In re Estate of Walker , 315 Neb. 510 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510In re Estate of Rita A. Walker, deceased.
Mark E. Walker, appellant, v.
Michael J. Walker, appellee.
___ N.W.2d ___
Filed December 1, 2023. No. S-22-979.
1. Guardians and Conservators: Judgments: Appeal and Error. Appeals
of matters arising under the Nebraska Probate Code are reviewed for
error on the record. When reviewing a judgment for errors on the
record, the inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
2. Decedents’ Estates: Appeal and Error. An appellate court, in review-
ing a probate court judgment for errors appearing on the record, will
not substitute its factual findings for those of the probate court where
competent evidence supports those findings.
3. Wills. A prior will, executed when the testator’s testamentary or men-
tal capacity was and is unquestioned, and as to which the existence of
undue influence is not charged, and which conforms substantially as to
the results produced to the instrument contested, may be considered as
competent evidence for the purpose of refuting charges of undue influ-
ence or want of testamentary or mental capacity by showing that the
testator had a constant and abiding scheme for the distribution of his or
her property.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
5. Appeal and Error. In a de novo review, an appellate court reaches a
conclusion independent of the trial court.
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 5106. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
7. Rules of Evidence: Hearsay: Words and Phrases. A “statement,” for
purposes of the Nebraska Evidence Rules, is an oral or written asser-
tion or nonverbal conduct of a person, if it is intended by him or her as
an assertion.
8. Hearsay. An out-of-court statement is not hearsay if the proponent
offers it for a purpose other than proving the truth of the matter asserted.
9. Rules of Evidence: Hearsay: Intent. A statement of the declarant’s
then-existing state of mind, such as intent, is excluded from the hear-
say rule.
10. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
11. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
12. Trial: Evidence. Evidence that is irrelevant is inadmissible.
13. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
14. Evidence: Proof. The bar for establishing evidentiary relevance is not
a high one and requires only the probative value of the evidence to be
something more than nothing.
15. Wills: Evidence. Competent evidence of a testator’s constant and abid-
ing scheme for the distribution of his or her property is not limited to
prior duly executed wills.
16. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
17. Evidence: Words and Phrases. Competent evidence is evidence that is
admissible and tends to establish a fact in issue.
18. Trial: Evidence: Proof. Where a party has shown that competent
evidence exists to support his or her burden of proof, and competent
evidence to the contrary has been produced, or different conclusions
or inferences may reasonably be drawn from the evidence, it is then
exclusively the province of the fact finder to determine the weight of the
evidence and judge the credibility of witnesses.
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 51019. Wills: Proof. When the validity of a will is contested, the proponent
of the will has the burden of establishing prima facie proof of due
execution, death, testamentary capacity, and venue, whereas contestants
have the burden of establishing undue influence, fraud, duress, mistake,
or revocation.
20. ____: ____. In a will contest, parties have the ultimate burden of per-
suasion as to matters with respect to which they have the initial burden
of proof.
21. Trial: Evidence: Presumptions. In a bench trial, the court is presumed
to have considered only competent and relevant evidence in making
its decision.
22. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
Appeal from the County Court for Douglas County:
Stephanie S. Shearer, Judge. Reversed and remanded with
directions.
Lisa M. Line, of Brodkey, Cuddigan, Peebles, Belmont &
Line, L.L.P., for appellant.
David D. Begley, of Elder Law & Estate Planning of
Nebraska, David D. Begley, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this appeal from a successful will contest, the proponent
of the proposed will contends that the court erred in excluding
from evidence exhibit 7, which purported to be a prior will
signed by the decedent, and finding the proposed will was the
product of undue influence. We conclude that exhibit 7 was
admissible under a hearsay exception and that it was relevant.
And because its consideration may weigh on the court’s deter-
minations regarding testamentary capacity and undue influ-
ence, we reverse the court’s order refusing to admit the pro-
posed will to probate and remand the cause with directions.
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510II. BACKGROUND
1. Probate Proceedings
and Will Contest
On September 26, 2021, Rita A. Walker died at the age of
84. Thereafter, one of her sons, Mark E. Walker, filed a peti-
tion in county court for formal probate of a will purportedly
executed by Rita on September 15, 2021 (the proposed will).
Mark is the proposed will’s only proponent.
As relevant here, the proposed will named Mark as the
sole beneficiary and personal representative of Rita’s estate.
It omitted her three other sons, Michael J. Walker, Stephen
W. Walker, and Richard A. Walker. Michael is the proposed
will’s opponent.
