In re Estate of Lowe ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE ESTATE OF LOWE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE ESTATE OF ROBERT B. LOWE, DECEASED.
BARBARA LOWE KUNCL, APPELLANT,
V.
ALLEN L. FUGATE, APPELLEE.
Filed March 9, 2021. No. A-20-412.
Appeal from the District Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed.
Timothy P. Brouillette, of Brouillette, Dugan, Troshynski & Bellew, P.C., L.L.O., for
appellant.
Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of Jacobsen, Orr, Lindstrom &
Holbrook, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
MOORE, Judge.
I. INTRODUCTION
Barbara Lowe Kuncl (Kuncl) appeals from the order of the district court for Lincoln
County, which granted summary judgment in favor of Allen L. Fugate (Fugate), the personal
representative (PR) of the estate of Robert B. Lowe (Lowe), deceased. Kuncl, who is Lowe’s niece,
challenged the probate of Lowe’s will, which was drafted by Fugate. On appeal, she challenges
the court’s findings that Lowe had the requisite testamentary capacity to execute his will and that
he was not subject to undue influence. She also challenges the court’s exclusion of certain evidence
as a discovery sanction. Finding no error, we affirm.
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II. BACKGROUND
Lowe was a long-time resident of North Platte, Nebraska, and an active volunteer in the
community, including serving on North Platte’s Salvation Army’s board. Lowe never married and
never had any children, and he was employed primarily as a realtor.
Lowe’s brother was also a long-time North Platte resident, was employed as an attorney,
and had one child, Kuncl. Kuncl was 77 years old at the time of her deposition in April 2019; she
left North Platte when she was in her early 20s and had been living in Florida for the past 22 years.
Prior to that, she lived in Ohio. Kuncl has one child, Kristine Beall (Beall), who lives in Ohio.
Beall has one child, Jeffrey Montgomery (Montgomery), who was attending college in Chicago,
Illinois, at the time of Beall’s deposition in this case. Neither Beall nor Montgomery has ever lived
in North Platte.
Fugate is an attorney licensed in Nebraska, and he has practiced in North Platte since 1982.
His practice areas have included estate planning and the probate of decedent’s estates and
probate-related litigation. Fugate had known Lowe since approximately 1975. Fugate was aware
of Lowe’s connection to various charitable boards upon which Lowe served.
Fugate drafted a will for Lowe dated June 3, 2015, in which Lowe named Fugate as his
PR. The 2015 will states that Lowe was revoking all prior wills and codicils made by him and gave
all of his “tangible personal property of every nature and wherever situated” as well as “the rest,
residue and remainder of [Lowe’s] estate, real, personal and mixed, wherever situate[d],” to “the
Salvation Army North Platte.” In the section entitled “FAMILY INFORMATION,” the will states
that Lowe was single, had no children, and had “a niece and nephew who are the children of my
deceased brother” and specifies that Lowe had not “made any provision in this Will for them as
my brother . . . adequately provided for them.” In Kuncl’s deposition, she acknowledged that after
her parents died in 1996, she inherited substantially all of their assets with Beall and Montgomery
receiving “a small amount” from Donald’s estate. In Fugate’s affidavit admitted in the summary
judgment proceedings, Fugate states that the reference in the will to Montgomery as being Lowe’s
“nephew” was a scrivener’s error, also indicating that Lowe had confirmed to him that Kuncl was
his brother’s daughter, that Beall was Kuncl’s daughter, and that Montgomery was Beall’s son.
Lowe was 89 years old when he died on November 1, 2017.
On November 6, 2017, Fugate filed an application seeking informal probate of will and
informal appointment of PR in the Lincoln County Court, and he subsequently was appointed and
accepted appointment as PR. Kuncl objected and filed a petition to set aside the informal probate
and sought supervised administration of the estate. This pleading was subsequently dismissed
pursuant to a motion to dismiss filed by Fugate and to a joint stipulation of the parties. On January
23, 2018, through legal counsel, Fugate filed a petition, seeking formal probate of the will, a
determination of heirs, and appointment of PR; he again was appointed and accepted appointment
as PR.
