In re Estate of Barger , 303 Neb. 817 ( 2019 )

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www.nebraska.gov/apps-courts-epub/
10/11/2019 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
In re Estate of Joan Jane Barger, deceased.
Elizabeth Siegfried and Brendon Barger, appellants and
cross-appellees, v. Steven Barger and Shane Barger,
appellees and cross-appellants.
___ N.W.2d ___
Filed August 2, 2019. No. S-18-711.
1. Decedents’ Estates: Judgments: Appeal and Error. In the absence of
an equity question, an appellate court, reviewing probate matters, exam-
ines for error appearing on the record made in the county court. When
reviewing a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
2. Decedents’ Estates: Wills: Trusts: Judgments: Appeal and Error.
The interpretation of the words in a will or a trust presents a question of
law. When reviewing questions of law in a probate matter, an appellate
court reaches a conclusion independent of the determination reached by
the court below.
3. Decedents’ Estates: Appeal and Error. The probate court’s factual
findings have the effect of a verdict and will not be set aside unless
clearly erroneous.
4. Decedents’ Estates: Wills. A proceeding to contest a will under a no
contest clause includes actions asserting grounds leading to the invalid-
ity of the will or any of its provisions.
5. ____: ____. Generally, courts have held the following types of claims
constitute will contests: lack of testamentary capacity, fraud, undue
influence, improper execution, forgery, or a subsequent revocation of the
will by a later document.
6. ____: ____. A no contest clause in a will may be violated, not only by
a direct contest or challenge instituted by the beneficiary, but also by
voluntary conduct of the beneficiary that amounts to an indirect contest
or challenge.
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IN RE ESTATE OF BARGER
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7. ____: ____. A no contest clause may be violated when the person
restrained by the clause voluntarily instigates or aids another person in
his or her attempt to contest the will.
8. Decedents’ Estates: Wills: Probable Cause. A no contest clause
in a will is unenforceable if probable cause exists for instituting
proceedings.
9. Decedents’ Estates: Wills: Probable Cause: Evidence. Probable cause
exists if, at the time of instituting the will contest proceeding, there is
evidence that would lead a reasonable person, properly informed and
advised, to conclude that there is a substantial likelihood that the chal-
lenge would be successful.
10. Actions: Probable Cause: Words and Phrases. Probable cause in the
context of a civil action for malicious prosecution is whether a person in
the defendant’s position had reasonable grounds to suspect, based on the
facts known or reasonably believed by the defendant at the time, that the
crime prosecuted had been committed.
11. Probable Cause. Probable cause does not depend upon mere belief,
however sincerely entertained, and must have basis in fact.
12. Wills: Probable Cause: Attorney and Client. While a petitioner’s
reliance on the advice of independent legal counsel sought in good faith
after a full disclosure of the facts is a factor that bears on the existence
of probable cause, the mere fact that a person mounting a challenge to
a will was represented by counsel is not controlling.
13. Wills: Undue Influence: Proof. To show undue influence, a will con-
testant must prove the following elements by a preponderance of the
evidence: (1) The testator was subject to undue influence, (2) there was
an opportunity to exercise such influence, (3) there was a disposition
to exercise such influence, and (4) the result was clearly the effect of
such influence.
14. Undue Influence: Proof. Because undue influence is often difficult to
prove with direct evidence, it may be reasonably inferred from the facts
and circumstances surrounding the actor: his or her life, character, and
mental condition.
15. ____: ____. Suspicious circumstances, when coupled with proof of a
confidential or fiduciary relationship, that have indicated an instance of
undue influence include (1) a vigorous campaign by a principal benefi-
ciary’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 consider-
ation 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.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
16. Trusts. A trust terminates at the time at which it becomes the duty of the
trustee to wind up administration of the trust, and not at the time when
that winding up period is actually accomplished.
17. ____. After a trust has been terminated, a trustee must expeditiously
exercise the powers appropriate to wind up the administration of the
trust and distribute the trust property to the persons entitled to it.
18. Wills: Death. The provisions of a will take effect and become operative
at the time of the death of the testator.
19. ____: ____. A will always speaks from the date of the testator’s death,
because the testator could always modify the distributions prior to his or
her death.
20. ____: ____. A will is, according to law, of an ambulatory character, and
no person can have any rights in it until the testator is dead.
21. Wills: Intent. The cardinal rule in construing a will is to ascertain and
effectuate the testator’s intent if such intent is not contrary to the law.
22. ____: ____. A court must examine a will in its entirety, consider and
liberally interpret every provision in the will, employ the generally
accepted literal and grammatical meanings of words used in the will,
and assume that the testator understood the words used in the will.
23. Wills: Words and Phrases. Ambiguity exists in a will when a word,
phrase, or provision in the instrument has, or is susceptible of, at least
two reasonable interpretations or meanings.
24. Parol Evidence: Wills: Intent. Parol evidence is inadmissible to deter-
mine the intent of a testator as expressed in his or her will, unless there
is a latent ambiguity therein which makes his or her intention obscure
or uncertain.
25. Decedents’ Estates: Wills. A latent ambiguity exists when the testa-
tor’s words are susceptible of more than one meaning, and the uncer-
tainty arises not upon the words of the will as looked at in themselves,
but upon those words when applied to the object or subject which
they describe.
26. Wills: Evidence. Extrinsic evidence is admissible both to disclose and
to remove latent ambiguity of a will.
Appeal from the County Court for Red Willow County:
A nne M. Paine, Judge. Affirmed.
Cody E. Siegfried, of Goodwin Siegfried, L.L.P., for
appellants.
Allen L. Fugate and Patrick J. Nelson for appellees.
