There were quite a few small items paid such as that. Ittook Mr. Zach more time to explain to Orin the accountings than it did to do the accounting work. (533:13 to 534:5) Mary Annknew that Orin was making all these requests and it did not make her happy. She told Mr. Zach that a number of times. Orinkept up his requests, even about the smaller expense items, all the way up to the time Mr. Zach gave up being the conservator.Even in his last accounting he had to provide information about a number of items to Orin (534:6- *16 18).

Mr. Zach testified that Mary Ann did not like Orin checking on the finances because she would have preferred to handle iton her own, pay her own bills and not be questioned on so many of the expenses and what she was paying all of her bills for.Mr. Zach relayed that information to Orin but it didn't make him stop (536:2-14). Mary Ann wrote 80% of the checks to paythe expenses. (535:23-25) Mr. Zach also testified that he believed that Mary Ann could have done the work herself that Mr.Zach was doing if she stuck with the same plan he followed (536:1-8). He also testified he would have been available to helpher if she had any questions (536:9-12).

Mr. Zach also testified about an attempt to remove him in 2002. Orin wanted an explanation about different matters. He thoughtthat the rent should be higher and several expenses should not have been paid by Mr. Zach. After Mr. Zach explained it to acourt, Orin's attempt to have him removed as conservator failed (537:2-13).

Mr. Zach wrote a letter to the Custer County Court and all the individuals involved in the conservatorship dated August 13,2008about objections that Orin and the three sisters were raising (E60,-:548,1). He informed them that Mary Ann's net worth wasgetting better and that things were going real well. He also informed them that he thought one of his responsibilities was togive Mary Ann freedom to buy things and do things as she wished because the limit on check writing authority was increased



to $550 (540:2-22). In the letter Mr. Zach told Mary Ann's children that she was very upset by all the requests for informationand that since Mary Ann's finances were in good order they really didn't need to always be hounding him about it. (544:10-20)

Mr. Zach never noticed any issues with Mary Ann's mental acuity from 2001 up until 2007. In 2008,2009 and 2010 he didn'tmeet with her as much but he did communicate with her over the *17 phone and he didn't see any change in her ability tocommunicate over the phone (546:10 to 547:1). Mary Ann would discuss with Mr. Zach every year her desire to have theconservatorship removed. Mr. Zach had no objection to that happening (547:16-24).

Mr. Zach never did observe Cal trying to influence Mary Ann in any way, and he never did see Cal get short or exacerbatedwith her (549:11 to 550:7). He also testified Mary Ann was involved in making decisions about the farm including decisionson irrigation and sprinklers (561:5-7).

DR. MARK NEILSEN

As mentioned is Appellants' Brief, Dr. Mark Nielsen was Mary Ann's doctor from March of 2008 through the time of her death.Appellants, at page 22 of their Brief, set forth the testimony of Dr. Nielsen regarding several medications taken by Mary Annand their side effects. On cross examination, Dr. Nielsen testified that Mary Ann was able to describe if the medications werehaving any of the frequent or more obscure side effects to Dr. Nielsen (731:22 to 732:7). Dr. Nielsen described Mary Ann asvery strong willed, sharp and independent but limited by her body (726:14-24) Dr. Nielsen testified to nearly all the medicationsthat Mary Ann was taking and testified that he did not observe any bad side effects nor did Mary Ann tell him about any bad sideeffects. (732:19 to 733:15). Roxanol which is also morphine wasn't prescribed before March 4,2011(734:4-6). Dr. Nielsen alsotestified that he didn't observe any side effects in Mary Ann for any of the medications that affected her ability to reason, herability to communicate and none of them caused sedation based on Dr. Nielsen's observations (734:25 to 735:21). Dr. Nielsendid testify that morphine was intended to cause sedation but that wasn't prescribed until the last day of her life (736:2-13).

Dr. Nielsen also testified that he noted in his file that Mary Ann was concerned about the son who was trying to take awaycontrol of her finances because it was an important part of her social *18 history and was stressing her out (738:15-25). Dr.Nielsen testified that Mary Ann was still able to communicate the last time he saw her on January 24, 2011, she was still ableto participate in her medical care, she was still sharp and strong willed but was limited by her body, she was still wordy, shestill had her personality, he never saw any signs of dementia, she still had the mental ability to understand what she owned,who her children were and what she was doing. Furthermore, based on his observations, it did not appear that anybody else wascontrolling her as far as what she said and how she communicated with Dr. Nielsen (740:3 to 741:23). It also appeared she wasgetting good care from her family (741:24 to 742:13). He also testified that he didn't know of any better options for her care atthe end, she didn't want any other options and she seemed to be happy staying with Pat and Cal. (743:11-22)

DR. KAHNK

Dr. Kahnk was Mary Ann's doctor from 2006 through 2008 (752:1-5). Dr. Kahnk wrote a letter on December 6, 2006 that MaryAnn was capable of handling her own financial decisions (764:2-10). He gave that opinion because the daily appointments hehad with her indicated she was able to monitor and keep track of medications with some assistance which most people wouldneed, she was able to bring in very detailed information on different things she was doing throughout the day such as what herblood pressure was, she was very detailed, she was able to hold a conversation knowing the day, date, person which are minimental status kind of questions that are asked of people (764:17 to 765:15). Dr. Kahnk also testified that many times Sandywould bring her to appointments and she would ask Sandy to leave because she didn't want to have anybody else there whenshe was telling Dr. Kahnk about what was going on in the family. Dr. Kahnk testified that his interpretation was Mary Ann wasstressed by kids who were concerned she was going to spend their *19 inheritance and that she was having to go to court toprove that she was able to take care of her own stuff (763:1-15).

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DR. LAWRENCE

Mary Ann was a patient of Dr. Lawrence in 2000 at the time the conservatorship action started and also was still seeing MaryAnn in August of 2001 when Mary Ann's first will was signed. At page 15 of their Brief, Appellants set forth Dr. Lawrence'stestimony regarding Mary Ann's stress and anxiety, Cal was running the farm and was responsible for the expenses but he didn'tpay the bills etc. Dr. Lawrence testified that she made a note on September 1, 2000 that Mary Ann and Cal had made someplans to pay off some bills and they think they can get it taken care of (818:2-6). She specifically stated she didn't ask what theplan was. Even though Dr. Lawrence was concerned about the stress Mary Ann was under because of her financial problems,Dr. Lawrence thought they wouldn't accomplish the plan even though they had never told her about a plan before (818:2 to819:1). Dr. Lawrence wasn't aware that there was a plan that was eventually used to take care of Mary Ann's financial trouble(819:20-25). Dr. Lawrence did know that if she wrote the letter in September of 2000 and that if a conservator was appointedfor her then Mary Ann would not be able to carry out the plan that she and Cal had to pay off the debts (822:19-25).