On February 6, 2018, Kuncl filed an objection to the formal probate petition. She alleged
that Lowe was “susceptible to the exercise of undue influence because of his advanced age and
physical and mental condition” and that the execution of his will “was caused by the exercise of
undue influence by one or more beneficiaries named” in the will. Alternatively, she alleged that
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Lowe lacked sufficient testamentary capacity to execute the will. On October 22, Kuncl filed a
notice of transfer, and the case was transferred to the district court.
In July 2018, Kuncl responded to written interrogatories from Fugate, which included a
specific request that she disclose experts that she expected to call at trial, the subject matter to
which the expert was expected to testify, the qualification of each expert, the substance of facts
and opinions to which the experts were expected to testify, and a summary of the grounds for each
opinion. Kuncl answered that her attorney had not made a final determination as to which experts
would testify at trial, but she stated that “[o]nce this determination has been made, counsel for
[Kuncl] will supplement this answer to Interrogatory.” Then at Kuncl’s deposition taken in April
2019, in response to an inquiry from Fugate’s counsel as to whether Kuncl had retained an expert
in the case, Kuncl stated, “I haven’t. No.” At that point, Kuncl’s counsel stated, “I think for the
record we have consulted -- Have not received any reports, but we have consulted with Dr. Lee
Kimzey in town.” Kuncl’s counsel also stated, “He has not reviewed anything as of yet concerning
this case.”
On January 2, 2020, Fugate filed a motion for summary judgment and an index listing the
evidence in support of the motion.
A summary judgment hearing was held before the district court on January 27, 2020. The
court accepted the exhibits offered by Fugate, including various pleadings, a copy of Lowe’s 2015
will, an affidavit from Fugate, and various depositions. The court also accepted the deposition of
a long-time acquaintance of Lowe’s offered by Kuncl. Fugate objected to Kuncl’s offer of an
affidavit of her expert, Kimzey, because Kuncl had not filed an index of evidence as required by
Neb. Ct. R. § 6-1526 (rev. 2018), the affidavit had not been not timely served pursuant to Neb.
Rev. Stat. § 25-1332 (Cum. Supp. 2020), and Kimzey was not disclosed in discovery as requested.
Fugate also objected on the grounds of relevance, reliability, foundation, and lack of an actual
opinion contained within the affidavit and argued that the affidavit accordingly was not admissible
under Neb. Rev. Stat. § 27-702 (Reissue 2016) as an expert opinion. The court took the objections
under advisement, and it ultimately excluded the affidavit from evidence.
Dr. Jeffrey Brittan had been Lowe’s primary care doctor for several years, beginning in
approximately 2004 and continuing until Lowe’s death in November 2017. Brittan described
Lowe’s health overall as “pretty good.” Lowe was diagnosed with lymphoma in October 2004, but
he had reached remission status by October 2005. In subsequent followup appointments, Lowe’s
oncologist noted that Lowe was fairly active at age 79 and walked approximately 2 miles a day.
Brittan’s medical records for Lowe do not show any treatment from 2010 to 2015. Brittan
did not know of Lowe seeking medical treatment from any other doctor during this period and
testified that he always believed he was Lowe’s primary healthcare doctor. Brittan believed that
the gap was due to Lowe not having to be seen, explaining that he was provided with Lowe’s
medical records from third parties, including Lowe’s oncologists, hospitals, and nursing
home/assisted living facilities for coordination of care.
Brittan testified that Lowe became physically weak as he aged but that he did not notice
any issues with Lowe “from a mental standpoint.” Brittan did not have any concerns about Lowe’s
vision after he had cataract surgery in March 2010. Lowe was approved to drive after a physical
in March 2016 when Brittan characterized Lowe’s heath as “pretty good.” Lowe was admitted to
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the hospital in May and again in June 2017 for pneumonia. During followup appointments, Brittan
found that Lowe was a little weak and recovering from his admission to the hospital but Brittan
did not find him to be confused. Brittan explained that any noted confusion by hospital staff during
the admissions would have been resolved by the time of Lowe’s followup appointments with
Brittan. He further testified that any such confusion noted by hospital staff would be typical of a
hospitalized 89-year-old man, recovering from pneumonia.