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303 Nebraska R eports
IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Elizabeth Siegfried and Brendon Barger (Appellants) appeal
the Red Willow County Court’s order on Elizabeth’s petition
for construction of Joan Jane Barger’s will and challenge the
court’s finding that Joan’s intent was to distribute her property
designated as property held by a trust even though the trust
had been terminated.
Steven Barger and Shane Barger (Appellees) cross-appeal
the court’s order on their petitions for a determination that
William Barger, Elizabeth, Brendon, and Joseph Barger are
not entitled to take under Joan’s will due to their violation of
a no contest clause contained therein. Appellees also challenge
on cross-appeal the court’s determination that the trust was
terminated prior to Joan’s death. For the reasons stated herein,
we affirm.
I. BACKGROUND
Joan died testate in Red Willow County in January 2012,
leaving a “Last Will and Testament” dated March 13, 2006.
Her 2006 will set forth Joan’s intent “to dispose of all the
property which I own or in which I have an interest at the time
of my death.”
Related to the distribution of property, article I of the will
provided that Joan was a widow with five children including:
William, Elizabeth, Joseph, Brendon, and Steven. Under article
I, the will described William was not a beneficiary under the
will because, in part, “serious unhappy differences” had arisen
in recent years between him, Joan, and the rest of the family
which “caused a total break in relations” leading to William
and his family “no longer recogniz[ing] any family connec-
tion” with Joan. Article I also noted Steven was given addi-
tional value in the will explaining:
(1) he has been the one working closely with [Joan] for
many years now to save the farm from loss to creditors
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
and taxes, and has contributed a great deal of value in
labor, management, equipment, and supplies, for which
he has not been compensated; and (2) [Joan] believe[d] he
is the only one of [her] children who is likely to expend
every effort to keep the farm in [her] family, rather than
selling it.
Likewise, article I explained Joan was also giving her
grandson, Shane . . . , alone among [her] grandchildren,
a tract of ground, also because he has always been so
cooperative in doing things [Joan] asked of him, and
working hard without pay to save the farm from loss to
creditors, and also because [Joan] believe[d] he can be
especially trusted to keep the ground in the family, rather
than sell it.
Article III was titled “Disposition of Property” and provided
specific bequests to specific children. Article III also contained
a residual clause which stated:
3.04 I give, devise, and bequeath all my property
which I own or in which I have an interest at the time
of my death, which is not disposed of in the preceding
Paragraphs 3.01 through 3.03, and which is not property
of the Barger Family Irrevocable Trust, to four of my five
children, as follows, to-wit: Brendon . . . , Jo[seph] . . . ,
Steve[n] . . . , and [Elizab]eth . . . , in shares which are
equal in value to each other, considering only the property
given under this paragraph 3.04.
Article IV, titled “Exercise of Power of Appointment,”
explained the distribution of trust property under the
“Trust Agreement of the Barger Family Irrevocable Trust.”
Specifically, article IV provided:
4.01 I hereby exercise the power of appointment
granted to me in section 20.04 of the Trust Agreement of
the Barger Family Irrevocable Trust, dated January 10,
1991, by giving the TW35 Ford tractor with duals, four
hydraulics, and MFWA and performance monitor, to my
son Steve[n] . . . , who originally owned the tractor, and
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IN RE ESTATE OF BARGER
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allowed it to be conveyed to the Barger Family Irrevocable
Trust without receipt of consideration to him.
4.02 I hereby exercise the power of appointment
granted to me in section 20.04 of the Trust Agreement
of the Barger Family Irrevocable Trust, dated January
10, 1991, by directing that all stock owned by the Trust
in R & J Barger Farms, Inc., and Five B Farms, Inc., be
given to Steve[n] . . . , in trust, however, under the fol-
lowing direction and instruction: Steve[n] . . . shall trans-
fer all assets in the corporations, and all other assets in
the Trust, as set forth below in the following provisions
of this Article IV, and shall then dissolve the said corpo-
rations. In the event Steve[n] . . . has predeceased me,
or is not able or willing to serve as trustee, I appoint the
following successors, in the following order of priority, to
receive all said stock, in trust, under the same direction:
(1) [Elizab]eth . . . , (2) Jo[seph] . . . , (3) Shane . . . , and
(4) Brendon . . . .
A) All the real estate to the following persons, subject
to any encumbrances against such lands:
....
i) To Steve[n] . . . , all of the land owned by Five B
Farms, Inc., in the East Half (E1/2) of Section Six (6);
the E1/2 and SW1/4 of Section 7, and the N1/2NE1/4
of Section 18; all in T4N, R30W, Red Willow County,
Nebraska;
ii) To Steve[n] . . . , the Northeast Quarter (NE1/4) of
Section 27, T4N, R31W, in Hitchcock County, Nebraska,
owned by R & J Barger Farms, Inc.
iii) To Shane . . . , the Northeast Quarter (NE1/4) of
Section 26, T4N, R31W, in Hitchcock County, Nebraska,
owned, half by R & J Barger Farms, Inc., and half by
the Trust. If Shane predeceases me, this gift shall go to
Steve[n] . . . .
iv) To Jo[seph] . . . , a one-third share, to [Elizab]eth
. . . , a one-third share, and to Brendon . . . a one-third
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
share, as tenants in common, of what is called “The
Ponderosa”, (legally described as the N1/2 of Section 24,
T4N, R30W, in Red Willow County, Nebraska). However,
this gift is subject to an option to purchase by Steve[n]
. . . , exercisable within sixty (60) days after the date of
my death, by written notice from Steve[n] to any one of
the said beneficiaries of this provision, and on the fol-
lowing terms: $300,000.00 purchase price, 8% interest,
amortized over 20 years, with each annual payment due
on or before December 20 of each year of the payment
period. Each annual payment shall be paid, first to annual
payments due on any liens existing against this land as of
the date the purchase option is exercised, and the balance
in equal shares to Jo[seph], [Elizab]eth, and Brendon.
