In re Estate of Koetter

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/16/2022 01:05 AM CST
- 549 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549In re Estate of Walter R. Koetter, deceased.
Richard A. Koetter, individually and as the nominated
Personal Representative of the Estate of Walter R.
Koetter, deceased, appellant and cross-appellee,
v. Debra J. Meyers, appellee and cross-appellant,
and Diana K. Wilkinson et al., appellees.
___ N.W.2d ___
Filed October 7, 2022. No. S-21-623.
1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
2. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
3. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
4. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
5. Verdicts: Appeal and Error. When reviewing a jury verdict, an appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
6. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
- 550 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549evidence presented to the jury upon which it could find for the success-
ful party.
7. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
9. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
tion of law, upon which an appellate court reaches a conclusion indepen-
dent of the trial court.
10. Wills: Undue Influence. 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.
11. Wills: Undue Influence: Proof. To show undue influence, a will
contestant must prove the following elements by a preponderance of
the evidence: (1) The testator was subject to, or susceptible 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.
12. 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.
13. Undue Influence. Mere suspicion, surmise, or conjecture does not war-
rant a finding of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its existence.
14. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation, and fair-
ness of the judicial process. Generally, an appellate court will find plain
error only when a miscarriage of justice would otherwise occur.
15. Motions for New Trial: Appeal and Error. A motion for new trial is to
be granted only when error prejudicial to the rights of the unsuccessful
party has occurred.
16. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
- 551 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Appeal from the District Court for Red Willow County:
David W. Urbom, Judge. Affirmed in part, and in part vacated
and dismissed.
Michael L. Johnson and Jared J. Krejci, of Smith, Johnson,
Allen, Connick & Hansen, for appellant.
Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In this appeal from a will contest proceeding in district court,
the proponent of the will contests the jury’s finding that the
will was the product of undue influence and therefore invalid.
He also claims a new trial is warranted because a purported
text message not received in evidence was read on the record
and referenced during closing arguments. We find no merit to
these arguments. But on cross-appeal, in which the opponent of
the will challenges an award of attorney fees and expenses that
the district court purported to award pursuant to Neb. Rev. Stat.
§§ 30-2481 and 30-2482 (Reissue 2016), we conclude that the
district court lacked jurisdiction over that matter. Accordingly,
we vacate the portion of the order that purported to award
attorney fees and expenses and dismiss the cross-appeal.
I. BACKGROUND
1. Probate Proceedings and Will Contest
Initiated in County Court
Walter R. Koetter died in 2017 at the age of 88. Thereafter,
one of his sons, Richard A. Koetter (Dickie), filed a petition in
county court for formal probate of a will executed by Walter
in 2014 (2014 will). Dickie was the nominated personal rep-
resentative of the 2014 will. Debra J. Meyers, one of Walter’s
daughters, objected to the probate of the 2014 will, alleging, in
- 552 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549part, that it was the result of undue influence. The will contest
was transferred to district court pursuant to Neb. Rev. Stat.
§ 30-2429.01 (Cum. Supp. 2020). The only issue at the ensuing
jury trial was whether the 2014 will was invalid as a result of
undue influence.
2. Will Contest Proceedings
in District Court
There was evidence at trial that supported both parties’
positions as to undue influence; but considering the governing
standards of review, we recount the evidence relevant to undue
influence in the light most favorable to Debra.
(a) Koetter Family and Farm and
Ranch Operation Overview
The jury heard evidence that Walter, a farmer and rancher in
McCook, Nebraska, had five surviving children at the time of
his death in 2017: Debra, Dickie, Diana K. Wilkinson (Diana),
Donna S. Friehe (Donna), and Douglas S. Koetter. Another son,
Darin Koetter, died in 2003. Walter’s wife, Marilyn Koetter,
also died several years before Walter, in 2011.
Unlike most of Walter and Marilyn’s other children, Dickie
was uninvolved with the family and with the farm for decades.
During that time, he had a series of jobs outside McCook. In
2006, Dickie moved back to the area from Lincoln, Nebraska.
Walter asked Dickie to return, in part to help with the farm
and ranch operation. At first, Dickie lived in town, owned
no real estate, and was not involved in Walter’s operation. In
approximately 2008, Dickie moved from town to live rent free
on an acreage owned by Walter, near the home where Walter
lived. Around that time, Dickie began working in Walter’s
operation, along with Douglas, who had been working there
for about 40 years. Douglas left the operation after less than 2
years of Dickie’s return to the area. Douglas testified that the
operation could not comfortably provide for everyone involved
and that Walter expressed he did not need Douglas on the
farm anymore.
- 553 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549In 2012, Walter transferred a cattle herd to Dickie as com-
pensation, and in 2013 and 2014, Walter paid Dickie wages on
a somewhat irregular basis.