Michael objected to the probate of the proposed will, alleg-
ing, in pertinent part, that (1) Rita lacked testamentary capac-
ity as of September 15, 2021, which was 11 days prior to
her death, and (2) the proposed will was the product of
undue influence.
2. Bench Trial
The county court held a bench trial on Mark’s petition for
formal probate of the proposed will, during which it received
evidence from both parties. The evidence included the tes-
timony of Rita’s four sons; a family friend and notary, who
was present when Rita signed the proposed will; and a nurse
from a rehabilitation facility. The court also received various
exhibits. In light of Michael’s objections, the evidence substan-
tially related to Rita’s purported lack of testamentary capacity
at the time of the proposed will’s execution and his claim of
undue influence.
The court excluded from evidence a typed document offered
by Mark as exhibit 7, which purported to be a prior will signed
by Rita in February 2016. We will discuss exhibit 7 in more
detail later in the opinion.
- 514 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 5103. County Court’s Order
Following the bench trial, the county court entered an order
concluding that the proposed will was validly executed, but
refusing to admit it to probate because, the court found, (1)
Mark failed to meet his burden to prove Rita’s testamentary
capacity at the time of execution and (2) the proposed will was
the product of undue influence. The order did not specifically
address exhibit 7.
Based on its findings of lack of testamentary capacity
and the existence of undue influence, the court ordered the
case to proceed intestate and appointed Michael as personal
representative.
4. Motion for New Trial or to
Alter and Amend Order
Mark filed a motion for new trial or, in the alternative,
to alter and amend the order. Following a hearing, the court
entered an order “den[ying]” the motion. In pertinent part, it
rejected Mark’s argument that the court erred in not admitting
exhibit 7 into evidence at trial. We will discuss the court’s rea-
soning in more detail in our analysis.
Mark filed a timely appeal, which we moved to our docket. 1
III. ASSIGNMENTS OF ERROR
Mark assigns, reordered, that the county court erred in
(1) determining that exhibit 7 was inadmissible hearsay, (2)
determining that exhibit 7 was not relevant and therefore inad-
missible, and (3) determining that the proposed will was void
due to undue influence and ordering the estate to proceed in
intestacy with Michael as personal representative.
IV. STANDARD OF REVIEW
[1,2] Appeals of matters arising under the Nebraska Probate
Code are reviewed for error on the record. When reviewing a
judgment for errors on the record, the inquiry is whether the
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 2
An appellate court, in reviewing a probate court judgment for
errors appearing on the record, will not substitute its factual
findings for those of the probate court where competent evi-
dence supports those findings. 3
Additional standards of review will be set forth, as appropri-
ate, in the analysis.
V. ANALYSIS
1. Admissibility of Exhibit 7
Two of Mark’s assignments of error challenge the county
court’s conclusion that exhibit 7 was inadmissible. Specifically,
he asserts that the court erred in determining that exhibit 7 was
inadmissible hearsay and irrelevant.
[3] The questions regarding exhibit 7 revolve around a
proposition long stated in our cases. A prior will, executed
when the testator’s testamentary or mental capacity was and
is unquestioned, and as to which the existence of undue influ-
ence is not charged, and which conforms substantially as
to the 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 or mental
capacity by showing that the testator had a constant and abid-
ing scheme for the distribution of his or her property. 4
Different standards of review apply to the hearsay and
relevance determinations, and the relevant proceedings dif-
fer slightly. We will address Mark’s hearsay argument first,
2
In re Estate of Larson, 311 Neb. 352, 972 N.W.2d 891 (2022).
3
In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001).
4
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015); In re Estate
of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982); In re Estate of Camin,
212 Neb. 490, 323 N.W.2d 827 (1982). See, In re Estate of Bose, 136 Neb.
156, 285 N.W. 319 (1939); Blochowitz v. Blochowitz, 122 Neb. 385, 240
N.W. 586 (1932). See, also, Pruss v. Pruss, 245 Neb. 521, 514 N.W.2d 335(1994).
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510followed by his relevance argument. But before addressing
Mark’s specific arguments, we discuss exhibit 7.
(a) Additional Facts
Exhibit 7 was a typed document that purported to be a prior
will signed by Rita on February 22, 2016. It consisted of six
pages and had the title “Last Will and Testament of Rita Ann
Walker.” Similar to the proposed will, exhibit 7 named Mark
as the sole beneficiary and “Independent Executor” of Rita’s
estate. Thus, it generally provided for the same disposition as
the proposed will. The signatures of Rita and a notary appeared
on the third page of exhibit 7. It did not contain the signatures
of any other witnesses.