v) If any of my children: Steve[n], Brendon, Jo[seph],
or [Elizab]eth, predeceases me, his or her share of my
estate shall go to his or her issue, by representation.
vi) There is currently a mortgage and rent assign-
ment against ground given in the foregoing provisions to
Steve[n] . . . and Shane . . . , which may result in income
from ground given to Steve[n] or Shane being paid to a
Farm Service Agency lien on “The Ponderosa”, described
above in paragraph iv. If this happens after my death,
the beneficiaries of the gift of “The Ponderosa” shall
promptly repay such amount to Steve[n] or Shane, as the
case may be, and such reimbursement shall constitute a
lien against the title of Brendon, Jo[seph], and [Elizab]eth
to “The Ponderosa” in favor of Steve[n] or Shane, as the
case may be.
B) A 1993 Grand Prix Pontiac automobile to be trans-
ferred to Peter Barger, son of Jo[seph] and Kathy Barger.
C) All farm and irrigation equipment, and all cattle or
interest in cattle, shall go to Steve[n] . . . .
D) All the remainder of property to four of my five
children, as follows, to-wit: Brendon . . . , Jo[seph] . . . ,
Steve[n] . . . , and [Elizab]eth . . . , in shares which are
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
equal in value to each other, considering only the shares
given under this particular paragraph. To the extent neces-
sary to avoid disputes or facilitate distribution in shares
of equal value of such property, the trustee shall auc-
tion such property to the beneficiaries named in this
[p]aragraph, and shall then distribute the net funds as
directed herein.
Article V contained a will contest provision stating:
I hereby direct that, in the event any of the benefici­
aries of this Will files any proceeding to contest this
Will or any provision herein (not including a proceeding
to construe or interpret the Will), such beneficiary shall
thereafter take nothing from my estate, and any provision
favoring such beneficiary shall utterly lapse.
1. Petition to Contest Will
In February 2012, Steven filed an application for informal
probate of the 2006 will and for his appointment as personal
representative of the estate. In March 2012, William filed
a petition to contest the will, alleging a lack of testamen-
tary capacity and undue influence. William also asked the
court to remove Steven as personal representative and appoint
Elizabeth in Steven’s place. Steven and his son, Shane, filed
answers denying William’s allegations and asking the court to
dismiss the petition. During the pendency of that action, Steven
was removed as personal representative due to failure to pro-
vide legal documents, provide an accounting, provide corporate
books, pay taxes, and comply with court orders compelling dis-
covery. After his removal, a successor personal representative
was appointed by stipulation of the parties, which was accepted
by the court.
Following a trial, the court determined Joan had testamen-
tary capacity to execute the 2006 will insofar as there was no
evidence to suggest she did not understand her act in making
the will, the extent or character of her property, the proposed
distribution of that property, or the natural objects of her
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
bounty. The court noted that there was some evidence produced
to support a finding of a confidential relationship between
Steven and Joan, but that given Joan’s mental clarity and her
specifically stated reasons for making the will provisions, any
presumption of undue influence was negated. The court con-
cluded that given all of the evidence, the court could not find
any influence exerted in the case “rose to the level of overcom-
ing the free agency of [Joan] or substituting another person’s
will for that of Joan[].” Thereafter, the court ordered the 2006
will admitted to probate.
Elizabeth filed a motion for new trial which was overruled,
and thereafter, William, Elizabeth, and Brendon filed a notice
of appeal. The Nebraska Court of Appeals affirmed the county
court’s judgment in a memorandum opinion filed on May 24,
2016, in case No. A-15-518.
2. Petition for Construction of Will
On August 26, 2016, Elizabeth filed a petition for construc-
tion of the 2006 will. The petition alleged that the trust under
article IV was terminated prior to Joan’s death and that any
trust property was transferred to Joan individually. As such,
the petition alleged, this property must be distributed under
the residual clause of article III to Elizabeth, Joseph, Brendon,
and Steven in equal shares. Appellees, in turn, denied the alle-
gations of Elizabeth’s petition and filed petitions to exclude
Elizabeth, Joseph, and Brendon from taking due to their par-
ticipation in the will contest proceeding. A hearing was held on
Elizabeth, Shane, and Steven’s petition.
(a) Termination of Trust
Evidence adduced at the hearing established that the trust
was created in 1991 by Joan and her husband, Robert Barger.
The trust appointed William, Joseph, and Steven as trustees
and provided that upon the death of the survivor of Robert and
Joan, the trust property was to be distributed pursuant to the
last will of the survivor. Robert died in 1999, and Joan contin-
ued to reside on the farm.
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Nebraska Supreme Court A dvance Sheets
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
In July 2006, during an earlier action involving a chal-
lenge to the trust, Joan filed a motion to dismiss, explaining
that Joseph and Steven, as a majority of the trustees, made
a determination to terminate the trust and distribute the trust
property to the sole income beneficiary, Joan. In the motion,
Joan specifically stated that she was “therefore the sole and
exclusive beneficiary entitled to distribution of the entire trust
estate, there are no other beneficiaries, including contingent
beneficiaries, and [that she] consented to the determination
of said trustees to terminate the trust and make distribu-
tion.” Attached to the motion was a document titled “Barger
Family Irrevocable Trust Resolution of Trustees to Terminate
Trust” that was signed by Joseph and Steven. Also attached
was a document titled “Release Agreement” signed by Joan
ratifying and approving the actions taken by the trustees and
releasing them from any liability in their capacity as trustees.