CAL

Cal testified about some of his financial difficulties, including his inability to pay rent to his mother including in the year 2000when Farm Credit Bank started demanding money from his mother to pay the mortgage (1072:20 to 1073:5). He testified abouta plan that his mother and he came up with after Cal told her he wasn't able to fulfill his obligations to her. The plan was to rentthe ground and sell the machinery (1073:6-22). In mid summer of 2000 Cal talked to Gail Reed *20 about renting the farm andhe talked to an auctioneer named Davy Davis about selling the equipment (1074:2-24). Mary Ann had asked Davy Davis to doan appraisal of her machinery which was done on August 16, 2000. A sale date was set for December with an alternate date incase of a storm (1075:1-21). This plan was never carried out because of the conservatorship action that was filed (1075:21-25),at which time Cal's brother and sister took over as temporary co-conservators in September of 2000 (1075:21 to 1076:9). A saleoccurred in November of 2000 anyway at which time the same equipment sold as what Cal and his mother had planned to sellwhen they met with Davy Davis in August of 2000 (1076:13-17).

GAIL REED

Gail Reed knew Mary Ann all of her life. He became the tenant of Mary Ann's land in 2001 (1612:14-24). He talked to herfairly regularly in 2001(1613:1-10). She told Gail that she was upset with the conservatorship, didn't like having the conservatorbecause she felt like she could do her own things. She felt this way throughout the time Gail was the tenant. Gail was the tenantcontinuously through 2001 until the time of the trial (1613:8 to 1614:7).

Mary Ann told Gail that Orin and the girls wouldn't be very happy with what her Will said (1614:8-17). She told Gail she lovedall of her kids including Orin but she was upset with the way things were progressing as far as court and hearings over thecourse of time. She felt that Orin was watching her constantly and that bothered her (1615:3-17).

Mary Ann was very active regarding things that had to be done on the farm. Gail would talk to both Mary Ann and the conservatorwhen there was a repair needed. He would let Mary Ann know first and then he would tell the conservator (1616:11 to 1617:3).The process of letting Mary Ann know about matters on the farm never did change during the time that Gail was a tenant.(1617:14- *21 17) Gail never did take care of business stuff with Cal. He never did see Cal trying to conduct Mary Ann'sbusiness except for some very minor items. Gail never did feel he had to report to Cal about the farm operation, and Cal neverdid tell him he had any authority regarding the farm. (1621:4-20) Mary Ann told Gail that she didn't like to have to showeverybody what she spent on groceries and on presents and what she spent on this and that. (1621:21 to 1623:3)

Gail testified that in the summer of 2000, either in June or July, Cal had stopped and mentioned something about renting thefarm to Gail on shares or on a cash rent and that they were looking to do something different on the farm and Cal wanted toknow if Gail was interested in participating. (1624:9 to 1625:14)



Gail also testified that he talked to Mary Ann three days after he wrote some checks to Mary Ann on February 25, 2011. Hehad his phone bill which showed he talked to Mary Ann 19 minutes. Part of this conversation was with Cal but he talked toMary Ann at least 5 minutes. Mary Ann was able to carry on a conversation with him at that time, she called him by name, sheknew who he was, he didn't have trouble getting her to understand what he was saying, and he had no trouble understandingher. (1628:7 to 1629:20)

CINDY COOPER

Cindy Cooper was a home health aide for Hospice. She had done this for 14 years. She obtained a certified nursing assistantlicense in 1980 (1397:13 to 1398:17). She started caring for Mary Ann in January of 2011 (1399:2-16). Beginning in Januaryof 2011 she went to Cal and Pat's house where Mary Ann was staying three times a week and then it eventually transitionedinto everyday (1399:20 to 1400:1). She got to know Mary Ann very well (1400:2-4). She observed the interactions betweenCal and Mary Ann and described them as very loving and kind, never did see *22 Cal get impatient with her, never did seeCal try and control her and saw Cal providing good care (1401:19 to 1402:16). She also observed interactions between Pat andMary Ann and also described those as loving and kind. Pat always had clean clothes laid out everyday for Mary Ann (1402:22to 1403:9). Cindy Cooper observed Mary Ann to be very sharp as she always answered questions correctly (1403:7-16). Shenever observed any lack of orientation, never did give wrong answers to questions, never showed any signs of hallucinating,and never showed any signs of sedation, (1405:19 to 1406:9).

ORIN

Orin Clinger is one of the Will Contestants and a son of Mary Ann. Orin's history with his parents was problematic. He hadaltercations with his father which included an incident when he was working with his father and a disagreement arose overwhether or not he should help finish the milking. Orin wanted to eat dinner since his wife had it fixed. During this incident heturned around and his dad had a fence post in his hand. After this incident he left the farm. (1239:3 to 1241:5). Orin testifiedthat there was a possibility that his dad was going to hit him with the post if his mother hadn't warned him (1410:15-21). Healso had a “wrestling match” which Orin really can't remember but his wife told him that it happened so he is quite sure itdid happen (1411:2 to 1413:19).

Orin had also loaned money to his parents. Orin was very evasive during his testimony about these transactions but it appears heloaned them money so that they could pay rent to him for land that he owned. He also loaned them money so that they could payhim interest that had accrued on delinquent rent that the parents owed him. He charged them 10.5% interest on the delinquentrent (1421:13 to 1429:7). His father died on January 1, 1998 and he had loaned money to his mother on December 30, 1997,the purposes for which were listed by Orin in Exhibit 211. This loan was for *23 $65,141 and included $2,036 interest thathad accrued on rent that was owed to Orin. He then charged 10.5% interest on the total amount which resulted in Orin charginginterest on interest. (1438:18 to 1439:3) Orin never forgave any rent that was owed prior to his father's death nor did he forgiveany other debt or any interest that his parent's owed him (1440:3-18). When the $65,000 loan was paid back Orin informed hismother and Cal that he wouldn't be able to make his payment to the bank to pay off the loan that day so he had to have another dayof interest (1442:6-16). Orin testified he was being just like a banker with his mother (1442:17-19). He never forgave any partof the loan (1444:18-19). The note that he had his mother sign was received into evidence as Exhibit 173. To fund the $65,000loan he made to his mother he borrowed some of the money from a bank that charged him 10% interest (1446:18 to 1447:6).

When his mother began having financial troubles and there were family meetings in the summer of 2000 Orin had manyconversations with his mother; his mother understood what was going on, she understood that she had problems because Calwasn't paying the rent; Cal wasn't paying rent because he wasn't getting the farming work done properly which Orin could telljust by looking at the farm; Mary Ann knew what the farm looked like; Orin had discussions with his mother about what thefarm looked like; and Mary Ann told Orin that Cal wasn't getting the farm work done because he was in North Platte and didn't



have time to be at home and take care of the farm (1448:4 to 1450:23). Orin never asked his mother if she was planning a salein August of 2000 (1453:17-23).

Orin was evasive about whether or not he had knowledge his mother was upset with him in August of 2000 (1457:13 to 1458:3).However, Orin admitted that he made a note on a calendar, (E 110,1:1462, 1) in which he wrote that his mom didn't like Sandyand him going through records *24 (1458:13-15). He tried to blame his mother's feeling on this on Cal but he admitted that washis own feeling (1460:7-12). Orin admitted at this time his mother was very sharp minded, very independent, and very strongwilled (1460:16-24). Orin admits that his mother did not want a conservator appointed for her because it made her feel restricted(1462:11-18). Orin, himself, knew that his rigorous monitoring of the conservatorship and conservator upset his mother. Heknew that Dan Zach was somebody that Mary Ann wanted as conservator and that she liked Dan Zach (1487:16-24). He knewthat his mother was upset when he tried to have Dan Zach removed as conservator (1488:19-25). He knew that it upset hismother that she had to keep track of the $175 a month allowance she was given as part of the conservatorship (1490:12-18).He knew that anybody who was restricted with their finances because of a court order could very easily be unhappy and upset(1490:19 to 1491:1). He knew that when his counsel wrote a letter to get the social security check to the conservator that upsethis mother (1493:5-16). Orin disagreed with Dan Zach, the CPA and Dr. Kahnk both who testified that Mary Ann could handleher own financial affairs (1497:8-22). He prevailed on the motion his mother filed to terminate the guardianship (1501:12-22)but she did get an increase on the check limit to $550 (1502:5-8). Orin was not in favor of her getting an increase to $550(1502:15 to 1503:6).