By July 2017, Lowe had fallen and was living in a nursing home. Brittan started Lowe on
“some breathing treatments” due to increased leg swelling and edema. In August, Lowe was
admitted to the hospital for frequent falls due to weakness in his legs. Although Lowe was
physically weak, Brittan did not have any concerns about Lowe’s mental capabilities. Lowe had
an appointment with Brittan on August 18, 2017, due to “just not feeling good.” Brittan testified
that Lowe’s only medications at the time were Vicodin and Albuterol, which Brittan characterized
as “pretty darn good for an 89-year-old.” By September, Brittan had prescribed additional
medication to reduce fluid due to Lowe’s continued problems with edema. From approximately
September through his death in November, Lowe had congestive heart failure. Brittan testified that
congestive heart failure does not have much, if any, impact on someone’s mental acuity as long as
they are still oxygenating. Brittan had two appointments with Lowe in September and another two
in October for additional edema and swelling. October 13, 2017 was the last time Brittan saw Lowe
prior to his death.
Brittan testified that over the course of his treatment of Lowe, he did not observe Lowe to
have any mental issues and that he never had any concerns regarding Lowe’s mental capabilities.
Specifically, Brittan did not have any question regarding Lowe’s competency on or about June 3,
2015. Brittan testified that he never felt the need to perform a dementia screening on Lowe. Brittan
also testified that he never observed anything to make him believe that someone could get Lowe
to do anything that he did not want to do. Brittan did not believe that Lowe could be easily swayed
or that his will could be suppressed by another.
In her deposition, an individual who had been Lowe’s neighbor since 2004 testified about
Lowe’s health, mental abilities, and daily activities. She characterized their relationship as that of
“good neighbor[s]” who were “really close” and visited one another regularly. From May or June
2015 through 2017, the neighbor arrived at Lowe’s house at 7:30 a.m. on weekdays, and she
assisted him with personal tasks such as getting dressed, cleaning house, and doing laundry. She
also provided transportation for Lowe to his office and on errands both work-related and personal.
She occasionally took him to medical appointments. The neighbor provided assistance for Lowe
on the weekends as well.
With respect to Lowe’s mental status, the neighbor testified that since she had known him,
Lowe always retained his mental acuity and was very aware of the property he owned, his finances,
and details of past and present business transactions. During all of her contact with Lowe, the
neighbor never observed anything that caused her to believe that Lowe did not know who he was,
what he owned, or who other people were. She also testified about Lowe’s love for the North Platte
community and was not surprised that he left his estate to the Salvation Army, indicating that Lowe
had told her “quite a while before he passed” that he had a will and that the Salvation Army was a
beneficiary. According to the neighbor, Lowe never talked to her about a previous will drafted for
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him by his brother. The neighbor had never met Kuncl prior to Lowe’s passing, but she was aware
that Kuncl would “[s]ometimes” call Lowe on Thursdays and “talk for a very few minutes on the
phone to him,” although she was not aware of the content of those phone conversations.
Fugate’s affidavit about his contact with Lowe with respect to the will was admitted into
evidence and, in addition to information set forth above, reveals the following. On June 3, 2015,
Lowe presented himself at Fugate’s office, and he told Fugate he had come in to make a will.
Fugate discussed the purpose and effect of making a will with Lowe as well as what Lowe’s estate
included and who his living relatives were. Lowe made it clear to Fugate that he wanted the
Salvation Army to receive his estate because his only living descendants were those of his deceased
brother, specifically Kuncl, Beall, and Montgomery, as his brother “had well cared for [Kuncl].”
Additionally, Lowe’s desire was to benefit the people of Lincoln County, Nebraska, through the
services provided by the local Salvation Army. Lowe told Fugate what assets he had, including
various real estate properties he owned in Lincoln County, bank accounts in most banks in North
Platte, including Wells Fargo, and 8,000 shares of Union Pacific Railroad Company stock held at
Edward Jones. Based upon Fugate’s conversation with Lowe on June 3, 2015, Fugate drafted a
will that same day. After Fugate drafted the will, he discussed its terms with Lowe, who read the
will and indicated it met with his approval. Lowe did not have any questions or concerns about the
will that was drafted, and he then executed the 2015 will.
In his affidavit, Fugate attested to his belief that on June 3, 2015, Lowe had sufficient
testamentary capacity to execute the will. Fugate also stated he was not aware of any facts that
would give rise to anything that would constitute fraud, duress, undue influence, or coercion.