Furthermore, Joan stated in this Release Agreement: “I affirm
that I have already exercised my power of appointment in my
Last Will and Testament, and that William Barger shall retain
no beneficial interest in my estate.”
Arlan Wine, Joan’s attorney who drafted the March 2006
will and represented her during this action, testified that Joan
sought to terminate the trust because she was satisfied that
there was no malfeasance by Joseph and Steven as trustees
and that terminating the trust would allow the farming busi-
ness to move forward free from litigation and family dis-
putes. In August, the court granted the motion finding the
trust had been “effectively terminated,” and this finding was
summarily affirmed December 27, 2007, on appeal in case
No. A-06-1280.
Wine testified he believed the only property held by the trust
at the time of its termination was the stock certificates of two
corporations used by Joan for the family farming operation.
Wine explained that after the trust’s termination, it was up to
the trustees to convey the property out of the trust. Steven tes-
tified that the stock certificates were never transferred to Joan
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IN RE ESTATE OF BARGER
Cite as 303 Neb. 817
and that the corporate books were unavailable because they had
disappeared from Joan’s safe at the house. Joseph also testified
that he never took any action to transfer the stock certificates
in his role as a trustee. However, an original inventory which
Steven filed before being removed as personal representative
listed the stock as having been transferred to Joan. Steven
explained that while at that time, he thought the stock had been
transferred, he presently believes no such transfer occurred.
(b) Participation in Will Contest
While evidence was received that William was the sole
party who signed and filed the petition, Elizabeth, Joseph,
and Brendon all paid or caused to be paid the lawyer repre-
senting William in the contest, Larry Baumann, or his law
firm. The parties admitted that in March 2012, Joseph paid
$2,500, William paid $2,500, a restaurant owned by Elizabeth’s
son paid $2,500 at her request, and a corporation owned by
Brendon paid $2,500 at Brendon’s direction. Further payments
were made from these parties to Baumann as well. Elizabeth,
Joseph, and Brendon all testified that they paid or caused such
payments to Baumann to support William’s case. There was
also evidence presented that William, Elizabeth, Joseph, and
Brendon met with Baumann prior to William’s filing of the
petition, and the parties admitted to testifying in opposition to
the will at the trial.
(c) Probable Cause to File Will Contest
After Joan’s death, the parties attended a reading of the
2006 will. William and Brendon testified that after the reading,
they met with Wine, who informed them that he had written
four additional wills for Joan, including two in 2000, one in
2001, and one in 2003. William and Brendon provided these
additional wills to Elizabeth and Joseph. Testimony was also
received that there was an earlier sixth will written at the same
time as the trust.
Wine testified that at the time he drafted the 2006 will, he
was also representing Steven in an ongoing bankruptcy action
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and had previously represented other members of the Barger
family. Wine further explained that Joan came to his office
without an appointment to discuss the new will and that Steven
was present with her. Wine testified they discussed, drafted,
and signed the will that day. Wine opined that Joan’s primary
consideration was keeping the farm in the family and that she
was fearful someone would outbid Steven if the land had to
be sold. Joan consulted with Steven about what it would take
to make sure the farm was operable and that the provisions of
her will would allow it to be operated successfully and kept
in the family. Wine testified that he drafted the will according
to Joan’s instructions and that he brought up the possibility of
using the will contest clause because he anticipated the will
was likely to be challenged.
Wine testified that he was uncomfortable writing the 2006
will and that he tried to get Joan to have someone else
draft it. He explained that he was reluctant to write this last
will because
I knew that there had been a lot of stress in the family.
I had been involved, you know, with different members
of the family. And I thought that it was likely to be
contested. I really thought that they should have a com-
pletely independent outside counsel that had no connec-
tion with anybody.
Wine testified he observed Joan to be a little more tired,
weaker, and less vivacious than she had been at the drafting
of the previous wills. He also testified that he thought it was
unusual Joan had drafted four wills in such a short amount of
time. William and Brendon testified that Wine talked to them
about these concerns when they met with him after Joan’s
death. Brendon also testified that Wine told them Steven was
present at every meeting where Joan changed her will.
Evidence was received that Joan relied heavily on Steven,
particularly on matters relating to the operation of the farm,
and that Steven was at the farm frequently. Elizabeth testi-
fied that between Robert’s and Joan’s deaths, Steven had no
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employment other than helping Joan at the farm. Elizabeth
opined that Joan would always look to Steven to see what he
thought and never make an independent decision. Elizabeth
explained Steven “was basically managing everything on her
day-to-day.” Brendon testified that he observed Steven control-
ling and bossing Joan by cussing and swearing at her about
things with which he disagreed. Brendon’s son testified that he
had observed Steven keeping close tabs on Joan and appeared
to not want anyone else at the farm.
Joan had a history of calling Elizabeth, Joseph, and Brendon
to assist with farm and money issues for herself and for Steven.
Joseph testified that on one such occasion, Joan called him
repeatedly to give Steven a loan for some land, which loan
Steven had not paid back. Brendon testified that he would
“drill wheat,” plant beans and corn, and help with labor for the
farm because Joan asked. Brendon also sold some iron from
Joan’s property to get her some money. On one specific occa-
sion, Brendon moved “pivots” at Joan’s request with other men
and not Steven, but Joan paid Steven $3,500 for doing it while
not paying Brendon or the others performing the work.