Orin appealed the County Court Order charging him attorney fees to the District Court of Custer County which reversed theCounty Court (1507:14-20). Orin never did pay for his mother's attorney fees even when he unsuccessfully attempted to haveDan Zach removed as conservator (1504:23 to 1505:24).

Orin also admitted that during 2001 his mother was sharp, alert, and strong willed, (1511:4-11)

*25 Orin admitted that neither Cal nor Pat ever told him that he couldn't visit Mary Ann at Cal's home in North Platte. (1517:20to 1518:1) He visited his mother at Cal's house on February 7th or 9th and he also visited her at other times. (1518:2-19) OnFebruary 9,2011 she was still able to carry on a conversation, her sharpness was not as much perhaps as before. He saw herconversing with other people, and she talked about other family members (1518:20 to 1520:4). Orin testified he thought Calshould have invited him to see his mother while she was staying at Cal‘s, however, he knew he could have stopped and seen hismother any time he wanted. (1520:5 to 1521:6) He testified he knew that Mary Ann did not like the term incapacitated, he knewthat it shamed and embarrassed her, and he had no reason to disagree with Bill Watson's testimony that it shamed her. He knewthat his mother loved him and he knew that made it especially stressful when she had to fight the conservatorship (1524:16-25).

SANDY

Sandy Goodwater, one of the Will Contestants and daughter of Mary Ann, knew her mother was upset with her when they hadthe family meeting in August of 2000 as she took a key to her house away from Sandy because Sandy was siding with Melvinaand Orin (1141:11-19). Sandy also knew that Mary Ann was upset when Sandy told her that she needed to make sure that MaryAnn's money went to the conservator (1145:14-17). She also knew that Mary Ann's finances were pretty much straightened upin January of 2001 (1145:19 to 1147:8). Sandy knew that, until her death, Mary Ann wanted out from under the conservatorship(1147:9-14). Sandy knew that her mother thought she could handle her own finances (1148:1-4) and that she was stressed outabout the conservatorship and really despised it but Sandy really didn't look into changing anything (1151:2-25).

*26 Sandy helped Mary Ann do her Christmas cards for Christmas of 2010 (1153:3-17). Mary Ann had already done most ofthe cards herself. Mary Ann made the decision who to send the cards to and how much money to send each one. Although Sandywas helping her, Mary Ann knew who she wanted to send them to and she didn't have to be reminded about that. There wereabout 45 to 55 cards sent, and Mary Ann had a grid set up as to how much money she would send to each relative depending



on how closely they were related. She stayed on task until she had the job done. Mary Ann died 2 1/2 months later (1154:1to 1155:22).

Sandy was unclear about whether or not she could visit her mother after Mary Ann moved to North Platte. She testified shebelieves she was told that she couldn't come to Cal's house to visit her mother but she couldn't remember who told her thatalthough she thinks Cal did. However, she thinks that she was told she couldn't come to the house until the last two months(1152:1-21) but she back pedaled on that after having to admit she was in Cal' s house in December of 2010 to help Mary Annwith Christmas cards when Pat and Cal were out. (1153:3-11) She did load up her car with friends and took Mary Ann andher friends to an eating place (1152:22-1153:2). She didn't think that Pat Clinger ever told her that she couldn't come into thehouse (1159:25 to 1160:5). After the Christmas card project Sandy saw her mother once a week for a while and then twice aweek towards the end (1160:22 to 1161:14). During this time she was never excluded by Pat or Cal from coming into the house(1161:15-17). Sandy testified that Mary Ann got good care while she was staying with Pat and Cal. (1164:1-3). Sandy agreedto Mary Ann going to North Platte (1165:5-7). Sandy was for Mary Ann staying at her own home and letting Sandy take careof her but that it was best for her to go to North Platte if Mary Ann insisted that she didn't want to pay somebody. (1165:9-15) Itis obvious from this that Sandy wanted to be paid. Sandy testified that Mary, who was the other Will *27 Contestant, couldn'ttake care of her mother because it wasn't practical. (1165:16-18) She also testified that Melvina had family and was workingfull time and it was not possible for her to take care of Mary Ann (1165:19-23).

Sandy testified that the last week or two of Mary Ann's life she was still able to talk but her voice was softer than it had been;she could still carry on a limited conversation that did make sense, and she recognized visitors that saw her then (1159:1-24).Sandra testified about a time that Cal scolded his mother in 2000 but she never recalled seeing Cal raise his voice again withhis mother nor did she ever see Pat raise her voice (1161:21 to 1162:3).

Sandy was able to talk to her mother by herself the last two months (1162:13-16) and in December 2010 when the cards weredone. She never saw Pat or Cal making any effort to make sure they were present when Sandy was with her mother (1163:9-15).Sandy could talk about any subject with her mother that she wanted and there was nobody telling her mother what to say toSandra (1163:16-25).

MELVINA

Melvina Bundy, one of the Will Contestants and a daughter of the decedent, testified that Sandy had told her that she and Orinweren't welcome in Cal's home; however, she never heard that directly from Cal or Pat, Cal actually called her and encouragedher to come over and see her mother although Melvina thought that was relayed through her sister Sandy. Melvina did see hermother in late February of 2011. (1222:1-18) Cal called Melvina three months before her mother's death and told her MaryAnn's health was failing and come over and see her if she wanted to (1221:20-25). She also testified she saw her mother withina week of her death and her mother recognized her and could carry on a conversation using short sentences. (1223:2-12) Shetestified she wasn't in favor of Mary *28 Ann moving to North Platte to live with Cal and Pat but she did not offer for hermother to live with her (1224:13-15). She testified she couldn't answer as to whether or not her mother received good care atCal and Pat's (1225:2-6). She admitted that her mother was upset when she filed the conservatorship action (1227:16-18). Shealso admitted that it upset her mother that she took over her mother's finances through the conservatorship (1230:24 to 1231:4).

SUMMARY OF THE ARGUMENT

The evidence of Appellees reveal that when Mary Ann executed the February 18,2011 Will, she was represented by independent,competent counsel who took many protective measures to make sure that Mary Ann possessed testamentary capacity and wasnot being unduly influenced. The testimony of the independent, competent attorney, Royce Norman and his legal assistantwho notarized the Will, Jana Krzyzanowski, along with a memo of the events surrounding the will execution prepared byRoyce Norman establishes that the Will was Mary Ann's voluntary act. Appellants never did present any evidence after the



testimony of Mr. Norman and Ms. Krzyzanowski that would have caused the burden of evidence to shift to Appellees. Evenif a presumption of undue influence arose causing the burden of evidence to shift to Appellees, this presumption was rebuttedby the evidence which showed Mary Ann was represented by independent, competent counsel, there was no undue influenceand the execution of the will was her own voluntary act, and there were no suspicious circumstances surrounding the executionof the will by Mary Ann.