(b) Walter’s Wills and Land Transfers
Walter executed several wills between 2003 and 2012. In
general, those wills divided the estate equally among his six
children, with the children of Walter’s deceased son, Darin,
receiving his share.
When Walter was 84 years old, he executed the 2014 will on
April 25 of that year. The 2014 will devised Walter’s property
as follows: (1) household goods, valued at $5,000, equally to
the five living children; (2) farm machinery and farm equip-
ment, valued at $179,444.71, to Dickie; (3) money in check-
ing or savings accounts, valued at $168,267.66, 70 percent to
Dickie and 30 percent to Douglas; (4) life insurance payable to
the estate, valued at $84,323.50, to the three daughters; and (5)
the remainder of the estate, valued at $5,580.96, 70 percent to
Dickie and 30 percent to Douglas.
On the same day that the 2014 will was executed, Walter
executed deeds conveying interests in real property to Dickie
and Douglas, while reserving a life estate in his own name.
Dickie’s interest was valued at $1,195,750, and Douglas’ inter-
est was valued at $502,053. Debra testified that she was a
party to a pending action to set aside the deeds executed April
25, 2014.
(c) Testimony of Walter’s Attorneys
Jon Schroeder had handled Walter’s estate planning since
2003 and prepared Walter’s 2012 will. He testified that he met
with Walter 10 to 20 times between April 2011 and October
2012 to close Marilyn’s estate and revise Walter’s estate plan.
Schroeder denied discussing transferring a significant por-
tion of Walter’s assets to Dickie, but on Walter’s request, he
discussed other options for compensating Dickie, who began
attending Walter’s meetings with Schroeder in 2011. This was
the first time any of Walter’s children had attended his estate
- 554 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549planning meetings with Schroeder. Schroeder perceived Dickie
to be “tense” and “aggressive” regarding his compensation
beginning in September 2012, asking “‘How do I get compen-
sated for what I’m doing for dad[?]’” In a meeting sometime
after October 30, Dickie asked several times, “‘What is in
it for me? How am I going to be compensated?’” Schroeder
asked Dickie to leave the room so that he could speak to Walter
alone. Schroeder testified that Dickie did not seem happy with
the request, but left. After he did, Schroeder told Walter, “‘I am
not feeling comfortable with this conversation with Dickie,’”
and Walter replied, “‘I’m not either.’” After that meeting,
Schroeder never saw or spoke to Walter again.
In executing the 2014 will and deeds, Walter was repre-
sented by attorney Justin Hermann. Hermann first met with
Walter to discuss changes to Walter’s estate plan when Walter
came to his office alone in September 2013, having been trans-
ported there by someone else. Hermann testified that prior to
the estate planning work, he had Walter provide him with two
letters from physicians, both finding that Walter had sufficient
testamentary capacity.
Hermann testified that he met with Walter on April 16, 2014,
in his office. At that time, Walter signed updated powers of
attorney and a living will. The will and deeds were prepared,
but because some additional changes were needed, they sched-
uled a followup appointment for their execution. Hermann
testified that he learned from Dickie on April 21 that Walter
had been hospitalized due to chest pains. He was discharged,
but was not allowed to travel, so Hermann arranged to execute
the documents in McCook, where Walter lived, rather than at
Hermann’s office in Kearney, Nebraska. On the day Walter
executed the 2014 will, Walter signed an acknowledgment
that Dickie and Dickie’s wife drove him to the office and
participated in a meeting earlier in the day to discuss a farm
lease involving Dickie that was part of the estate plan, but that
they were not present when Walter and Hermann reviewed the
terms of the will. Hermann testified that he had not observed
- 555 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Walter outside his office and did not see everything happening
in Walter’s life.
Hermann testified that he had represented Dickie in another
matter the month before he met with Walter. Hermann testified
he also met with Dickie and his wife to discuss the farm lease,
but he never met with Dickie about the 2014 will. However,
his billing statements reflect that in 2013 and 2014 he had sev-
eral 5-to-10-minute telephone conversations with Dickie’s wife
regarding Walter’s “estate planning.”
(d) Testimony by Physicians
The two physicians who examined Walter in 2013 testified.
Both opined that Walter was able to make decisions for himself
at that time. One of those physicians admitted that he would
not be aware if Walter was being subjected to undue influence
by a family member.
(e) Testimony by Walter’s Family and Neighbors
Debra testified that after Marilyn moved to a nursing home
in 2009, other family members were “taking care” of Walter,
who at that time continued to work in the field. She testified, “I
would do, you know, whatever he needed to do. I was helping
him.” This included taking “sandwiches out to him,” buying
his groceries, taking him to medical appointments, and coordi-
nating his Veterans Affairs benefits.