Elizabeth testified that she and Steven held Joan’s medi-
cal power of attorney. However, Elizabeth testified that she
was the one who took Joan to medical appointments and that
Steven only came along to one appointment in 2009 to test
Joan for dementia because, Elizabeth opined, Steven was nerv­
ous. Elizabeth testified that Joan had multiple health issues
between Robert’s and Joan’s deaths, including back surgery,
osteoporosis, a total mastectomy, breast cancer, oncology, radi-
ation, memory issues, congestive heart failure, osteoarthritis,
cataracts, hearing aids, chest pains, and problems swallow-
ing. Prior to the 2009 dementia-related medical appointment,
Elizabeth observed that Joan would repeat herself, forget whom
she told what, write everything down, forget how to get home,
have issues driving, and forget where Elizabeth lived. Joseph
also testified that Joan would get confused, particularly in her
understanding of her financial situation.
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Elizabeth, Joseph, and Brendon testified that Joan’s living
conditions were poor, including that, at various times, her tele-
phone service was shut off, her electricity was shut off, there
was little or spoiled food in the house, she was driving a dam-
aged vehicle, wildlife got into her house, and various appli-
ances and household items were damaged. Elizabeth testified
she would provide Joan food at various times but recalled one
occasion where she dropped off peaches and Joan gave them
all to Steven because she said he needed them. Joseph also pro-
vided food, helped clean, and helped to fix some of the other
household issues. Brendon testified that he, at times, provided
Joan a car, money, and food.
In 2010, Joan’s children met with her to discuss the poor
living conditions and determine why she did not have more
income given the substantial farming property. At this meeting,
Steven read the parties the 2006 will, which was the first time
Elizabeth and Joseph had heard about it. The meeting resulted
in Steven’s threatening William and warning that he would
leave Joan and never come back. Joseph testified that he had
several of these family meetings with Joan after Robert’s death
and prior to the 2010 meeting.
Elizabeth testified that she had discussed various family
heirlooms with Joan which Joan indicated Elizabeth could have
after her death. However, Elizabeth testified that Steven took
these items prior to Joan’s death.
William, Elizabeth, Joseph, and Brendon explained their
reasons for supporting the undue influence claim. All of them
testified that they had been unaware there had been six dif-
ferent wills and that the wills showed an increasing partial-
ity to Steven. Elizabeth believed the wills were a product of
Steven’s undue influence over Joan because each will was
successively more favorable to Steven, Wine had been uncom-
fortable writing the will, a no contest clause was included,
Elizabeth observed that Joan’s life in her later years revolved
around pleasing Steven, and the will disfavored William even
though Elizabeth observed that Joan and William got along
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well as long as they were not discussing farm business or
Steven. Joseph testified that he believed Steven had written
the will, and, similarly, William testified that the will looked
like something Steven had written. William also testified that
the changes in the will seemed to correlate with incidents
involving him and Steven. Brendon testified that he supported
the petition because he thought William was unfairly left out
of the will. Brendon explained that he believed the will was
unduly influenced by Steven because it was unfairly weighted
toward Steven given his and his siblings’ contributions on the
farm and house, the $300,000 option price for the land was
less than the price of $1,000,000 that Joan had previously been
offered, and William was disinherited. William, Elizabeth,
Joseph, and Brendon testified they had talked about these
observations and concerns prior to William’s filing of the peti-
tion to contest the will.
(d) Disposition
The county court issued an order on the petitions. First,
the court found the trust was terminated. However, the court
declined to determine whether the trust was “‘wound up’” and
could still contain property. The court instead determined that
Joan’s intent was to distribute the property listed in the will’s
article IV according to that provision regardless of whether the
property had been transferred to Joan.
As to Appellees’ petitions, the court first found that even
though William was the sole named party to the will contest,
Elizabeth, Joseph, and Brendon also supported the filing of the
petition to contest the will. However, the court determined that
William, Elizabeth, Joseph, and Brendon had probable cause
to bring the petition and were therefore not prohibited from
taking under article V of the will.
II. ASSIGNMENTS OF ERROR
Appellants assign, restated and consolidated, that the
county court erred by (1) considering extrinsic evidence after
failing to determine whether the will was ambiguous and
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(2) determining the listed trust property should be distributed
as outlined in article IV of the will after finding the trust was
terminated prior to Joan’s death regardless of whether the
property had reverted back to Joan personally.
Appellees assign on cross-appeal, restated, that the county
court erred by (1) determining the trust was terminated prior
to Joan’s death and (2) failing to find Elizabeth, Joseph, and
Brendon are prohibited from taking under article V of the will
due to the earlier will contest.
III. STANDARD OF REVIEW
[1] In the absence of an equity question, an appellate
court, reviewing probate matters, examines for error appear-
ing on the record made in the county court.1 When reviewing
a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.2
[2] The interpretation of the words in a will or a trust pre­
sents a question of law.3 When reviewing questions of law in
a probate matter, an appellate court reaches a conclusion inde-
pendent of the determination reached by the court below.4
[3] The probate court’s factual findings have the effect of a
verdict and will not be set aside unless clearly erroneous.5
IV. ANALYSIS
1. A pplication of A rticle V’s
No Contest Provision
We first address Appellees’ assignment that Elizabeth,
Joseph, and Brendon are prohibited from taking under Joan’s
1
In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536 (2017).
2
Id.
3
Id.
4
Id.
5
Id.
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will due to the application of article V. Appellees argue article
V applies because, even though these parties were not listed
in the petition, they were active parties contesting the will in
that action.
Article V provides, in relevant part, “[I]n the event any of
the beneficiaries of this Will files any proceeding to contest
this Will or any provision herein . . . , such beneficiary shall
thereafter take nothing from [Joan’s] estate.”