The directed verdict on the issue of testamentary capacity was proper because the evidence relied upon by Appellants, includingthe effects of medications on Mary Ann, being easily tired, and slower in her thought process, taken as true, do not show shelacked testamentary capacity.

The video of Mary Ann executing her 2000 will was proper evidence as it showed the *29 circumstances surrounding theexecution of the August 2000 will done by Mary Ann which also provided that the farm was to go to Cal. This video wasnot testimony of Mary Ann because it contains many nontestimony facts including Mary Ann's appearance, her ability tocommunicate, her body language, and generally shows what she is doing which all supports Appellees' position that she hadtestamentary capacity and was not unduly influenced. Furthermore, even if Mary Ann's statements were testimony and if theywere hearsay, they were excepted under Neb. Rev. Stat. § 27-803 .

Allowing the jury to take the video into deliberations was proper exercise of the Trial Court's discretion as the video was nodifferent than an admissible document. Furthermore, it corroborated the statements and letters that Mary Ann wrote stating thatCal was to get the farm and that she was upset with the four Appellants for having filed the conservatorship action against her.

Finally, Appellees' Motion for Directed Verdict on the issue of undue influence should have been granted because Appellants'evidence regarding this issue was mere suspicion, surmise or conjecture.

I. THE EVIDENCE PRESENTED BY APPELLANTS NEVER ESTABLISHED A PRESUMPTION OF UNDUEINFLUENCE BY CAL AND PAT AND EVEN IF IT DID, THE PRESUMPTION WAS REBUTTED ANDDISAPPEARED.

Appellants rely upon In re Estate of Hedke, 278 Neb. 727,775 N.W.2d 13 (2009) in support of their argument that a presumptionof undue influence instruction should have been given to the jury and they were prejudiced by the court's refusal to do so. Inre Estate of Hedke was a bench trial. The will at issue disinherited a daughter. The daughter claimed the will was a result ofundue influence by the son. The trial court gave no reason for not finding there was undue influence. The *30 court in Hedkerelies on In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990) for the principle that the ultimate burden of persuasionfor undue influence remains with the contestant throughout the trial. In re Estate of Hedke at p.29. The court in Hedke statesthat a presumption of undue influence can arise in connection with suspicious circumstances and a confidential or fiduciaryrelationship. Suspicious circumstances include (1) a vigorous campaign by a principal beneficiary's family to maintain intimaterelations with a testator, (2) a lack of advice to the testator from an independent attorney, (3) an elderly testator in weakenedphysical or mental condition, (4) lack of consideration for the bequest, (5) a disposition that is unnatural or unjust, (6) thebeneficiary's participation in procuring the will, and (7) domination of the testator by the beneficiary. The court in Hedke statesthat it has not yet determined what quantity of proof will rebut a presumption of undue influence. The court states that it has madecontradictory statements regarding the quantity of proof that would satisfy the proponent's burden to rebut the presumption, onebeing that if the proponent's “evidence establishes there was no undue influence, the presumption disappears”, and the otherbeing “proof that the testator had competent independent advice and that the will was his or her own voluntary act, or by otherevidence of the circumstances surrounding the execution of the will”.

As was recognized in Kucaba v. Kucaba, 146 Neb. 116, 128, 18 N.W.2d 645, 652 (1945) when a presumption arises it merelyshifts the burden of evidence to the party against whom the presumption arises and the burden may shift from side to sideduring the course of the trial.







Appellees contend that the burden of evidence never shifted to Appellees because the witnesses called by Appellees during theircase in chief at the beginning of the trial, Royce Norman and Jana Krzyzanowski (see pages 6-11 of the Facts) and the memoof Mr. Norman received into *31 evidence (E 32, -: 54,1) established that Mary Ann did have competent independent counseladvising her about her will and the will was her own voluntary act. This evidence also establishes there was no undue influencewhen the will was signed. Norman was a competent independent attorney who had never worked for Appellees. (106:15 to107:16) There are no allegations by Appellants that would draw into question his competence or independence. The detailedand precautionary measures Norman took when Mary Ann signed the will were also testified to at length. Mr. Norman wasvery sensitive to the fact that there had been a lot of family disharmony and that there could be allegations of undue influence.Mary Ann and he had specific conversations regarding whether or not Cal was leading her around which she adamantly denied,she repeatedly and adamantly stated what she wanted; Cal willingly separated himself from her and she would never say thatshe had to check with Cal on anything. She repeated many many times that the farm was going to go to Cal because he wasthere (128:1 to 131:12).

This evidence, under Hedke, negates any problems arising from a confidential relationship that Cal and Pat had with Mary Ann,assuming there was one. The Hedke court states that once this presumption is rebutted it disappears. The evidence of advicefrom competent independent counsel that the will was Mary Ann's own voluntary act and the evidence of no undue influencewas offered and received by the jury before the evidence offered by Appellants which they claim supports the existence of aconfidential relationship and suspicious circumstances. The testimony of Mr. Norman and Ms. Krzyzanowski along with Mr.Norman's memo establishes facts that were never rebutted or drawn into question in a manner that would have ever shifted theburden of evidence to Appellees. Therefore, a presumption of undue influence never did arise.

A review of the record after Norman and Krzyzanowski's testimony only establishes that *32 Appellees' case got stronger. Thetestimony of Steve Herman, another independent attorney advising Mary Ann, John Wolf, still another independent attorneyadvising Mary Ann, Dr. Nielsen, Dr. Kahnk, Mr. Zach, Orin and other witnesses establishes an uncontroverted picture of a ladywho was strong willed, knew who she wanted to leave her property to for a long time, was upset with the Will Contestantsbecause they had taken control away from her through the conservatorship and was very fond of Cal who provided her helpand care when she was on the farm through the last stages of her life. There is really nothing in the record that would overcomeany of this evidence sufficient to create a presumption.

An analysis of the facts in the two lead Nebraska Supreme Court cases in which the Court holds that a presumption of undueinfluence arose compared to an analysis of the facts in the case at hand also demonstrates that no presumption arose in favor ofAppellants. The facts in In re Estate of Hedke, supra, reveal a wide array of actions and behavior by a son to steer his motheragainst the daughter and into making a will leaving her estate to the son. The son held a power-of-attorney and engaged in selfdealing breaching his fiduciary duties; he insisted on removing his mother from a nursing home to his home and after she movedto his home he immediately began efforts to postpone a conservatorship action so that he could get her will changed; peopleat the nursing home believed she should remain there; there was no evidence the decedent told anyone she wanted to changeher will; the son admitting telling his mother that the daughter was trying to steal the farm and the son tried to get his motherto believe the daughter had filed a guardian/conservator proceeding solely for her personal gain; neighbors testified the motherwas never upset with the daughter until the son convinced her that the daughter was attempting to steal the farm; neighbors andrelatives also testified the decedent was close to the daughter until the decedent entered the nursing home; the *33 motherhad made statements, even after entering the nursing home, that she intended to divide her assets equally between her children;no one explained to her that the new will would effectively disinherit the daughter; the son did not take his mother to her formerattorney to redraft the will but rather took her to Terry Rogers, his own attorney; Rogers did not inform the mother the sonmay be misappropriating her assets; the son admitted that he had used his mother's funds for his benefit without authorization;and Rogers failed to verify the mother's competency by asking questions about her assets or speaking to her physicians; thedecedent told Rogers she wanted to divide her property as her father had but Rogers did not verify that the differences in thewill represented her wishes.