Members of Walter’s family testified that before Marilyn’s
death in April 2011, Walter frequently gathered with his chil-
dren and grandchildren multiple times a week for meals, farm-
work, and celebrations, but Dickie rarely participated in any
family gatherings, despite being invited. After Marilyn’s death,
the family as a whole no longer celebrated special events with
Walter; he celebrated only with Dickie. Debra recalled that
after Marilyn’s death, she tried to take Thanksgiving dinner
to Walter, but he declined, saying that “Dick[ie] wouldn’t like
it.” Debra testified that from September 2012 until October
2013, whenever she was at Walter’s house, Dickie and his wife
were present.
- 556 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Several family members testified that when they visited
Walter alone, he seemed to be checking to see if Dickie was
approaching, and Diana described Walter’s behavior on these
occasions as “agitated” and “fidgety.” Another relative testified
that if Dickie did arrive, Walter became less talkative. Some
viewed Dickie as curtailing Walter’s contact with the rest of
the family.
After 2011, Dickie and his wife, whom Dickie married in
2013, took over buying Walter’s groceries and taking him to
medical appointments. Dickie did not communicate informa-
tion about Walter’s medical condition to the rest of the fam-
ily as Debra had. Dickie also became a signatory on Walter’s
checking account and Walter’s power of attorney, whereas
Debra previously had been Walter’s power of attorney. Dickie
testified that he would prepare Walter’s lunch daily and help
Walter with bills by addressing and stamping envelopes.
Several family members testified that they did not believe
Walter had the ability to make his own decisions after October
2012 and that they believed Dickie was influencing Walter
and overpowering his decisions. Two relatives familiar with
the operation testified that after Dickie came back to town,
Walter, who previously had an opinion on everything and made
decisions on his own, could not make a decision without con-
sulting with Dickie. One of the relatives recounted that once
when he was outdoors, a “couple hundred yards away” from
Dickie and Walter, he heard Dickie “screaming” at Walter.
On another occasion, the same relative saw Walter outside in
102-degree heat, “covered in sweat,” and advised Walter to go
inside to avoid heatstroke. Walter replied, “‘Well, I was told
to stay . . . here. [Dickie’s] going to yell at me,’” but Walter
was subsequently convinced to return to the house. According
to Douglas, Walter had phased out of the operation as he aged,
and “eventually . . . you could say he was out.” When Dickie
and his wife were out of town in 2013, a neighbor helped
Walter with farm chores at Dickie’s residence.
- 557 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Several of Walter’s children said that Walter had changed
after Dickie came back, in that he had lost the “spark in his
eye” and his typical “easygoing,” “calm,” “happy,” and “sharp”
demeanor; watched television rather than being active on the
farm; and no longer expressed an interest in family members
other than Dickie and Dickie’s wife. In describing Walter after
Dickie joined the operation, they used descriptions such as
“shaky,” “deathly afraid” of Dickie, “uncomfortable” around
the rest of the family, “a whipped puppy,” “beaten down,”
“stressed,” “closed up,” “timid,” “nervous,” “cowered,” “just
giving up,” “going downhill,” and “getting more intimidated
all the time.”
Jeremy Meyers, one of Walter’s grandsons, testified that
Walter was “getting manipulated” and that Dickie was “start-
ing to put some pressure” on Walter in late 2012 or early 2013.
Jeremy recalled that in July 2013, Walter wrongly accused
him of wanting to take over the operation and Walter said he
had heard it from Dickie. Jeremy testified that in September
2013, he received a text message from Walter’s phone that
was intended, at least in part, for Dickie’s wife. Shortly after,
Jeremy received a call from Walter, who addressed him as
“‘Jeremy’” rather than “‘Jerm’” as he always had. During
the call, Jeremy heard two voices, and in his opinion, Dickie
was coaching Walter to instruct Jeremy to delete the text mes-
sage. Jeremy detected shakiness in Walter’s voice and was
concerned that Walter was under “severe duress.” Later, at
about 7 p.m., Jeremy went to check on Walter, who he found
sitting in the dark, “shaking uncontrollably” and “virtually
sobbing.” Jeremy asked Walter, “‘Did he do something to
you?’” but Walter “wouldn’t tell” Jeremy. Jeremy testified that
he was concerned enough about the incident to report it to law
enforcement.
Walter communicated to several family members and a
neighbor that he intended to change his previous estate plan
to leave the majority of his assets to Dickie and Douglas.
Family members were also aware that Walter had sought out
- 558 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549a new attorney. Diana recognized that Walter wanted to leave
a legacy in regard to his farm but believed Dickie was mak-
ing the decisions. Debra testified that in October 2013, Dickie
informed her, in Walter’s presence, that Darin’s children were
“being taken completely out of the will.” Debra testified that
she believed they should be included and argued with Dickie
about the matter, and Dickie’s wife also stated her opinion, but
Walter did not say a word. Another daughter, Donna, testified
that Walter told her about his new estate plans in 2016. To
Donna, Walter seemed “anxious” and aware that the informa-
tion would hurt her. When Donna told Walter that she respected
his decision but did not agree, Walter responded, “‘Dick[ie]
says this is how it should be.’”