At trial, Michael objected to exhibit 7’s relevance. Mark
responded that the exhibit was relevant to Rita’s “intent” and
“mindset” and to Michael’s claim of undue influence. The fol-
lowing exchange took place on the record:
[Michael’s counsel:] Objection, Your Honor. Relevancy
[a]nd, well, . . . there’s only one witness, so . . . it’s a
meaningless document.
THE COURT: With regard to the relevance?
[Mark’s counsel:] The relevance, well, in 2016, there
was [a] promissory note taken out. And, as it does
appear that there was a document entitled Last Will and
Testament that was also signed by the descendant [sic], I
think . . . the question is, historically, if terms are similar,
it buttresses what the current document shows. It doesn’t
say that that is a will, but it does go to intent, it goes to
the mindset of the mother, and whether or not she was
. . . subject to undue influence in the last 11 days of
her life.
THE COURT: [Michael’s counsel], response?
[Michael’s counsel:] Well, . . . I just reiterate, Judge,
that it’s . . . a completely meaningless document. . . .
[W]e don’t have [the notary who signed exhibit 7] here. .
. . [T]his is just too far afield.
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510THE COURT: . . . Okay. Well, at this time, the objec-
tion will be sustained. And I guess I’ll add, for the
record, that the Court finds a hearsay issue with the
document. I didn’t receive it, because it would be a prior
statement essentially offered . . . for the proof of the
matter asserted; and, in addition to the relevance objec-
tion by [Michael’s counsel], the Court has concerns with
the hearsay.
In other words, based on Michael’s relevancy objection and the
court’s concerns about the “hearsay issue,” the court refused to
receive exhibit 7 as evidence.
Later, in his motion for new trial or to alter and amend the
court’s order, Mark challenged the exclusion of exhibit 7 from
evidence at trial. In his motion, Mark specifically alleged that
the court erred in “not admitting [e]xhibit 7 . . . into evidence
over the hearsay objection as the document was offered to
show consistency of the state of mind of the decedent and
as such should be excepted pursuant to Neb.[ ]Rev.[ ]Stat.
§[ ]27-803(3) [(Cum. Supp. 2022)].”
Following a hearing, the court entered an order “den[ying]”
the motion. It reasoned, in part, that “the admission on Exhibit
7 does not assist the Court in determining if the proponent of
the will meet[s] their burden in this matter.”
(b) Hearsay
(i) Standard of Review
[4,5] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence over
a hearsay objection or exclude evidence on hearsay grounds. 5
In a de novo review, an appellate court reaches a conclusion
independent of the trial court. 6
5
Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).
6
New Tek Mfg. v. Beehner, 270 Neb. 264, 702 N.W.2d 336 (2005).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510(ii) Resolution
[6-8] We first address Mark’s hearsay argument. Hearsay is
a statement, other than one made by the declarant while testi-
fying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted. 7 A “statement,” for purposes of
the Nebraska Evidence Rules, is an oral or written assertion or
nonverbal conduct of a person, if it is intended by him or her
as an assertion. 8 An out-of-court statement is not hearsay if the
proponent offers it for a purpose other than proving the truth of
the matter asserted. 9
On appeal, the parties appear to agree that exhibit 7 was
hearsay. However, Mark maintains that it was admissible
because, he asserts, it satisfied the “state of mind” hearsay
exception under Neb. Rev. Stat. § 27-803 (Cum. Supp. 2022).
In support, he points to a case 10 reasoning that the state of mind
exception applied to a testator’s out-of-court statements regard-
ing her intentions for the disposition of her property.
[9] To determine whether exhibit 7 was admissible under
§ 27-803, we begin with a review of the statute. Section 27-803
excludes from the hearsay rule:
(3) A statement of the declarant’s then existing state
of mind, emotion, sensation, or physical condition (such
as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification, or
terms of declarant’s will.
Thus, a statement of the declarant’s then-existing state of mind,
such as intent, is excluded from the hearsay rule. 11
7
Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022).
8
§ 27-801(1).
9
Elbert v. Young, supra note 5.
10
In re Estate of Clinger, supra note 4.
11
See § 27-803(3).