In re Estate of Novak, supra, Youngs, an attorney, was the sole beneficiary named in a will and nominated as PR. She filedan application for informal probate. Rose Hitz, a friend of the decedent, filed an application for formal probate. Hitz sought toprevent informal probate of the will alleging that Youngs had been directed by the decedent to draft a will naming Hitz and herchildren as beneficiaries but instead Youngs substituted herself as beneficiary. At the time the will was executed the decedentwas seriously ill in a hospital. The will was received into probate because it was “self proving”. At the close of Hitz's evidence,Young moved that the application be dismissed. The County Court found that the evidence of Hitz was insufficient to establishundue influence or lack of testamentary capacity and dismissed the application. An appeal was taken to the District Court. TheDistrict Court found that the will was the result of undue influence, reversed the County Court, and struck the will from probate.

The Supreme Court reversed the district court and held that a presumption of undue influence had arisen, therefore, Youngs thenhad the burden to go forward with evidence to rebut the *34 presumption. Since the County Court dismissed Hitz's petition,Youngs never had an opportunity to present evidence to rebut the presumption, therefore, the case was remanded to the DistrictCourt with directions to remand to the County Court for further proceedings.

The will in Novak was automatically received into probate because it was self proved and it appears there wasn't any otherevidence offered by Young. Hitz's evidence, in summary, included Hitz's testimony that on July 29, 1983, the decedent signeda statement written by Hitz which provided, in summary, that the decedent wanted Hitz to handle her business and to inherit allof her money and everything she owned which Hitz was to share with her children. Hitz then called Youngs who the decedentknew because Youngs had done her brother's probate. The evidence revealed that Youngs met with the decedent and was toldby the decedent that she wanted to remember Youngs. Youngs then referred her to a different attorney. The new attorney thendrafted a will that left the bulk of the estate to Youngs.

The Court notes that the testimony of Hitz was to the effect that the will in question was contrary to the expressed intention ofthe decedent and that by virtue of the County Court granting Young's motion to withdraw the issue of undue influence fromconsideration by the jury, the proponent admitted the truth of Hitz's evidence, therefore, the motion should have been overruled.

In the case at hand, there are no facts remotely similar to the facts of Hedke and Novak. What really distinguishes the caseat hand from those two cases is that Mary Ann had a long long history dating back to 2001 of telling people that she wantedCal to get the farm and providing the reasons for that. In 2001 she told this to John Wolf (p. 12 of Facts). In the will videoshe explains this herself (E 43,-321, 1). In 2001 she told this to a niece Sherrylynn Hughbanks (E105, 17-18:1635, 1) and shealso told Sherrylyn's husband Robert Hughbanks(E104,11-14:1693,1). In 2011 she told Mr. *35 Norman, Mr. Herman, andMs. Krzyzanowski this as described in the fact section. She also put it in her own handwriting (E 54,1:293,1). The record isgenerously littered with Mary Ann explaining why she was upset with the Appellants which includes the testimony the samepersons mentioned in the previous sentence, along with Dan Zach (p. 15 & 16 of Facts), Dr. Nielsen, Dr. Kahnk, Cheryl Byam(1588:15 to 1590:15), Beverly Sherbeck (1564, 3 to 1565:19) and the three of Will Contestants themselves, Orin, Melvina andSandy. The fourth Will Contestant, Mary Chalupa, did not testify. Again, whether or not any presumption arose or whether itwas rebutted would depend upon the order of the evidence. As mentioned previously, the testimony of Mr. Norman and Ms.Krzyzanowski during Appellees case in chief was never drawn into question to an extent that would have shifted the burdenof evidence to Appellees.

Appellants rely upon an unpublished Nebraska Court of Appeals decision, Estate of Wyman to support their argument that aconfidential relationship existed between Mary Ann and Cal. In Wyman v Wyman a sister alleged that a brother and sister-in-law took care of the mother and therefore, had a confidential relationship with her. The sister also alleged the brother undulyinfluenced the mother to make gifts of money to the brother and sister-in-law. The Wyman v. Wyman case is gift case, not awill contest case. It appears that the standard for raising the presumption is different than will contest cases as it therein doesnot appear proof of suspicious circumstances is required in connection with a confidential relationship to raise a presumptionof undue influence. It took only the testimony of the persons benefitting from the gift to rebut the presumption in Wyman whichthey did, in summary, by testifying that the checks were compensation and gifts they got for caring for the decedent and that the



decedent was upset with the daughter for not taking the responsibility to care for her. There was also evidence she was alwaysgenerous with *36 people who assisted her.

Appellants also rely upon Schaneman v. Schaneman,206 Neb. 113,291 N.W.2d 412 (1980). Appellants state that in this casea confidential relationship was found to exist between the defendant and his father because the defendant was a favorite andmost trusted child in the family, the defendant helped his father in his business, and his father relied on his advice in thebusiness. Appellants fail to point out that the court states the father was, “for all intents and purposes, an invalid at the timeof the conveyance”, his mental acuity was impaired, and he suffered from disorientation and lapse of memory. Schaneman v.Schaneman at p. 126.

The case at hand is akin to In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994). In this case the decedent, DelphineWagner, executed a will in which she left out four of her children because they joined in a petition to place her under aconservatorship. She left all of her property to her two remaining children. Although the four children were successful inimposing the conservatorship on their mother, the court held that was not collateral estoppel or res judicata in determiningwhether or not Ms. Wagner had the capacity to execute a will as the standards of proof and the elements for imposing aconservatorship are different than for testamentary capacity.

The Supreme Court affirmed a summary judgment motion granted by the Trial Court that Ms. Wagner did possess testamentarycapacity and that she was not unduly influenced. The children to whom property was devised in the will were intimately involvedin all aspects of their mother's life during her declining years, therefore, the court finds that they did possess the opportunity toexercise undue influence but there was virtually no evidence of the other elements of undue influence. The court also states thatthe record clearly demonstrated that she was not subject to undue influence and that “despite the strenuous efforts of certain ofher children and her son-in-law Paul *37 Tank to control her, she was determined to retain control over her own affairs. Sheappeared to be of a mind clearly not amenable to undue influence”. The record before this Court establishes that Mary Ann hadthe same determination to retain control over her own affairs and she was not amenable to undue influence.

The court in Wagner also states that despite the two children receiving property under the will being thoroughly involved inthe feud which caused Delphine Wagner great anguish, nothing in the record showed these children's disposition to exerciseundue influence.

It is obvious the proponents in Wagner were in a confidential relation with the decedent as they were intimately involved inall aspects of her life and were thoroughly involved in the feud. Despite this, the court makes no mention of a confidentialrelationship or suspicious circumstances. This was so probably because the evidence was so clear that the conservatorship actiongreatly upset the decedent and gave her good reason to not leave property to the contestants.