Dickie denied ever telling Walter how to make his will or
to transfer land, but he testified that he told Walter that if he
divided his estate equally among his children, it would likely
be sold to someone outside the family after his death because
the children could not “get along.”
(f) Undue Influence Expert; Testimony
and Argument Concerning
Text Message
Dr. Lindsey Wylie, an expert called by Dickie, was the first
witness to testify on the second day of the 4-day trial. She
testified to her opinions that Walter’s level of cognition was
high on the date he executed the 2014 will and that he was not
susceptible to undue influence. She based her opinion on depo-
sitions and exhibits supplied to her by Dickie’s counsel.
On cross-examination, Debra’s counsel elicited Wylie’s tes-
timony that if the information supplied to her was faulty or
incomplete, her opinion would be faulty or incomplete. Wylie
confirmed that one of the depositions supplied by Dickie’s
counsel was that of Dickie’s wife. The following colloquy then
took place:
Q. So if [Dickie’s wife] has said—made opposite
statements or contradictory statements, would that be
- 559 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549something you’d . . . want to take into account when
you’re relying on her deposition?
A. Contradictory statements at what point?
Q. Subsequent to her deposition.
A. I mean, . . . I guess, it would be something I would
. . . want to have known about then when I rendered
my report.
Q. But you were not aware of that?
A. I don’t know what the contradictory statements are,
so I can’t speak to it.
Q. Well, if [Dickie’s wife] indicated in a text to family,
“Dick[ie] was behind all the will changing, and grandpa
had—and had grandpa and I scared to death if it wasn’t
done, he would do something”, would that be a statement
you would be considering—want [to] consider when . . .
rendering an opinion?
A. Yep.
[Dickie’s counsel]: Your Honor, I would object. That
matter’s not in evidence. I would move to strike.
[Debra’s counsel]: Your Honor, she asked what it said.
THE COURT: Yeah, the objection’s overruled. I think
she can answer whether or not that would be something
she would have considered.
BY [Debra’s counsel]:
Q. Would something—that statement want [sic] you to
further vet [Dickie’s wife]?
A. Of course, I would want to have all the information
at the time I rendered my report.
Later during the trial, Dickie’s counsel requested a copy of the
text message. Debra’s counsel acknowledged that it would not
have been provided in response to discovery, but said Debra
planned to use it “when [Dickie’s wife] shows up.” The district
court overruled the “objection,” but noted that Dickie’s counsel
would not be prohibited from making a similar request later.
Dickie’s wife did not testify at trial, and Dickie’s counsel did
not renew his request for a copy of the text message.
- 560 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549The text message came up again in closing arguments.
Debra’s counsel stated that Wylie’s opinion was based on
depositions supplied by opposing counsel, “not the full infor-
mation.” He next mentioned the text message, and Dickie’s
counsel objected:
[Debra’s counsel]: . . . I think she clarified that, saying
it’s only as good as what she’s been given. And when I
asked her about [Dickie’s wife], and I question, what if
[Dickie’s wife] had sent a text message? She says, what’s
the text message say?
[Dickie’s counsel]: Objection, Your Honor.
THE COURT: Objection is sustained. The text message
isn’t in evidence.
[Debra’s counsel]: The question and answer.
THE COURT: Yes, but not anything about the text
message.
[Debra’s counsel]: No, I quoted the text message.
THE COURT: Okay. You’re fine.
[Dickie’s counsel]: I thought that question was stricken.
[Debra’s counsel]: No, it’s still in the evidence.
THE COURT: Yeah, it’s in. Yeah, the objection is
sustained.
Just as long as you don’t bring up anything about any
text message.
[Debra’s counsel]: Okay.
THE COURT: As far as the content of the text
message.
[Debra’s counsel]: But it’s already in evidence. When
I asked the question, I specifically read it. There was no
objection, and it was answered.
[Dickie’s counsel]: There was an objection.
Your Honor, can we approach?
[Debra’s counsel]: Okay. Your Honor, that’s fine.
THE COURT: You’re okay? All right.
[Debra’s counsel]: All right. Okay. So she said if
she didn’t have all the facts with [Dickie’s wife], she
- 561 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549basically said, “Yeah, I’d have to reconsider that”, is what
her testimony was.
So, basically, she acknowledged she doesn’t have all
the facts and yet —
[Dickie’s counsel]: Objection, Your Honor. Can we
approach?
(An off-record sidebar was held.)