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510To the extent that Michael now argues that the hearsay
ruling was based upon exhibit 7’s failure to comply with
the requirements for execution and witnessing of a will, we
observe that this argument would conflict with the plain lan-
guage of the statute. Section 27-803(3) applies to a “state-
ment,” which, as defined by § 27-801(1), is (a) an oral or
written assertion or (b) nonverbal conduct of a person, if it is
intended by him or her as an assertion. This definition is not
limited to a valid will.
Pursuant to our standard of review, we review de novo the
court’s ultimate determination to exclude exhibit 7 on hearsay
grounds, 12 and we reach an independent conclusion that exhibit
7 was admissible under § 27-803(3). At trial, Mark offered
exhibit 7 for the stated purpose of showing Rita’s “intent” and
“mindset,” which fits squarely within this exception. Then,
in his motion for new trial or to alter and amend the order,
Mark made a similar argument that exhibit 7 was admissible
to show “consistency of the state of mind of the decedent.”
We conclude that Mark’s stated purposes for offering exhibit 7
excluded it from the hearsay rule, and therefore, the court erred
in determining that it was inadmissible hearsay.
The next question is whether exhibit 7 was relevant.
(c) Relevance
(i) Standard of Review
[10,11] Where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 13 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 14
12
See Elbert v. Young, supra note 5.
13
Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).
14
State v. Ramirez, 314 Neb. 419, 990 N.W.2d 550 (2023).
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315 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 315 Neb. 510(ii) Resolution
We now turn to Mark’s relevance argument. Mark contends
that exhibit 7 was relevant to Rita’s “intent” and “whether
that intent was overwhelmingly changed by the influence
of Mark.” 15 He relies on a prior case, 16 which applied the
proposition set forth above, that a prior will, in certain cir-
cumstances, may be considered as competent evidence for
the purpose of refuting charges of undue influence or want of
testamentary or mental capacity by showing that the testator
had a constant and abiding scheme for the distribution of his
or her property.
Michael argues that that proposition does not apply
because, he asserts, our previous cases involved a “real will,”
rather than a “piece [of] paper signed by one notary.” 17 In
other words, he contends that the principle of the proposition
applies only to a duly executed will and not to another instru-
ment purporting to be dispositive in character. In support,
Michael points to Neb. Rev. Stat. § 30-2327 (Reissue 2016),
which provides:
Except as provided for holographic wills,[ 18] writ-
ings within section 30-2338,[ 19] and wills within section
30-2331,[ 20] every will is required to be in writing signed
by the testator or in the testator’s name by some other
individual in the testator’s presence and by his direction,
and is required to be signed by at least two individuals
15
Brief for appellant at 19.
16
In re Estate of Camin, supra note 4.
17
Brief for appellee at 23 (citing In re Estate of Clinger, supra note 4; Pruss
v. Pruss, supra note 4; and In re Estate of Flider, supra note 4).
18
See Neb. Rev. Stat. § 30-2328 (Reissue 2016).
19
Neb. Rev. Stat. § 30-2338 (Reissue 2016) (separate writing identifying
bequest of tangible property that is referred to by will).
20
Neb. Rev. Stat. § 30-2331 (Reissue 2016) (written will executed in
compliance with § 30-2327 or § 30-2328 or law at time of execution of
place where will is executed or of place where at time of execution or at
time of death testator is domiciled, has place of abode, or is national).
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510each of whom witnessed either the signing or the testa-
tor’s acknowledgment of the signature or of the will.
(Emphasis supplied.) Based on this language, Michael asserts
that exhibit 7 had “no legal testamentary meaning” 21 and was
therefore irrelevant.
We agree with Michael to the extent that he suggests exhibit
7 was not a duly executed will under § 30-2327. As noted
above, exhibit 7 did not contain the signatures of two wit-
nesses. But its failure to strictly comply with § 30-2327 does
not necessarily mean that exhibit 7 was irrelevant.
[12-14] Basic principles are clear. Evidence that is irrel-
evant is inadmissible. 22 But evidence is relevant if it has “any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.” 23 The
bar for establishing evidentiary relevance is not a high one and
requires only the probative value of the evidence to be some-
thing more than nothing. 24
We conclude that exhibit 7 was relevant. Although it was
not a duly executed will, our case law demonstrates that it
was relevant evidence for the purpose of refuting charges of
undue influence or want of testamentary or mental capacity
because it had a tendency to show that Rita had a constant and
abiding scheme for the distribution of her property.
Contrary to Michael’s assertion, our cases have expressly
applied our proposition regarding the admissibility of prior
wills when considering the admissibility of other instru-
ments. 25 Moreover, our cases recognize that other types of
21
Brief for appellee at 24.