Since no presumption ever arose in the case at hand, suspicious circumstances are not relevant. Assuming a presumption ofundue influence did arise, however, the suspicious circumstances argued by Appellants really are not suspicious. The firstsuspicious circumstance listed in Hedke is a vigorous campaign to maintain intimate relations. Although Orin, Melvina andSandy testified that they thought they didn't feel welcome to Cal's house after Mary Ann began residing there in 2009, therewas no evidence that Cal or Pat prevented anybody from visiting the home. Appellants argue that Cal and Pat “fostered anenvironment” in which the other children could not visit regularly. However, there is no evidence in the record to back that up.The evidence, instead, reveals they could visit at anytime and did, indeed, visit her especially the last three months of her life.It is ridiculous to argue a vigorous campaign to maintain intimate relations with Mary *38 Ann by Cal and Pat when she hada stream of visitors, a massive Christmas card project in December of 2011 done by Mary Ann and Sandy; visits by all of herchildren and a minister, Reverend Logston, (1384:8 to 1386:25) calls from her tenant, Gail Reed (1628:15 to 1629:20), callsfrom relatives including the Hughbanks (El 04,5-6:1693, 1) (105,16-17:1635,1), and regular hospice care from Cindy Cooper(1399:17 to 1400:22) and others. Each one of the other siblings who testified, Melvina (see page 27-28), Orin (see page 25),Sandy (see page 26) and Leroy (1659:8-21) all had access to Mary Ann. The only testimony of any of the siblings indicating Calwouldn't let her see Mary Ann was Sandy but this testimony is very inconclusive and weak. (See p. 26) Even Sandy, however,





testified that she saw her mother many times in the last two months of her life and then admitted she participated in the massiveChristmas card project in December of 2011 which was 2 1/2 to 3 months before she died. Also, it is clear she saw her motherregularly after her mother moved to North Platte (1125:2-4). She apparently did not go in Cal's house until the last 2 1/2 to3 months. Appellants also argue that Cal and/or Pat accompanied Mary Ann to many of her appointments with legal counseland doctors. In fact, Sandy took Mary Ann to many of her appointments including to the accountant (528:13-16). John Wolfalso testified that one of Cal's sisters took Mary Ann to things (306:1-4). Orin talked to her many, many times when she washaving financial problems. (1448:4-8) As stated in the facts, she met with Dan Zach by herself, and she met with her attorneysby herself. She met with Jason White by herself when he claims he caught her in a “lie” regarding the Custer Federal check(224:13 to 225:6).

Regarding the second suspicious circumstance noted in Hedke, lack of advice from an independent attorney, Appellants admitthat Mary Ann had advice from an independent attorney (see page 36 of Appellants' Brief) but, despite Mr. Wolf, Mr. Hermanand Mr. Norman's testimony about *39 all the measures they took in making sure Mary Ann was making her own decisionsand the testimony about how sharp she was, they claim Cal was “inextricably” tied to procuring the will. There is no evidenceto support this conclusion and, indeed, the testimony of all her attorneys and the memo of Mr. Norman is overwhelming thatMary Ann was calling her own shots when she met with the attorneys regarding what she wanted in her will and that she wantedthe conservatorship terminated. One misstated fact by Appellants was that Cal was present at execution of the February 18,2011 Will. Mr. Norman's testimony is clear that Cal was not present. (36:7-9) Also, the undisputed testimony is Cal didn't evenknow what the 2001 Will stated. (1043:5-7)

Appellants argument that counsel was “inextricably tied” to Cal does not carry any legal weight, even if true. Nebraska caseauthority is instructive regarding assistance given to a person to obtain an attorney and then the attorney does something tobenefit the person giving the assistance. The mere fact that the grantee procures an attorney to prepare a deed does not provethat the deed was obtained by improper means. McDonald v. McDonald, 207 Neb. 217,289 N.W.2d 136 (1980) also see In reEstate of Price, 223 Neb. 12, 338 N.W.2d 72 (1986) in which a father followed a daughter's suggestion that he seek independentcounsel from an attorney and then the daughter took the father to the attorney to execute a will. This did not support an argumentof suspicious circumstance or confidential relationship. Also, in In re Estate of Masur, 1992 Neb. App. Lexus 230 (1992)(notapproved for publication in Nebraska Court of Appeals permanent law reports) will contestants argued the proponent had anopportunity to exercise influence because she called an attorney and asked him to see the decedent about a power-of-attorney.The attorney ended up doing the will for the decedent but there was no evidence that she requested the attorney to suggest thewill. The court held when the attorney and other witnesses have testified directly to facts contradicting *40 the existence ofundue influence, undue influence cannot be inferred by the procurement of an attorney. Masur also holds a presumption ofundue influence that arises in a confidential relationship combined with suspicious circumstances is rebutted when the decedentis represented by competent independent counsel and the will was the voluntary act of the decedent. Mary Ann retained theNorman, Paloucek Law Firm by reason of a referral that was made by the Pastor and Deacon of the Berean Church she wasthen attending (1059:5 to 1060:7). The Pastor knew the referral was for Mary Ann and not for Cal (1060:12-17).

Regarding the third suspicious circumstance, Appellees admit Mary Ann was elderly and in a weakened physical conditionwhen she signed the Will, however, Mr. Norman and Mr. Herman both made it very clear she was still sharp and knew whatshe was doing. Also, the fact that she executed a will in August of 2001 leaving the farm to Cal of which Cal knew nothingabout, indicates her weakened physical condition didn't cause her to change the overall scheme of her will. Indeed, the onlychange of any significance in the February 2011 Will was deduction of the attorney fees from Orin's share and addition of thatsame amount to Leroy's share. That change is easily understood because of Mary Ann's explanation that Orin already got thatamount through the conservatorship action. She explained this to Mr. Herman and Mr. Norman.

The fourth suspicious circumstance, lack of consideration, does not exist in the case. Mary Ann explained at length to Mr.Norman, Mr. Herman, Mr. Wolf, Sherrylynn Hughbanks (El 05, 17-18:1693, 1), and Ms. Krzyzanowski, that Cal spent themost time on the farm and helped so he was getting it. The best evidence of all of this is Mary Ann's own words on the video/audio tape.




The fifth suspicious circumstance does not exist because the disposition was not unnatural or unjust for the same reasons aswhy there was consideration for the bequest explained in the *41 preceding paragraph. Also, Mary Ann's displeasure with theAppellants because of the conservatorship certainly helps explain the disposition.