Fugate stated that he advised the Salvation Army of the bequest and devise in its favor after Lowe’s
funeral but that he never had any contact or communication with the Salvation Army concerning
Lowe’s will prior to or on June 3, 2015 or between that date and the funeral. The local Salvation
Army Captain was unaware of the bequest and devise prior to when Fugate communicated the
information to him.
When asked about her objection to Lowe’s 2015 will, Kuncl testified that she did not
understand why he would create a new will in 2015 when he supposedly had a prior will drafted
by her father. Kuncl testified to her belief that Lowe would have given some of his estate to other
entities, including his church and other community organizations with which he was involved. She
admitted, however, that she never talked to Lowe about his estate plans. And, she had never seen
the prior will and was not aware of its contents or whether there were any differences in the
dispositive provisions in the two wills. Kuncl did not know why Lowe made the Salvation Army
his sole beneficiary, simply describing it as “weird,” and she was unable to identify anything
concerning done by the Salvation Army in regards to Lowe’s making or executing the 2015 will.
Kuncl owns half of the family tree farm by virtue of her father’s passing, and she expressed concern
about Lowe having left his share to an entity outside of the family, describing the property as “very
meaningful to us.” She testified that the family spent a lot of time on the property, although she
acknowledged that she has not lived in Nebraska since 1964.
Since her parents’ deaths in 1996, Kuncl has only visited Nebraska approximately 15 to 17
times, each time for about a week, during which time she would stay at a hotel. Kuncl’s last
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in-person visit with Lowe was in approximately 2010. After that time, her contact with Lowe was
by telephone, and she testified that she spoke to him on most Fridays.
Kuncl claimed that Lowe’s will should not be probated because of his advanced age and
his physical and mental condition. Upon further inquiry about Lowe’s condition, Kuncl could not
specifically state when he had lymphoma, when he reached remission, or whether he had been
diagnosed with congestive heart failure. Kuncl agreed, however, that Lowe had been a “pretty
healthy guy” prior to being diagnosed with lymphoma. She also agreed that after going into
remission, Lowe regained weight and returned to “being a pretty healthy guy” and that he did not
take much medication, although this was not something he really discussed with her. Specifically,
she agreed that from 2005 to June 3, 2015, Lowe’s health was “[p]retty good” and that he was a
“[h]ealthy guy.” Kuncl testified that she had noticed Lowe repeating information in their phone
conversations and that he would sometimes tell her something that was “kind of off the wall” or
“strange.” She stated that it was “not often” that he would say something strange and that this
occurred “[m]ore toward the end,” although she was unable to clearly specify the exact time frame
for this behavior. Upon questioning, Kuncl was unable to identify any direct evidence that Lowe
was coerced or unduly influenced by anyone at the Salvation Army to make or execute the 2015
will. And, she acknowledged that she recognized Lowe’s signature on the will.
After her grandparents died in 1996, Beall visited Lowe in North Platte approximately once
a year until 1998 and then approximately 15 times between 1998 and 2017. Starting in 2004, she
would also speak to Lowe on the phone on most Tuesdays for between 2 and 20 minutes per call.
Beall testified that Lowe would sometimes repeat information or change topics in the middle of a
conversation, and she noted an instance in 2016 when he mistook her fiance for Montgomery,
although Lowe recognized this mistake during the course of the conversation. During that same
visit in 2016, Lowe directed Beall’s fiance to the wrong driveway (within 50 to 100 yards of the
correct driveway) when going to the family tree farm. According to Beall, however, between 1996
and her last conversation with him on October 24, 2017, Lowe never reached a point where he
forgot what he owned and or who his family was. Beall has never seen someone impose their will
on Lowe.
Beall testified about her discussion with Kuncl with respect to Lowe’s estate. She
wondered why Lowe did not leave something to “the senior center” or his church. Beall also
thought that Lowe would have also given something to the Veteran’s Memorial or one of the many
other community organizations with which he was involved. Like Kuncl, Beall expressed her
belief that the tree farm should stay in the family. She testified that sometime between 2000 and
2005, Lowe told her that he had a will in a safe at the office he shared with his brother, but she
indicated that they did not discuss the details of his estate plans. She did not know if a will was
actually located in that safe.