[4,5] A proceeding to contest a will under a no contest clause
includes actions asserting grounds leading to the invalidity of
the will or any of its provisions.6 Generally, courts have held
the following types of claims constitute will contests: “‘lack
of testamentary capacity, fraud, undue influence, improper
execution, forgery, or a subsequent revocation of the will by
a later document.’”7 As such, the 2012 action was a proceed-
ing under article V due to its claims alleging Joan’s will was
invalid because of Steven’s undue influence and Joan’s lacking
testamentary capacity.
[6,7] A no contest clause may be violated, not only by a
direct contest or challenge instituted by the beneficiary, but
also by voluntary conduct of the beneficiary that amounts to
an indirect contest or challenge.8 Stated another way, a no con-
test clause may be violated when the person restrained by the
clause voluntarily instigates or aids another person in his or her
attempt to contest the will.9
Elizabeth, Joseph, and Brendon aided and participated in the
initiation and litigation of the will contest. They testified they
had meetings with William and Baumann prior to the filing,
6
See Martin v. Ullsperger, 284 Neb. 526, 822 N.W.2d 382 (2012). See, also,
2 Restatement (Third) of Property: Wills and Other Donative Transfers
§ 8.5, comment a (2003).
7
Martin, supra note 6, 284 Neb. at 530, 822 N.W.2d at 384. See, also, 2
Restatement (Third) of Property, supra note 6.
8
See 2 Restatement (Third) of Property, supra note 6, § 8.5, comment e.
9
See id.
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paid Baumann to initiate and execute the challenge, testified
in opposition to the 2006 will at the will contest proceeding,
and participated in investigating the grounds for filing the
petition. Furthermore, Elizabeth filed a motion for a new trial
and Appellants filed an appeal of the trial court’s judgment on
the 2012 petition. As a result, the county court concluded that
Elizabeth, Joseph, and Brendon also supported the filing of the
petition to contest the will. Assuming without deciding this
conclusion was correct, we must decide whether there was suf-
ficient probable cause to instigate the proceeding.
[8-12] A no contest clause is unenforceable if probable cause
exists for instituting proceedings.10 The Restatement (Third) of
Property11 explains that such probable cause exists if, at the
time of instituting the will contest proceeding, there is evidence
that would lead a reasonable person, properly informed and
advised, to conclude that there is a substantial likelihood that
the challenge would be successful. Similarly, we have defined
the question of probable cause in the context of a civil action
for malicious prosecution as whether a person in the defend­
ant’s position had reasonable grounds to suspect, based on the
facts known or reasonably believed by the defendant at the
time, that the crime prosecuted had been committed.12
[11,12] Probable cause does not depend upon mere belief,
however sincerely entertained, and must have basis in fact.13
Additionally, while a petitioner’s reliance on the advice of
independent legal counsel sought in good faith after a full
disclosure of the facts is a factor that bears on the existence
of probable cause, the mere fact that the person mounting the
challenge was represented by counsel is not controlling.14
10
Neb. Rev. Stat. § 30-24,103 (Reissue 2016).
11
2 Restatement (Third) of Property, supra note 6, § 8.5, comment c.
12
McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014).
13
See, id.; 2 Restatement (Third) of Property, supra note 6, § 8.5, com­
ment c.
14
See 2 Restatement (Third) of Property, supra note 6, § 8.5, comment c.
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[13-15] Here, there was a sufficient factual basis to sup-
port the county court’s finding of probable cause. 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.15 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.16 Suspicious circumstances,
when coupled with proof of a confidential or fiduciary rela-
tionship, 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 condi-
tion, (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.17
Prior to instigating the will contest in the instant case,
Elizabeth, Joseph, and Brendon believed and were aware
of corroborating evidence that Steven was in a position of
influence over Joan in her daily life and farming operations;
Steven attended the execution of the 2006 will; Joan was
in a deteriorating physical and mental condition; Joan had
executed six wills in a relatively short amount of time; Wine
represented Steven when he wrote Joan’s will; Joan’s liv-
ing conditions were poor despite her land holdings; and the
language of the will was inconsistent with their interactions
with Joan.
15
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
16
Id.
17
See In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
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Specifically, the parties testified, and Wine confirmed, that
they had been provided Joan’s five other wills after Joan’s death
and prior to the filing of the will contest. The parties explained
that each will got progressively more weighted in Steven’s
favor and against William. Such changes were in contrast to an
earlier will executed at the time of the trust which purportedly
divided the estate in equal shares among the children. William,
Elizabeth, Joseph, and Brendon testified that they believed
the 2006 will was inaccurate because of the lopsided division,
the language of the will, the no contest clause, and a purchase
option for Steven for specific land which was priced at well
under what Joan had previously been offered.
Testimony was received that the siblings were first made
aware of the multiple wills when Wine met with William and
Brendon shortly after Joan’s death. William and Brendon tes-
tified that Wine talked to them about various aspects of the
execution of the 2006 will. It was discovered that Steven was
with Joan when she came to meet Wine without an appoint-
ment to execute the 2006 will and that they discussed, drafted,
and signed the will that day. Wine explained that Joan relied
on answers Steven provided on farming operations and opined
that Joan seemed a little more tired, weaker, and less vivacious
than she had been at the drafting of the previous wills. Wine
expressed that he was uncomfortable and reluctant to write the
last will and that he thought it was unusual Joan had drafted
four wills in such a short amount of time. Wine had also been
representing Steven in a bankruptcy at the time of the execu-
tion of the 2006 will.