THE COURT: Go ahead, [Debra’s counsel].
[Debra’s counsel]: Dr. Wylie indicated several of the
witnesses weren’t fully vetted for her, and that she also
indicated that her ability to give an opinion relied solely
on what was supplied to her, solely supplied on one
side . . . .
So when you look at — the expert witness instruction
indicates — you take an expert — she’s no different than
you when coming to this final conclusion, so don’t let
her opinion — or first — apparently, first expert opinion,
which is not fully vetted, sway you in any way. The cred-
ibility you give her is entirely up to you.
The jury was instructed that statements, arguments, and
objections by attorneys were not evidence for its consideration,
nor were questions and answers for which objections had
been sustained.
(g) Jury Verdict and Subsequent
Motions and Orders
The jury returned a verdict finding that the 2014 will was
not valid. The district court accepted the verdict.
Dickie then filed a motion to alter or amend, which asked
the district court to rule on a motion for attorney fees and
expenses pursuant to § 30-2481 that he had earlier filed in the
district court. On the same day, Dickie filed a motion for judg-
ment notwithstanding the verdict. In the alternative, Dickie
moved for a new trial.
In the same order, the district court overruled the motions
for judgment notwithstanding the verdict and for a new trial,
- 562 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549and sustained the motion to alter or amend regarding attorney
fees and expenses in the amount of $196,914.47. In ruling on
attorney fees and expenses, the district court cited §§ 30-2481
and 30-2482.
Dickie filed an appeal, and Debra cross-appealed.
II. ASSIGNMENTS OF ERROR
On appeal, Dickie assigns several grounds for reversal that,
consolidated and restated, fall into two general categories.
The first category relates to his position that Debra did not
meet her burden of proving the 2014 will was invalid: He
claims that the evidence was insufficient to sustain the jury’s
verdict and that the district court erred in denying his motions
for directed verdict, judgment notwithstanding the verdict,
and new trial. The second category concerns the text mes-
sage. Dickie asserts (1) that the district court erred in allow-
ing Debra’s counsel to ask his expert about the purported text
message, denying his motion to strike his expert’s response,
and not granting his motion for a new trial based on that
exchange, and (2) that misconduct by Debra’s attorney during
closing arguments misled the jury regarding the text message
to such a degree that it resulted in an unjust verdict and con-
stituted plain error.
On cross-appeal, Debra assigns that the district court erred
in awarding attorney fees and expenses to Dickie and in fixing
the amount of those fees.
III. STANDARD OF REVIEW
[1] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. Arens v. NEBCO,
Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
[2-4] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. Valley Boys
- 563 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856(2020). To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Id. On a motion for judg-
ment notwithstanding the verdict, the moving party is deemed
to have admitted as true all the relevant evidence admitted that
is favorable to the party against whom the motion is directed,
and, further, the party against whom the motion is directed is
entitled to the benefit of all proper inferences deducible from
the relevant evidence. Id.[5,6] When reviewing a jury verdict, an appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party. Pantano v. American Blue
Ribbon Holdings, 303 Neb. 156, 927 N.W.2d 357 (2019). A
jury verdict may not be set aside unless clearly wrong, and
it is sufficient if there is competent evidence presented to
the jury upon which it could find for the successful party. Id.See, also, In re Estate of Disney, 250 Neb. 703, 550 N.W.2d
919 (1996).
An appellate court reviews the denial of a motion for new
trial for an abuse of discretion. See Schmid v. Simmons, 311
Neb. 48, 970 N.W.2d 735 (2022).
[7,8] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility. Brown v. Morello,
308 Neb. 968, 957 N.W.2d 884 (2021). In a civil case, the
admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015).
[9] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent
of the trial court. State ex rel. Peterson v. Creative Comm.
Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019).
- 564 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549IV. ANALYSIS
1. Undue Influence
We begin with the issue at the heart of these proceedings,
undue influence. At trial, Dickie made several attempts to
preempt or overturn the jury’s verdict that found the 2014 will
invalid. He made unsuccessful motions for a directed verdict at
the close of Debra’s case and at the close of all the evidence,
for judgment notwithstanding the verdict, and, in the alterna-
tive, for new trial, all on the grounds that the evidence did not
prove undue influence. On appeal, he challenges the district
court’s rulings on those motions and further assigns that the
evidence was insufficient to sustain the jury’s verdict. We note
at the outset that Dickie cannot now challenge the ruling on the
motion for directed verdict he made at the close of Debra’s evi-
dence because he proceeded to present his own evidence after
that motion was overruled. See Anderson v. Babbe, 304 Neb.