Beall did not speak with Lowe on June 3, 2015, and she did not know anything about his
mental or physical state on that date. She admitted that she did not have any evidence that Lowe
lacked the ability to execute a will on that date or any evidence relating to whether Lowe was
coerced or pressured to execute a will on that date. And, she did not know whether anybody on
behalf of the Salvation Army had any communications with Lowe directing that he execute the
will. As did her mother, she acknowledged that she recognized Lowe’s signature on the 2015 will.
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The district court received the deposition of James R. Nisley offered by Kuncl at the
summary judgment hearing. Nisley is a North Platte resident who practiced law for approximately
40 years and had known of Lowe since he was a child and “became more engaged with him” after
returning to North Platte to practice law as an adult. Between 2005 and 2015, Nisley had monthly
contact with Lowe at Elks meetings, and he visited Lowe in the nursing home prior to Lowe’s
death. With respect to Lowe’s mental status, Nisley testified, “I never questioned his competency.
. . . what I saw from [Lowe] is that . . . he understood. . . . I think if you’d asked him on the day he
died how much money he had, he’d probably tell you down to the next penny.” Nisley did wish,
however, that Lowe had entered the nursing home sooner.
As noted above, the district court did not receive the affidavit of Kuncl’s expert, Kimzey.
For purposes of our analysis, we note certain information from Kimzey’s affidavit. Kimzey is a
resident of North Platte and employed as a clinical psychologist licensed in Nebraska. Kimzey
stated that he had reviewed a substantial amount of information concerning the case but still had
more material to review. Based upon his “initial review” and “upon a reasonable certainty within
his profession,” Kimzey stated that Lowe “may have lacked testamentary capacity on the date of
the execution of his [2015 Will].” In support of this statement, Kimzey listed the following: “four
(4) welfare checks initiated on [Lowe] prior to the execution of his [2015 will]”; (2) Brittan’s
“medical notes prior to the execution of his [w]ill indicating that Lowe ‘obviously cannot care for
himself’”; the “incorrect assertion in [Lowe’s 2015 will] of his relatives, under . . . ‘Family
Information’”; an attached letter from Nisley to Kuncl dated June 25, 1997, which Kimzey
described as “questioning [Lowe’s] competency”; and Lowe’s responses in an attached deposition
from May 2013 taken by Fugate.
On April 8, 2020, the district court entered a detailed order, granting Fugate’s motion for
summary judgment. First, the court addressed Fugate’s objection to the receipt of Kimzey’s
affidavit, sustaining his objections and excluding the affidavit from evidence. The court observed
that Kuncl was under a continuing duty to supplement her answers to Fugate’s interrogatories.
Based on evidence adduced at the summary judgment hearing, the court concluded that
“[r]easonable inferences” could be drawn that Kuncl secured Kimzey in advance of the hearing
and that despite Fugate’s discovery requests, Kuncl failed to seasonably supplement her answers
and disclose Kimzey as her expert. The court also noted that Kuncl failed to file the required index
of evidence and did not provide Kimzey’s affidavit to Fugate until the day of the hearing. The
court excluded Kimzey’s affidavit from evidence as a sanction for Kuncl’s noncompliance.
Next, the district court addressed the issue of Lowe’s testamentary capacity. The court
found that Fugate established prima facie evidence of Lowe’s testamentary capacity because the
will was a self-proved will. The court then reviewed the rest of the evidence on this issue and
found no material issues of fact sufficient to question Lowe’s testamentary capacity. The court
observed that neither Kuncl nor Beall was able to provide the court with “any indication or
impression of [Lowe’s] state of mind on the day he executed his will” and that the admissible
evidence presented by Kuncl “consisted of factually unsupported theories, guesses, speculations
and/or conjectures.” In contrast, the court observed that Fugate presented a “plethora of credible
evidence” from multiple witnesses that Lowe possessed testamentary capacity at the time he
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executed his will. The court also noted that Kuncl and Beall did not dispute the validity of Lowe’s
signature on the will.