Appellants state that Dr. Lawrence's testimony regarding dominance by Cal over Mary Ann supports the seventh suspiciouscircumstances. Dr. Lawrence actually testified that Mary Ann would come to appointments alone maybe 30% of the time andthe other 70% she would have somebody with her such as a granddaughter named Crystal and Sandy but mostly it was Patand Cal (776:8-22). Appellants refer to 34 pages of testimony of Dr. Lawrence to support their argument that Cal dominatedMary Ann. A review of this testimony doesn't indicate any domination whatsoever. At best it indicates Mary Ann, by her ownchoice, relied upon Cal for help. The dominating and controlling influence in Mary Ann's life was the conservatorship and lackof control of her finances which she wrote herself made her feel “kidnapped” (E57A, 2-3:1649, 1). It is obvious why MaryAnn quit seeing Dr. Lawrence as Dr. Lawrence knew that if she wrote the letter in September of 2000 and if a conservator wasappointed for Mary Ann then Mary Ann would not be able to carry out her own plan that she and Cal had to pay off the debts(822:19-25). The testimony of Orin, Mr. Zach, and Dr. Kahnk make it clear that Orin was the one attempting to dominate andcontrol Mary Ann which she resisted with all her strength to the day she died. There is nothing in the record to establish thatanybody caused Mary Ann to want to terminate the conservatorship. The evidence is overwhelming that she wanted controlof her own finances and did not want to be restricted. That is why Mary Ann quit using Dr. Lawrence. Mary Ann did expressto Dr. Lawrence that she was stressed about her finances but those problems had been solved by August of 2001 when MaryAnn signed the first will leaving the farm to Cal. Mary Ann had several appointments with Dr. Lawrence in August 2001 oneof which was on August 23, 2001, (one day before the 2001 will was signed that *42 left the farm to Cal) and there were nocomplaints by Mary Ann about her finances that day according to Dr. Lawrence. (832:15 to 833:15)

Regarding the sixth suspicious circumstance, Cal's participation in procuring the will, the testimony of Mr. Norman, (36:7-9) Mr.Herman (410:15-25) and Ms. Krzyzanowski (73:11 to 74:4) is clear that he wasn't present during the preparation or executionof the will. Appellants argue that Cal drafted a January 2011 will that left him the farm and that the February 18, 2011 Willwas similar. First of all Appellants fail to point out that both wills are similar to the August 2001 Will which left the farmto Cal as well. Cal explained that he wrote the January 2011 Will for Mary Ann to save her money and because she couldn'tget an appointment with John Wolf (1050:9 to 1051:15). Cal testified he started drafting it in December of 2010 because hismother was adamant about some changes she wanted. His mother hadn't told Cal what was in the John Wolf will but he knewwhat changes she wanted because Mary Ann told him. She told Cal again that she wanted him to receive the farm (1042:12to 1043:21). Mary Ann actually called the Norman, Herman Law Firm to do the February 2011 will (1045:21 to 1046:3). Calexplained that he didn't call the law firm because he or his mother didn't have the financial wherewithal. Cal also testified hismother had been living with him for 23 months, anguishing over the fact that she had a conservatorship and she wanted toaddress some personal matters because she was feeling like she was progressively getting worse health wise; out of compassionfor his mother, Cal researched what he could do to give her some peace of mind and so mid December he went to the libraryand researched wills; he asked her what her wishes were and she told him; and Cal thought he could provide her peace andcomfort and not having undue expense. (1046:20 to 1047:20)

How a presumption of undue influence disappears is illustrated in *43 In re Estate of Kajewski, 134 Neb. 485, 279 N.W.185(1938). In this case, the trial court instructed the jury that if any beneficiary occupied any confidential relation with the testatorit became the beneficiary's duty to show that the purported will was not signed by the testator through undue influence. Thetestator lived in the rectory with the Priest. The testator had been the janitor for the church and the associated school for abouteighteen years. He was in that position when the Priest became the Pastor three years before the testator's death. The testatorcontracted an infection and was quite ill. The Priest advised him to make a will and an attorney was called at the request ofthe testator. The attorney went to the Priest's home and asked that the Priest accompany him to the hospital. At the requestof the testator, the Priest made four different trips from the hospital to the testator's room in the basement of the rectory tobring certain specific articles to the testator. The court holds that a Priest and a parishioner under these circumstances createsa confidential relationship. However, the court holds even though the Priest is a beneficiary of the will, the evidence clearly




disclosed that his assistance was merely that of a minister or instrument. He made several trips to get certain papers, he did notact as scrivener of the will nor did he make any suggestions as to disposition of property. The court also notes that the will,under the circumstances disclosed, was not an unnatural one because the twenty-three contestants did not have much to do withthe testator and the testator stated that he did not want to leave them anything. A jury found in favor of the will contestant butthe Supreme Court reversed on the grounds that the jury instructions stating the beneficiary had to show that the will was notsigned by the testator through undue influence was erroneous because the presumption of confidential relation between a Priestand a parishioner was a presumption only and there was no evidence to show that the Priest had actually unduly influenced thedecedent. Thus, the court makes it clear that not only should no jury instruction have been given about a presumption *44 butthe matter shouldn't have even been submitted to the jury. This case strongly supports Appellees cross appeal that a directedverdict should have been granted to Appellees on the question of undue influence. By granting the cross appeal, then this Courtdoesn't even need to determine whether or not the jury instructions were improper.

II. THE DISTRICT COURT PROPERLY GRANTED APPELLEES' MOTION FOR DIRECTED VERDICT ONTHE ISSUE OF TESTAMENTARY CAPACITY.

The main evidence that Appellees point to to support the argument that the District Court should not have granted a directedverdict on the issue of testamentary capacity is Mary Ann was on a “plethora” of medications and that these medications couldhave a wide range of side effects. They rely upon the testimony of Dr. Mark Nielsen as to the side effects. The problem withAppellants' argument is that Dr. Nielsen made it clear that Mary Ann did not suffer from any of the potential side effects ofthe medications. As set forth in the facts section on p.17-18, Dr. Nielsen testified that he did not observe any bad side effectsnor did Mary Ann tell him about any side effects. He further testified that he did not observe any side effects in Mary Annfor any of the medications that affected her ability to reason, her ability to communicate and none of them caused sedation.Morphine was intended to cause sedation but that wasn't prescribed until the last day of her life. The last time Dr. Nielsen sawMary Ann was on January 24, 2011.

Also, The testimony of Mr. Herman, Mr. Norman and Ms. Krzyzanowski and Mr. Norman's memo (E 31:466) left no doubt thatMary Ann understood the nature of her act in making a will, knew the extent and character of her property, knew and understoodthe proposed disposition of her property and knew the natural objects of her bounty. Their testimony is bolstered by Mary Ann'smany statements to other people from the year 2000 until she executed the will on February 18, 2011 *45 that she wanted toleave the farm to Cal and she was upset by the conservatorship action brought by the four Contestants. The most significantchange in the February 18, 2011 Will was to deduct the attorney fees that Orin got from her from his share of the estate and addit to Leroy's share. This really supports the element of knowing and understanding the proposed disposition of her property.

In summary, the evidence of Appellants that there were potential side effects of the medications and that Mary Ann tired easily,was slower in her thought process, and had been in pain controlled by medication, taken as true, doesn't show she lackedtestamentary capacity.