186, 933 N.W.2d 813 (2019). As for the remaining motions, we
address Dickie’s arguments in a general manner by considering
whether there was competent evidence that allowed the jury
to reasonably find that Walter executed the 2014 will as the
result of undue influence. Although some evidence supported
Dickie’s position, other evidence supported Debra’s position,
and under the applicable standards of review, we conclude
that the evidence was sufficient to sustain the jury’s verdict in
Debra’s favor.
[10,11] Undue influence sufficient to defeat a will is manip-
ulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s. In re Estate of Clinger,
supra. To show undue influence, a will contestant must prove
the following elements by a preponderance of the evidence: (1)
The testator was subject to, or susceptible 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. See In re Estate
of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019). See, also,
Spinar v. Wall, 191 Neb. 395, 215 N.W.2d 98 (1974).
- 565 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549[12,13] 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.
Mere suspicion, surmise, or conjecture does not warrant a find-
ing of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its
existence. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d
569 (2017).
Dickie mainly challenges the jury’s verdict by arguing that
because the evidence did not show that Walter suffered from a
mental or physical impairment, it did not establish that he was
susceptible to undue influence. Dickie appears to take the posi-
tion that mental or physical impairment is a required element
of undue influence. Although we have said that suspicious
circumstances tending to show undue influence are indicated
when there is “an elderly testator in a weakened physical or
mental condition,” In re Estate of Barger, 303 Neb. at 835,
931 N.W.2d at 674, we have not held that mental or physical
impairment is essential to a finding of undue influence. And
although there was no evidence that Walter had a specifi-
cally diagnosed mental or physical impairment at the time he
executed the 2014 will, there was evidence that Walter, who
was 84 years old when he executed the 2014 will, exhibited
signs of decline. Whereas Walter previously had been “easy-
going,” “calm,” “happy,” and “sharp,” and had a “spark in
his eye,” there was testimony that after Dickie’s return, he
became “shaky,” “stressed,” “closed up,” “timid,” and “ner-
vous”; “cowered” like a “whipped puppy”; and seemed to be
“just giving up” and “going downhill.”
In addition, there are other factors that can demonstrate
susceptibility to undue influence. In assessing susceptibility,
“[t]he question is . . . whether [the testator’s] natural defenses
are lowered leaving [him or] her unable to resist the sugges-
tions of a stronger, more determined individual.” In re Estate
of Glass, 85 Wis. 2d 126, 140, 270 N.W.2d 386, 393 (1978).
- 566 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Factors showing susceptibility recognized by this court have
included a testator’s age, health, and dependence on the person
accused of undue influence for transportation, groceries, and
business affairs. See, In re Estate of Wagner, 246 Neb. 625,
522 N.W.2d 159 (1994); In re Estate of Bainbridge, 151 Neb.
142, 36 N.W.2d 625 (1949); In re Estate of Bowman, 143 Neb.
440, 9 N.W.2d 801 (1943).
Other jurisdictions have likewise cited similar factors,
including dependence and a tendency to be passive and easily
swayed. See, Moriarty v. Moriarty, 150 N.E.3d 616 (Ind. App.
2020) (basing finding of susceptibility on recent death of loved
one, anxiety and depression, medical conditions, isolation from
family and friends, and dependency on others); Matter of
Estate of Smith, 164 Idaho 457, 476, 432 P.3d 6, 25 (2018),
quoting King v. MacDonald, 90 Idaho 272, 410 P.2d 969(1965) (finding testator susceptible to accused influencer’s spe-
cific influence and stating that “determining whether a testator
was susceptible to undue influence ‘requires a consideration of
many circumstances, including his state of affections or dislike
for particular persons, benefited or not benefited by the will; of
his inclinations to obey or to resist these persons; and, in gen-
eral, of his mental and emotional condition with reference to
its being affected by any of the persons concerned’”); Erickson
v. Olsen, 844 N.W.2d 585, 594 (N.D. 2014) (affirming dis-
trict court’s finding of undue influence where, in contrast to
case in which decedent was “‘his own boss’” and found not
susceptible, testator was “passive and easily influenced” and
dependent on care of others); Hernon v. Hernon, 74 Mass. App.
492, 498-99, 908 N.E.2d 777, 783 (2009) (testator’s suscepti-
bility to undue influence by brother shown by evidence that
although the two had strained and distant relationship, testator
had no choice but to have brother move into his home to care
for him; that he was dependent on brother who drove him to
appointments, including one to attorney’s office to execute
will 2 months before he died; and that brother stated “‘[testa-
tor] will do exactly what I want when it come[s] to his will or
- 567 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549I’m out of here’”); In re Estate of Glass, supra (susceptibility
factors include testator’s age, personality, physical and mental
health, and ability to handle business affairs); In re Feitag’s
Estate, 9 Wis. 2d 315, 321-22, 101 N.W.2d 108, 111 (1960)
(testator’s susceptibility shown by “testimony that she was
easily led or swayed by people about her,” including incident
in which she “talked about selling a washing machine, but she
didn’t know whether she would because she didn’t think the
appellant would like it”). See, also, In re Estate of Milas, No.