Finally, the district court found no material issues of fact sufficient to establish undue
influence. The court stated that both Kuncl and Beall “were patently unable to provide any material
facts” to show that Lowe was subject to undue influence. It specifically noted that Kuncl
“unequivocally testified that she doesn’t believe any member from Salvation Army influenced
[Lowe],” as well as Beall’s testimony that she had “no evidence that the Salvation Army or its
members had any communication with [Lowe] regarding the preparation and execution of his June
3, 2015 will.” In contrast, the court noted the evidence establishing that Lowe was a Salvation
Army board member and “an advocate for the Salvation Army in North Platte” and that he was
known to be a “community service oriented person.”
Kuncl subsequently filed a motion to alter or amend, addressing the district court’s
exclusion of Kimzey’s affidavit, which the court denied on May 12, 2020.
III. ASSIGNMENTS OF ERROR
Kuncl asserts, restated, that the district court erred in (1) finding no material issues of fact
with respect to Lowe’s testamentary capacity or the question of undue influence and (2) excluding
certain evidence as a discovery sanction.
IV. STANDARD OF REVIEW
An appellate court reviews the district court’s grant of summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Fuelberth v. Heartland Heating & Air Conditioning, 307 Neb.
1002, 951 N.W.2d 758 (2020). An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. Id.The determination of an appropriate discovery sanction rests within the discretion of the
trial court, and an appellate court will not disturb it absent an abuse of discretion. Charles Sargent
Irr. v. Pohlmeier, 27 Neb. App. 229, 929 N.W.2d 527 (2019). A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition. Grothen v. Grothen,
308 Neb. 28, 952 N.W.2d 650 (2020).
V. ANALYSIS
1. SUMMARY JUDGMENT
Kuncl argues that she produced evidence showing material issues of fact with respect to
Lowe’s testamentary capacity and the question of undue influence and that the district court erred
in finding otherwise. Summary judgment is proper when the pleadings and the evidence admitted
at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the moving party is entitled to judgment as
a matter of law. Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020). The party
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moving for summary judgment must make a prima facie case by producing enough evidence to
show that the movant is entitled to judgment if the evidence were uncontroverted at trial.
Dondlinger v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020). If the party moving for summary
judgment makes a prima facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment as a matter of law. Id.(a) Testamentary Capacity
In a contested case, the proponents of a will have the burden of establishing prima facie
proof of testamentary capacity. In re Estate of Clinger, 22 Neb. App. 692, 860 N.W.2d 198 (2015),
affirmed 292 Neb. 237, 872 N.W.2d 37. Prima facie proof of a testator’s testamentary capacity is
established by the introduction of a self-proved will. Id. Prima facie proof of a testator’s
testamentary capacity is rebuttable with competent evidence to the contrary. Id.The evidence is undisputed that Lowe’s 2015 will was self-proving. See Neb. Rev. Stat.
§ 30-2329 (Reissue 2016). Accordingly, the burden shifted to Kuncl to establish that Lowe lacked
testamentary capacity at the time he signed the will.
One possesses testamentary capacity if she understands the nature of her act in making a
will or a codicil thereto, knows the extent and character of her property, knows and understands
the proposed disposition of her property, and knows the natural objects of her bounty. In re Estate
of Clinger, supra. Testamentary capacity is tested by the state of the testator’s mind at the time the
will or codicil is executed. In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989).
In support of her arguments with respect to Lowe’s testamentary capacity, Kuncl relies on
the fact that the will identifies Montgomery as Lowe’s nephew and the fact that he mistook Beall’s
fiance for Montgomery on one occasion. She also cites evidence of his condition in 2004 when he
was suffering from lymphoma, certain evidence referenced in the excluded affidavit of Kimzey,
Lowe’s confusion on occasions when he was admitted to the hospital in 2017, and concerns
expressed by Kuncl, Beall, and Nisley about Lowe toward the end of his life. She also cites the
fact that Lowe directed Beall’s fiance to turn in at the wrong driveway when going to the tree farm
as evidence that Lowe did not know the character and extent of his property.
Some of the evidence relied on by Kuncl was not admitted into evidence. Other evidence,
such as the driveway incident and the mistaking the identity of Beall’s fiance occurred in 2016,
after the will was executed. The record shows that Lowe recognized his mistake about the fiance’s
identity during the same conversation. And, we disagree that directing someone to the wrong
driveway was evidence that Lowe did not know the character and extent of his own property.