22
Neb. Rev. Stat. § 27-402 (Reissue 2016); Lindsay Internat. Sales & Serv.
v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018).
23
Neb. Rev. Stat. § 27-401 (Reissue 2016).
24
State v. Lorello, 314 Neb. 385, 991 N.W.2d 11 (2023).
25
See, e.g., In re Estate of Bose, supra note 4 (applying principle to warranty
deed); Blochowitz v. Blochowitz, supra note 4 (applying principle to
warranty deeds).
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510evidence may be relevant to a testator’s intent for the distribu-
tion of his or her property. 26 Other jurisdictions have reached
similar conclusions. 27
[15] For clarification, we hold that competent evidence of a
testator’s constant and abiding scheme for the distribution of
his or her property is not limited to prior duly executed wills.
Because exhibit 7 was relevant for that precise purpose and
thus admissible, we address in the next section whether the
court’s exclusion of it warrants reversal.
2. Exclusion of Exhibit 7
Having concluded that exhibit 7 was admissible, we must
next consider whether the county court’s exclusion of it was
reversible error.
(a) Standard of Review
[16] In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substan-
tial right of the complaining party. 28
[17,18] Competent evidence is evidence that is admissible
and tends to establish a fact in issue. 29 Where a party has
shown that competent evidence exists to support his or her
26
See, e.g., In re Estate of Clinger, supra note 4 (video of execution of
earlier will); Jensen v. Priebe, 163 Neb. 481, 80 N.W.2d 127 (1956)
(writing of testator to lawyer); In re Estate of Johnson, 100 Neb. 791,
799, 161 N.W. 429, 432 (1917) (statement by testator “‘that he had always
wanted to give [his son] something’”).
27
See, e.g., Matter of Estate of Gersbach, 125 N.M. 269, 960 P.2d 811(1998); Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996); Cale v.
Napier, 186 W. Va. 244, 412 S.E.2d 242 (1991); Bennett v. Bennett, 454
So. 2d 535 (Ala. 1984); Perry v. Aldrich, 196 So. 2d 521 (Miss. 1967);
In re Will of Franks, 231 N.C. 252, 56 S.E.2d 668 (1949); Legler et al. v.
Legler, 187 Or. 273, 211 P.2d 233 (1949); Storbeck v. Fridley, 240 Iowa
879, 38 N.W.2d 163 (1949); Baker v. Spears, 357 Mo. 601, 210 S.W.2d
13 (1948); In re Estate of Osbon, 205 Minn. 419, 286 N.W. 306 (1939);
Redford v. Booker, 166 Va. 561, 185 S.E. 879 (1936).
28
Hernandez v. Dorantes, supra note 13.
29
In re Application A-19594, ante p. 311, 995 N.W.2d 655 (2023).
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510burden of proof, and competent evidence to the contrary has
been produced, or different conclusions or inferences may
reasonably be drawn from the evidence, it is then exclusively
the province of the fact finder to determine the weight of the
evidence and judge the credibility of witnesses. 30
(b) Additional Facts
Consistent with the county court’s exclusion of exhibit 7, the
court’s initial order after the trial did not consider or refer to
that evidence.
At this point, the county court’s order overruling Mark’s
motion for new trial or to alter and amend its previous order
becomes particularly important. As relevant here, it stated:
Mark . . . alleges the Court erred in not admitting
Exhibit 7. The court finds if it was error, that such error
was harmless. Exhibit 7 is alleged to be a prior will of
the decedent in this matter. It is signed but not witnessed
or notarized. Exhibit 7 does not meet the statutory
requirement of a valid will. Additionally, the admis-
sion on Exhibit 7 does not assist the Court in determin-
ing if the proponent of the will meet[s] their burden in
this matter.
The Court found the proponent of the Will failed to
meet their burden regarding capacity of the testator.
Additionally, the Court found by preponderance of the
evidence that the testator was subject to undue influ-
ence, Mark . . . had the opportunity to exercise such
influence on the Testator, there was a disposition to
exercise such influence, and the result was clearly the
effect of such influence.
(c) Resolution
[19,20] When the validity of a will is contested, the pro-
ponent of the will has “‘the burden of establishing prima
30
See Estate of Block v. Estate of Becker, 313 Neb. 818, 986 N.W.2d 726(2023).