98-2511, 1999 WL 627680 at *3 (Wis. App. Aug. 19, 1999)
(unpublished opinion listed in table at 230 Wis. 2d 186, 603
N.W.2d 748 (Wis. App. 1999)) (identifying fact that “testator
was unusually receptive to the suggestions of another to whom
he consistently deferred on matters of personal importance” as
evidence of susceptibility to undue influence).
In our view, there was other evidence in this case that, in
addition to Walter’s decline, supported a finding that Walter
was susceptible to undue influence. Evidence at trial supported
the inference that Walter was susceptible to undue influence
because Walter depended on Dickie to manage matters rang-
ing from groceries to the farming operation. Evidence showed
that after Marilyn entered the nursing home in 2009, Walter
depended on his family’s assistance with groceries, food, and
medical appointments. After Marilyn died in 2011, Walter
came to rely on Dickie or Dickie’s wife to buy his groceries,
prepare food for him, and take him to medical appointments
and meetings with his attorneys. According to evidence, in
the years before the 2014 will and afterward, it was only
Walter and Dickie involved in Walter’s operation. Douglas
testified that Walter’s involvement in the operation dimin-
ished as he aged, until he “was out.” There was testimony that
rather than being active on the farm, Walter stayed inside and
watched television.
There was also evidence from which the jury could infer
that Walter had become passive and easily led, making him
susceptible to undue influence. The jury heard evidence that
- 568 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Walter altered his longtime estate plans despite expressing
discomfort with Dickie’s involvement. From 2003 to 2014,
Walter had consistently maintained an estate plan that generally
divided his assets equally among his children. In September
2011, Dickie began attending meetings between Walter and
Schroeder, who had prepared Walter’s previous wills. The
jury heard Schroeder’s testimony that in October 2012, he
was “‘not feeling comfortable’” with Dickie’s “aggressive”
and repetitive questions about his own compensation during
a consultation with Walter, so much so, that Schroeder asked
Dickie to leave the room. Schroeder recounted that when he
expressed his discomfort to Walter, Walter agreed that he too
was uncomfortable. That was the last time Schroeder saw
Walter. Soon afterward, Walter began consulting about his
estate plan in Kearney with Hermann, who had represented
Dickie in another matter just the previous month. Hermann
eventually prepared the 2014 will that substantially changed
Walter’s prior estate planning.
Other evidence also allowed the jury to make inferences
regarding Walter’s passivity and tendency to yield. The jury
heard testimony that before Dickie’s return, Walter made his
own decisions, but witnesses testified that afterward, Walter
could not make a decision without Dickie, who had been
heard “screaming” at Walter. Jeremy testified about a time in
September 2013 when Dickie seemed to be coaching Walter
to ask Jeremy to delete a text message involving Dickie’s
wife that was mistakenly sent from Walter’s phone. Based
on Walter’s voice, Jeremy testified that he thought Walter
was under “severe duress.” Witnesses recalled specific state-
ments Walter made that showed Dickie’s influence over how
Walter celebrated Thanksgiving, whether he stayed outdoors
in extreme heat, how he communicated with the rest of the
family, how he ran his operation, and, most significantly, how
he devised his estate. Donna testified that when she expressed
disagreement with Walter’s plans to leave most of his assets to
Dickie and Douglas, Walter responded, “‘Dick[ie] says this is
- 569 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549how it should be.’” And there was evidence that it was Dickie
who informed Debra of certain provisions of the 2014 will
and, in tandem with his wife, argued with Debra when she
objected, while Walter sat silent. Dickie admitted that he told
Walter that if he divided his estate equally among his children
as he had long planned, it would likely be sold to someone
outside the family after his death because the children could
not get along.
We are also unpersuaded by Dickie’s allegation that proof of
undue influence failed because the 2014 will was not executed
in secret. We have observed that undue influence can be dif-
ficult to prove because it is “usually surrounded by all possible
secrecy” and “[is] not exert[ed] in a crowd.” In re Estate of
Hedke, 278 Neb. 727, 743, 775 N.W.2d 13, 28 (2009). But
we have not required secrecy to prove undue influence, and
we made the foregoing observations to explain why undue
influence often rests on inferences drawn from circumstantial
evidence. See id. “Such evidence shows a course of conduct
over a period of time intended to influence the mind of the tes-
tator.” In re Estate of Villwok, 226 Neb. 693, 698, 413 N.W.2d
921, 925 (1987). Here, the jury could have inferred that
Walter’s informing his family about the content of the 2014
will weighed against a finding of undue influence, but it would
not have been unreasonable for the jury to make the opposite
inference that these communications were a product of undue
influence that Dickie had already exerted largely in secret. The
fact that Walter did not conceal the provisions of the 2014 will
from his children does not render the jury’s undue influence
finding unreasonable.