Again, this incident occurred sometime after the will was executed. None of the evidence relied
on by Kuncl creates a material issue of fact with respect to Lowe’s testamentary capacity at the
time the will was executed in June 2015. Conclusions based on guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact for purposes of summary judgment.
Dondlinger v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020). The district court did not err in
finding no material issues of fact with respect to Lowe’s testamentary capacity.
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(b) Undue Influence
By statute, contestants of a will have the burden of establishing undue influence and carry
the ultimate burden of persuasion. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
See, also, Neb. Rev. Stat. § 30-2431 (Reissue 2016). To show undue influence, a will contestant
must prove the following elements by a preponderance of the evidence: (1) The testator was subject
to undue influence, (2) there was an opportunity to exercise such influence, (3) there was a
disposition to exercise such influence, and (4) the result was clearly the effect of such influence.
In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019). Undue influence sufficient to defeat
a will is manipulation that destroys the testator’s free agency and substitutes another’s purpose for
the testator’s. In re Estate of Clinger, supra.
Because undue influence is often difficult to prove with direct evidence, it may be
reasonably inferred from the facts and circumstances surrounding the actor: his or her life,
character, and mental condition. In re Estate of Barger, supra. Suspicious circumstances, when
coupled with proof of a confidential or fiduciary relationship, that have indicated an instance of
undue influence include (1) a vigorous campaign by a principal beneficiary’s family to maintain
intimate relations with the testator, (2) a lack of advice to the testator from an independent attorney,
(3) an elderly testator in weakened physical or mental condition, (4) lack of consideration for the
bequest, (5) a disposition that is unnatural or unjust, (6) the beneficiary’s participation in procuring
the will, and (7) domination of the testator by the beneficiary. Id.In support of her argument that Lowe was unduly influenced, Kuncl cites the fact that she
and Beall and Lowe spent a lot of time on the tree farm, which had been in the family for almost
100 years. She argues that this leads to an inference that Lowe “would have felt a duty to leave his
share of the family farm, of which [Kuncl] already owns half, to someone in his family.” Brief for
appellant at 20. She argues that leaving his share to the Salvation Army is “an unnatural provision,
inconsistent with his duty to members of his family.” Brief for appellant at 21. She also cites to
the friendship between Fugate and Lowe, which she argues could have allowed Fugate to exercise
undue influence on the part of the beneficiary. Finally, she cites Lowe’s age and his battle with
lymphoma.
Kuncl relies largely on speculation and conjecture and points to no actual evidence of
undue influence. The record shows that Lowe was heavily involved in community service and that
the Salvation Army was one of the organizations with which he was involved. Both Kuncl and
Beall agreed that they had no evidence of undue influence by the beneficiary, the Salvation Army.
The district court did not err in finding no material issues of fact with respect to the question of
undue influence.
2. DISCOVERY
Kuncl asserts that the district court erred in excluding certain evidence as a discovery
sanction, specifically, the affidavit of her expert, Kimzey. The court excluded the affidavit due to
Kuncl’s failure to supplement her discovery responses and identify Kimzey as an expert who
would be testifying pursuant to Neb. Ct. R. Disc. § 6-326 and her failure to file an index of evidence
as required by Neb. Ct. R. § 6-1526. The court did not abuse its discretion in doing so.
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The primary purpose of the discovery process is the exploration of all available and
properly discoverable information to narrow the fact issues in controversy so that a trial may be
an efficient and economical resolution of a dispute. Phillips v. Monroe Auto Equip. Co., 251 Neb.
585, 558 N.W.2d 799 (1997). The discovery process also provides an opportunity for pretrial
preparation so that a litigant may conduct an informed cross-examination. Paulk v. Central Lab.
Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001). Moreover, pretrial discovery enables litigants to
prepare for a trial without the element of an opponent’s tactical surprise, a circumstance which
might lead to a result based more on counsel’s legal maneuvering than on the merits of the case.
Id.Under § 6-326(e)(1)(B), there is an explicit duty to seasonably supplement a response to a
request for discovery directed toward identity of an expert witness expected to be called at trial,
the subject matter of expected testimony from such expert, and the substance of the expert witness’
expected testimony. Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987).
As a consequence of § 6-326(e) and within the purview of that rule, a litigant has the right to have
interrogatories answered and the continuing duty to supplement answers previously given in
response to an adversary’s interrogatories. See id. See, also, Eddy v. Builders Supply Co., 304 Neb.