III. THE AUDIO/VIDEO OF MARY ANN EXECUTING HER 2001 WILL WAS PROPER EVIDENCE FOR THEJURY TO VIEW.

The videotape of Mary Ann at her 2001 will signing is not “needless presentations of cumulative evidence” which is excludableunder Neb. Rev. Stat. § 27-403. Appellees argue that since the will signed in 2001 was received into evidence and sinceMr. Wolf testified as to why Mary Ann made the devises that she did in the will, the video was cumulative. Obviously, thisargument is without merit. The will and Mr. Wolf's testimony doesn't show Mary Ann's appearance, her demeanor, her abilityto communicate and the explanation, from her own mouth, as to why the will stated what it did. Although Appellants neverobjected to the 2001 will being received into evidence it would have been admissible under this Court's decision in In re Estateof Flider, 213 Neb. 153, 328 N.W.2d 197 (1982) which held that a prior will executed when the testator's testamentary ormental capacity was and is unquestioned, and as to which the existence of undue influence is not charged, and which conforms







substantially as to results produced to the instrument contested, may be considered as competent evidence for the purpose ofrefuting charges of undue influence or want of testamentary or mental capacity by showing that the testator had a constant andabiding scheme *46 for the distribution of her property. Appellants have argued that Mary Ann was unduly influenced whenshe signed the 2001 will but they, apparently, know that that was a specious argument because they never actually objected toadmission of the 2001 will into evidence. Since this will states that Cal got the farm, it only follows that the jury was entitledto see the circumstances surrounding the execution of the will, including how Mary Ann looked and behaved and what herexplanation was for giving the farm to Cal as shown on the video.

The video certainly did cause prejudice because it shows Mary Ann is a very alert, oriented person explaining why she isleaving the land to Cal which clearly refutes any arguments that she lacked testamentary capacity or could be subjected to undueinfluence. This is not “unfair” prejudice however.

Admission of a video showing execution of a will is not unprecedented in Nebraska. In Peterson v. Glinn, 232 Neb. 105, 439N.W.2d 516 (1989) the trial court received a video of a will execution into evidence. On appeal the court doesn't discuss thepropriety of this as, apparently, it was not assigned as error or possibly there was no objection to the offer.

Appellants argument that Mr. Wolf asked Mary Ann leading questions in the video is without merit. First of all there are veryfew leading questions. Secondly, John Wolf was a witness at the trial and Appellants had the opportunity to question him aboutMary Ann's ability to answer questions and his motivations in asking the questions.

The video really isn't testimony. It documents the execution of the will which Appellants alleged was not validly executed(T131). It shows Mary Ann's appearance and her ability to communicate, answer questions appropriately, have proper bodylanguage, smile and laugh at appropriate times, and just generally shows she knows what she is doing, none of which istestimony.

*47 The Appellants claimed in their Assignment of Error that the will video was inadmissible hearsay. However, this issuewas not discussed in their Brief. Suffice it to say the video was not hearsay because much of it wasn't offered for the truthof the matter asserted but to show that Mary Ann had testamentary capacity, the will was properly executed, Mary Ann hadtestamentary intent, there was no undue influence or fraud, Mary Ann's agreement to the will terms, her understanding of thenatural objects of her bounty, her understanding of the nature and extent of her property and her understanding of the dispositionof the property made by her will. Also, any statements that could be considered hearsay are excepted under Neb. Rev. Stat.§ 27-803 as nearly all the statements demonstrated Mary Ann's then existing state of mind including her intent, plan, motiveand design as to her estate plan.

IV. THE DISTRICT COURT DID NOT ERR WHEN IT ALLOWED THE 2001 WILL VIDEO SIGNING TO BETAKEN INTO DELIBERATIONS.

For some reason Appellants state that counsel for Appellees offered Exhibit No. 43 as testimony of Mary Ann. They refer tothe Bill of Exceptions at p. 1293:14-15 and p. 1295:21-22. This part of the Bill of Exceptions is when counsel for Appelleeswas responding to questions from the Court regarding Exhibit No. 57 which was a letter written by Mary Ann to John Wolfdated July 29, 2003. The will video is no different than a written document that is received into evidence. Mary Ann wrote threeletters in her own handwriting that were received into evidence. In a statement written by Mary Ann dated June 5, 2001 she setforth how she wanted her estate to be divided the most significant part of which was that Cal should get the farm, he can leaseit out, and she didn't want to have to divide or split up the land (E54, 1:293, 1); a letter dated April 11, 2002 in which Mary Annstates “it has been very upsetting to me that some of my children are trying to remove my *48 conservator, Dan Zach”, “eventhough I am not happy with the restrictions placed on me, I am completely satisfied with the decisions Dan Zach and I havemade”, she didn't want “interference from my four children, Mary, Sandy, Orin, and Melvina”, she was greatly upset that “I amaccused of not making sound decisions on my own” and “my four children should not interfere with my personal affairs justbecause they are not in agreement with my decisions” (E56,1-4:342, 1); and a letter dated July 29, 2003 to John Wolf in which







she states she feels she has been “kidnapped”, her children don't “need to know anything about my financial affairs unless Iwant to tell them”, “Melvin and I made plans before he died about what he wanted done and I have been denied the right to doas I see fit”, she wanted “all restrictions removed”, she is “afraid that my children will try to do something more against mywishes”, and that “I love all of my children but I don't like what they are doing to me”, (E57A, 1-5:1649,1).

It doesn't really matter how counsel for Appellees described the videotape. Allowing the jury access to the videotape duringdeliberations was a matter within the discretion of the Court. This discretion was not abused especially in light of the factthat the three documents written by Mary Ann, basically just reiterated what she said in the videotape. The videotape was notcumulative, however, because the jury actually got to see Mary Ann explain these things herself and they could observe herappearance, including her body language, demeanor and her overall understanding of what was going.

Furthermore, counsel for Appellees cannot find anything in the record where Appellants objected to the video being taken intodeliberations, therefore, any error was waived.

V. THE DISTRICT COURT DID NOT ERR IN ITS FURTHER INSTRUCTION TO THE JURY REGARDINGBURDEN OF PROOF.

*49 The jury posed a question during deliberations “please explain the difference between the burden of proof; greater weightof the evidence is not the same as having a shadow of a doubt” (1719:21-24). The Court in response to this instructed the jury“please refer to jury instruction no. 7” (1720:10). Instruction no. 7 (T290) was the standard definition for the greater weightof the evidence. Appellants did not object to that supplemental instruction. The Court asked counsel for Appellants if he hadany problems with reference to the jury instruction no. 7 and counsel responded “I don't have any problems with that part,your Honor” (1718:1-7).

VI. BRIEF ON CROSS APPEAL

Appellees assign as error the Trial Court's refusal to grant Appellees' Motion for Directed Verdict as to undue influence(1544:20-17). In support of the Cross Appeal Appellees would merely refer to Section I of the Brief which indicates that atleast three of the elements of undue influence were not proven, including that Mary Ann was not subject to undue influence,there was no disposition to exercise influence and that the result of the will was not the affect of any influence. In re Estate ofEllis, 9 Neb. App. 598, 616 N.W.2d 59 (2000) holds that all elements of undue influence must be proven to prevent summaryjudgment. The record reveals that the evidence of Appellants is just suspicion, surmise or conjecture. The Ellis court relies uponIn re Estate of Thompson, 153 Neb. 375, 385, 44 N.W.2d 814, 821 (1950) in holding:

Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence. There mustbe a solid foundation of established facts upon which to rest an inference of its existence. This propositionapplies with peculiar force when the result of drawing such an inference is to destroy the effect of a writteninstrument prepared with deliberation and signed and attested with all the formalities required *50 by lawfor the execution of a will.

CONCLUSION

Based on the foregoing, Appellees request that this Court affirm the August 9, 2013 Journal Entry and Judgment entered bythe District Court.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.




Orin M. CLINGER, Mary E. Chalupa, Melvina D. Bundy, 2014 ...

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