The siblings testified Joan relied heavily on Steven for her
daily life and particularly on matters relating to the farm opera-
tion. Steven was at the farm frequently, and Elizabeth testified
that he had no other employment between Robert’s and Joan’s
deaths and that Joan made no independent decision without
Steven. The parties observed Steven controlling and bossing
Joan, and Brendon’s son testified he discussed his observations
of Steven’s behavior with Brendon.
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Elizabeth testified that Joan had multiple health issues
between Robert’s and Joan’s deaths. These health issues had
Joan in a deteriorating physical state and included observed
memory issues.
Testimony was received that Joan’s living condition was
poor, which surprised the parties due to Joan’s substantial hold-
ings. Joan called Elizabeth, Joseph, and Brendon for financial
and farming assistance for herself, and Steven and the parties
would supply her food, money, transportation, and labor. On
one occasion, Brendon performed some farmwork with some
other men at Joan’s request, but Joan paid only Steven for it
even though he did not help. The parties had family meetings
to discuss Joan’s poor conditions, including one meeting in
2010 where Steven produced the 2006 will to show the other
siblings for the first time, got upset at his siblings’ questions as
to Joan’s finances, and threatened to leave Joan alone.
Taken together, this evidence, which the parties testified
they discussed prior to the filing of the will contest and regard-
ing which they were advised by counsel as to the probability of
success, provided a sufficient basis for the county court to find
probable cause for contesting Joan’s will. As such, Elizabeth,
Joseph, and Brendon are not prohibited from taking under the
will through operation of article V.
2. Distribution of Trust Property
Both Appellants and Appellees make assignments concern-
ing the trust property distributed under article IV of the will.
Appellees argue the trust was not terminated, because the trust-
ees did not transfer the property to Joan’s name prior to her
death. As such, Appellees contend the power of appointment
was validly exercised by article IV and the property should be
distributed as listed in that section.
Appellants, in contrast, argue the trust was terminated in
July 2006 by agreement between Joseph and Steven, as two
of the three trustees, and Joan. This termination, Appellants
assert, was confirmed by the trial court in August 2006 in its
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dismissal of the challenge to the trust. Because the trust was
terminated and because article IV is for the distribution of trust
property, Appellants contend the listed property should be dis-
tributed according to the residual clause of article III in equal
shares to Elizabeth, Joseph, Brendon, and Steven.
It is clear that Joan, as the testator and sole beneficiary,
and Joseph and Steven, as the majority of trustees to the trust,
sought to terminate the trust in July 2006. In Joan’s motion to
dismiss the challenge to the trust, Joan explained that Joseph
and Steven, as a majority of the trustees, made a determination
to terminate the trust and distribute the trust property to her as
the sole income beneficiary. The motion additionally noted that
Joan, as settlor and sole beneficiary, consented to such termi-
nation. Attached to this motion was a document titled “Barger
Family Irrevocable Trust Resolution of Trustees to Terminate
Trust,” signed by Joseph and Steven, which purported to ter-
minate the trust at their direction. Also attached was a docu-
ment titled “Release Agreement,” signed by Joan, ratifying and
approving the actions taken by the trustees and releasing them
from any liability in their capacity as trustees.
It is also evident that the court confirmed the trust was
terminated by Joan, Joseph, and Steven in its order granting
Joan’s motion and dismissing the action. The court noted that
the terms of the trust allowed for termination at the direction of
a majority of the trustees and that Joseph and Steven directed
that the trust be terminated. Accordingly, the court found the
trust effectively terminated.
[16,17] A trust terminates at the time at which it becomes
the duty of the trustee to wind up administration of the trust,
and not at the time when that winding up period is actually
accomplished.18 After a trust has been terminated, a trustee
must expeditiously exercise the powers appropriate to wind up
the administration of the trust and distribute the trust property
18
See, In re Estate of Hedke, supra note 17; 3 Restatement (Third) of Trusts
§ 89 (2007).
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to the persons entitled to it.19 Thus, after the trust terminated,
William, Joseph, and Steven, as trustees, continued to have a
nonbeneficial interest in the trust for timely winding up the
trust and distributing its assets.20 But, after the trust terminated,
their powers were limited to those that are reasonable and
appropriate to the expeditious distribution of the trust property
and preserving the trust property pending the winding up and
distribution of that property.21
Under the trust as outlined in Joan’s motion to dismiss and
the court’s order granting the motion, the trustees’ duties in
winding up the trust were limited to the distribution of the
trust assets to its sole beneficiary, Joan. Regardless of whether
William, Joseph, or Steven actually transferred the corpo-
rate shares to Joan, the trust was terminated. Because of this
termination, Joan no longer possessed the power of appoint-
ment under the trust. The only authority remaining under
the trust was for the trustees to transfer its property to Joan.
Therefore, Appellants’ argument that the trust was not termi-
nated because its property had not been distributed and that
Joan exercised the power of appointment at the date of her
death fails.
[18-20] Appellants also contend Joan made the appoint-
ment at the time of the will’s execution, which predated the
termination of the will and requires distribution in accordance
with that appointment. However, it is an elementary rule that
the provisions of a will take effect and become operative at
the time of the death of the testator.22 The will always speaks
from the date of the testator’s death, because the testator could
always modify the distributions prior to her death.23 A will is,
19
Neb. Rev. Stat. §§ 30-3881(a)(26) and 30-3882(b) (Reissue 2016).
20
Neb. Rev. Stat. § 30-3837(d) (Reissue 2016); §§ 30-3881(a)(26) and
30-3882(b). See, also, In re Estate of Hedke, supra note 17.
21
§§ 30-3881(a)(26) and 30-3882(b); In re Estate of Hedke, supra note 17.