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510facie proof of due execution, death, testamentary capacity, and
venue,’” whereas contestants have “‘the burden of establishing
undue influence, fraud, duress, mistake[,] or revocation.’” 31 In
a will contest, parties have the ultimate burden of persuasion as
to matters with respect to which they have the initial burden of
proof. 32 Thus, as relevant here, Mark had the burden of produc-
tion and persuasion to prove Rita’s testamentary capacity when
she executed the proposed will and a burden of production
to rebut Michael’s claim of undue influence. Because Mark
offered exhibit 7 as evidence to meet those burdens, we con-
clude that its exclusion unfairly prejudiced his substantial right
and thus was reversible error. 33
The language of the county court’s order suggests that it
believed exhibit 7 could not be considered as competent evi-
dence for such purposes. The court seems to have reached that
conclusion based on its implicit determinations that exhibit 7
was not a duly executed will under § 30-2327 and that it was
irrelevant. Thus, the court’s language does not demonstrate that
it ever considered the weight of exhibit 7.
And the weight to be given to each piece of evidence is cru-
cial under our standard of review. We have already concluded
that despite its failure to comply with § 30-2327, exhibit 7
was competent evidence for the purpose of refuting charges
of undue influence or want of testamentary or mental capacity
because it had a tendency to show that Rita had a constant and
abiding scheme for the distribution of her property. It follows
that its failure to comply with § 30-2327 and other circum-
stances surrounding exhibit 7 did not affect its admissibility.
Rather, the county court’s role required it to determine the
weight of such evidence regarding testamentary capacity and
undue influence.
31
Bohling v. Bohling, 309 Neb. 625, 636, 962 N.W.2d 224, 232 (2021)
(quoting Neb. Rev. Stat. § 30-2431 (Reissue 2016)).
32
See In re Estate of Mecello, supra note 3.
33
See Hernandez v. Dorantes, supra note 13.
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IN RE ESTATE OF WALKER
Cite as 315 Neb. 510But that question turns upon the court’s view of the facts.
Because our standard of review gives considerable deference
to the county court’s factual findings, that court should assess
in the first instance the facts underlying the sufficiency of
the evidence—including exhibit 7—to establish testamentary
capacity and rebut the claim of undue influence.
The court’s passing reference to harmless error does not
persuade us that it considered the weight, if any, to be given
to exhibit 7. The statement was less than precise. “Harmless
error” is a standard of review for the appellate courts. 34 We
decline to read into the court’s statement more than it said. We
therefore find that the exclusion of exhibit 7 unfairly preju-
diced Mark’s substantial rights.
[21] Before concluding, we note that in a bench trial, our
law favors admitting ultimately unpersuasive evidence. In a
bench trial, the court is presumed to have considered only com-
petent and relevant evidence in making its decision. 35 Here, the
trial court might instead have admitted exhibit 7, and then cho-
sen to give it little or no weight, thereby enabling us to apply
that principle.
3. Undue Influence
[22] Mark’s remaining assignment of error challenges the
county court’s determination that the proposed will was the
product of undue influence. Because we have determined
that the court’s evidentiary ruling must be reversed and the
cause must be remanded, we do not consider this assignment.
An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it. 36
34
See Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007) (erroneous
admission of evidence is harmless error and does not require reversal if
evidence is cumulative and other relevant evidence, properly admitted,
supports finding by trier of fact).
35
Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72(2022).
36
Brush & Co. v. W. O. Zangger & Son, 314 Neb. 509, 991 N.W.2d 294(2023).
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Cite as 315 Neb. 510We express no opinion regarding the weight, if any, that
should be given on remand to exhibit 7 regarding testamentary
capacity and undue influence.
VI. CONCLUSION
Having reviewed this appeal for errors on the record, we
conclude that the county court erred in determining that exhibit
7, which purported to be a prior will signed by the decedent,
was inadmissible hearsay and irrelevant. But we cannot con-
clude from the record that the court examined the weight of
exhibit 7 when making its determinations regarding testa-
mentary capacity and undue influence. We therefore reverse
the order refusing to admit the proposed will to probate and
remand the cause to the county court with directions to recon-
sider the existing record, including exhibit 7, to determine
whether the proponent met his burden of proving testamentary
capacity and whether the contestant met his burden of prov-
ing undue influence. If upon remand the court concludes that
the proponent did not meet his burden or that the contestant
met his burden, it should reject the proposed will and order
the case to proceed intestate. On the other hand, if the court
concludes that the proponent satisfied his burden of proof and
that the contestant did not, it should admit the proposed will
to probate.
Reversed and remanded with directions.