804, 937 N.W.2d 198 (2020) (party has right to have interrogatories answered, and duty to
supplement answers previously given in response to adversary’s interrogatories is continuing
duty).
A party’s failure to answer properly served interrogatories or to seasonably supplement
discovery responses may be grounds for sanctions imposed under Neb. Ct. R. Disc. § 6-337. Eddy
v. Builders Supply Co., supra. To avoid sanctions under § 6-337, an interrogated party must either
answer or object to the interrogatories or move for a protective order relieving the interrogated
party from answering the interrogatories. Eddy v. Builders Supply Co., supra. Sanctions under
§ 6-337 exist not only to punish those whose conduct warrants a sanction but to deter those,
whether a litigant or counsel, who might be inclined or tempted to frustrate the discovery process
by their ignorance, neglect, indifference, arrogance, or, much worse, sharp practice adversely
affecting a fair determination of a litigant’s rights or liabilities. Eddy v. Builders Supply Co., supra.
An appropriate sanction under § 6-337 is determined in the factual context of a particular
case and is initially left to the discretion of the trial court, whose ruling on a request for sanction
or a sanction imposed will be upheld in the absence of an abuse of discretion. Eddy v. Builders
Supply Co., supra. In determining whether to exclude testimony of an expert witness called by a
party who has failed to comply with a request for discovery, the trial court should consider the
explanation, if any, for the party’s failure to respond, or respond properly, to a request for discovery
concerning an expert witness, importance of the expert witness’ testimony, surprise to the party
seeking preclusion of the expert’s testimony, needed time to prepare to meet the testimony from
the expert, and the possibility of a continuance.
Here, Fugate sent discovery requests to Kuncl in 2018, one of which asked her to identify
any experts she intended to call to testify. Kuncl responded that she had not yet made a final
determination with respect to any expert witness but that she would supplement her answer when
she had done so. Then in her April 2019 deposition, Kuncl was again asked to disclose the identity
of any expert witness she might call to testify regarding the issues of testamentary capacity and
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undue influence. Kuncl replied that no expert had been retained, but her counsel commented that
Kimzey had been consulted, although he had not reviewed any documents. Kuncl did not file any
supplement to her previous discovery responses. On January 2, 2020, Fugate filed the motion for
summary judgment and his index of supporting evidence; the hearing was scheduled for January
27. Kuncl still did not supplement her responses, and she did not file her own required index of
opposing evidence.
In analyzing this issue, the district court determined that a reasonable inference could be
drawn that Kuncl had in fact secured an expert in advance of the hearing whom she intended to
use at the hearing. It reasoned that her decision not to disclose this fact in advance of the hearing
precluded Fugate from inquiring and learning about the substance of Kimzey’s opinions. The court
observed that the discovery phase of this case involved written discovery and a series of
depositions over a considerable period of time, and which took place in different locations,
including Ohio. The court reviewed Nebraska case law concerning discovery sanctions, and then
it excluded Kimzey’s affidavit.
Kuncl argues that the district court should have considered her explanation made at the
hearing that Kimzey had only been recently retained due to his illness and that there was a lack of
surprise given that the things Kimzey relied on were known to the parties and disclosed during
discovery. She also asserts that the court should have considered a continuance. During the hearing
Kuncl’s counsel asked the court “either to continue the hearing” so that he could prepare an index
of evidence and resubmit the affidavit or that the court “can hear the hearing on the merits today,
and allow me some time to respond and reply” to the summary judgment motion.” He also argued
that they had only retained Kimzey the week prior and were under no duty to disclose before that
as they were only consulting with him.
Kuncl’s attorney did not clearly request a continuance or insist on a ruling; nor has Kuncl
assigned any error to any implicit denial of the request. There was no explanation given for why
discovery was not supplemented at the point when Kimzey was retained as an expert, which clearly
occurred before the day of the hearing. The district court did not abuse its discretion in excluding
the affidavit.
VI. CONCLUSION
The district court did not err in granting summary judgment in Fugate’s favor. The court
did not abuse its discretion in excluding Kimzey’s affidavit as a discovery sanction.
AFFIRMED.
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