22
In re Estate of Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
23
Id.; In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982).
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according to law, of an ambulatory character, and no person
can have any rights in it until the testator is dead.24 Thus, the
appointment made in the 2006 will was not effective until
after Joan’s death, at which point, as described above, the trust
was already terminated and Joan no longer held the power
of appointment under the trust. Appellants’ argument that the
appointment was made in the execution of the 2006 will is
without merit.
Having determined the trust terminated and the property
held therein reverted back to Joan, individually, we must deter-
mine whether this property should be distributed according
to the specific bequests of article IV or the residual clause of
article III.
[21,22] The cardinal rule in construing a will is to ascertain
and effectuate the testator’s intent if such intent is not contrary
to the law.25 A court must examine the will in its entirety, con-
sider and liberally interpret every provision in the will, employ
the generally accepted literal and grammatical meanings of
words used in the will, and assume that the testator understood
the words used in the will.26
Article III is titled “Disposition of Property” and provides,
in relevant part, “I give, devise, and bequeath all my property
which I own or in which I have an interest at the time of my
death . . . , and which is not property of the Barger Family
Irrevocable Trust,” in equal shares to Elizabeth, Joseph,
Brendon, and Steven. Article IV, in turn, is titled “Exercise of
Power of Appointment” and provides specific instructions for
property that was contained within the trust property. Under
each section of article IV, Joan stated she was “exercis[ing]
the power of appointment granted to [her in the trust]” by
giving the listed property to specific children and directing
24
In re Estate of Odenreider, supra note 22.
25
Bur. v. Maddocks, 294 Neb. 152, 881 N.W.2d 185 (2016). See Neb.
Rev. Stat. § 30-2341 (Reissue 2016).
26
Burnett, supra note 25.
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the specific distribution of property held by corporations
owned by the trust. In determining Joan intended the property
listed in article IV to be distributed according to its direc-
tions regardless of its status as trust property or her individual
property, the county court considered extrinsic evidence to
determine whether there was latent ambiguity in the bequests
under these sections.
[23-26] Ambiguity exists in a will when a word, phrase,
or provision in the instrument has, or is susceptible of, at
least two reasonable interpretations or meanings.27 Parol evi-
dence is inadmissible to determine the intent of a testa-
tor as expressed in his or her will, unless there is a latent
ambiguity therein which makes his or her intention obscure
or uncertain.28 A latent ambiguity exists when the testator’s
words are susceptible of more than one meaning, and the
uncertainty arises not upon the words of the will as looked
at in themselves, but upon those words when applied to the
object or subject which they describe.29 Extrinsic evidence is
admissible both to disclose and to remove latent ambiguity of
a will.30
Article IV lists specific property in Joan’s estate and makes
specific bequests of that property, and article III specifically
exempts from its directed distribution the property described
in article IV as trust property. While article IV provided that
Joan made the bequests pursuant to her authority under the
trust, which had already terminated, she still retained the
authority to distribute this property as the individual owner.
Due to the termination of the trust, the issue became that
this property is now misidentified as trust property under
the will and, looking at Joan’s intent in executing the will,
27
See In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006).
28
Id.
29
Id.
30
See, id.; Kluver v. Deaver, 271 Neb. 595, 714 N.W.2d 1 (2006); In re
Estate of Bernstrauch, 210 Neb. 135, 313 N.W.2d 264 (1981).
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whether she intended the specific distributions only if the
property remained trust property.
At trial, Wine testified that Joan made the specific bequests
in her will in an effort to keep the farm and its operation
in the Barger family, and this intention would have applied
whether the property was under the trust or her own name.
Furthermore, the evidence surrounding the termination of the
trust showed that Joan sought such termination in an effort
to protect the farming operation and prevent costly litiga-
tion that would tie up the operating corporations. There was
no evidence that Joan terminated the trust in an effort to
amend her estate plan, and, in fact, in the release agreement
attached to the motion to dismiss, Joan reiterated that she had
already exercised her power of appointment in the 2006 will.
While we determined above that this appointment did not
occur until her death, which was after the trust already ter-
minated, it is indicative that Joan believed the trust property
would be distributed according to the instructions contained
within the 2006 will. This evidence indicated that there was
a latent ambiguity as to Joan’s intention of the distribu-
tion of the property listed in article IV. Thus, the court did
not err in considering the extrinsic evidence in determining
Joan’s intent.
We conclude, taking into account the specific directions for
individual items of property under article IV, the evidence of
Joan’s intentions in directing the specific distributions under
article IV, and the evidence of Joan’s continued actions con-
sistent with the understanding that the distributions would
be made as detailed, Joan intended to make the distributions
according to article IV regardless of whether she had author-
ity to direct distribution under the trust or whether she owned
the property individually at the time of her death. Accordingly,
the county court did not err in determining that the 2006
will directed distribution according to article IV regardless
of whether the property described was, at the time of Joan’s
death, held by the trust or Joan individually.
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V. CONCLUSION
Because there was probable cause of undue influence in the
drafting of the 2006 will, article V does not prohibit Elizabeth,
Joseph, and Brendon from taking under the will due to the
2012 will contest. Additionally, the trust described in the 2006
will was terminated prior to Joan’s death, Joan did not exercise
the power of appointment under the trust through the will until
her death, and Joan did not have the power of appointment at
the time of her death, due to the trust’s termination. However,
the county court appropriately considered extrinsic evidence
in determining that there was a latent ambiguity in the terms
of the will and that distribution of the property described in
article IV was intended to be made according to its directives
regardless of whether Joan owned the property individually or
under the trust at the time of her death.
A ffirmed.