2. Text Message
Dickie next presents two assignments of error related to
Debra’s counsel’s reference during the cross-examination of
Wylie to a purported text message sent by Dickie’s wife.
He first argues that the district court erred by allowing the
question and not immediately striking Wylie’s answer from
- 570 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549the record. Additionally, he argues that the district court’s
response to counsel’s reference to the text message in closing
arguments was plain error. We disagree with both of Dickie’s
arguments.
Beginning with Dickie’s contentions regarding the initial
cross-examination, Dickie asserts that the question Debra’s
counsel asked about the purported text message was improper,
because the text message was not in evidence. According
to Dickie, the only reason Debra’s counsel could have had
for asking the question was to get information damaging to
Dickie’s case that was not admitted into evidence before the
jury. For these reasons, Dickie argues that the district court
abused its discretion by not sustaining his objection and grant-
ing his motion to strike Wylie’s answer.
There is no dispute that at the time the question at issue was
asked, no evidence had been admitted of Dickie’s wife’s send-
ing a text message like the one described by Debra’s counsel.
Likewise, there is no dispute that no such evidence was ever
admitted. Based on our record, then, we must treat the ques-
tion as a hypothetical question that assumed facts that were not
yet, and never were, admitted into evidence. Even framed this
way, however, we conclude that the district court could, within
the bounds of its discretion, permit the question and overrule
Dickie’s motion to strike.
There may be circumstances in which a party wishes to
cross-examine an expert witness by asking a hypothetical ques-
tion that refers to certain facts not yet in evidence. Although
this court does not appear to have specifically addressed the
matter, a number of courts and commentators have recognized
that, in such a situation, a trial court has discretion to permit
the question even though the supporting evidence has not been
admitted. As the Illinois Supreme Court has explained, a trial
court can permit a party to ask a question that assumes facts
not yet in evidence in cross-examination, because the cross-
examining party may not have yet had the opportunity to
present the evidence referred to in the question. See Coriell v.
- 571 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Industrial Com., 83 Ill. 2d 105, 413 N.E.2d 1279, 46 Ill. Dec.
166 (1980). If such a question is permitted and the evidence
never materializes, that court explained, there is a safeguard—a
subsequent motion to strike by the opposing party. See id.The Hawaii Supreme Court reached the same basic conclu-
sion in Barretto v. Akau, 51 Haw. 383, 463 P.2d 917 (1969),
as to hypothetical questions that were based on facts not yet
in evidence and aimed at demonstrating an alternative theory
or contesting a substantive element of the case. That court
also held that a trial court could permit such questions if the
cross-examiner anticipated in good faith that the facts would
be established later in the trial. It also explained that if the
cross-examining party failed to eventually introduce evidence
of the facts assumed, the opponent’s remedy was a motion to
strike at the close of all evidence. See, also, United States v.
Benford, 479 Fed. Appx. 186 (11th Cir. 2011) (finding no error
in case in which trial court permitted line of questioning which
assumed facts not yet in evidence on assumption that question-
ing party would later introduce evidence supporting assump-
tions and opposing party did not request curative instruction
when such evidence was not later admitted); 1 McCormick on
Evidence § 14 at 134 (Robert P. Mosteller ed., 8th ed. 2020)
(explaining that in most jurisdictions, “there is no invariable
requirement that the supporting evidence be admitted before
the interrogating counsel poses the hypothetical question to
the expert”).
The foregoing authorities persuade us that a trial court does
not necessarily abuse its discretion if it permits a party to ask
an expert a question that assumes facts not yet in evidence
during cross-examination. Having reached this conclusion, we
can conclude rather easily that the district court did not abuse
its discretion by allowing the question and overruling Dickie’s
motion to strike here.
Wylie was the first witness to testify on the second day of
a 4-day trial. She generally testified that based on her review
of deposition testimony and other information provided to her,
- 572 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549she did not believe Walter was susceptible to undue influence.
Among the materials she considered in forming that opinion
was the deposition testimony of Dickie’s wife. The question
at issue made reference to a purported text message sent by
Dickie’s wife that presumably contradicted that deposition
testimony. And although Debra’s counsel did not mention that
Debra intended to offer evidence of the text message at the
time the question was asked and corresponding objection was
made, later that same day, he did represent to the district court
that the text message would be “use[d]” when Dickie’s wife
was called to testify. Under these circumstances, it was not
clearly untenable for the district court to permit Debra’s coun-
sel to ask Wylie if a text message like the one described would
affect her conclusions. See Barnett v. Happy Cab Co., 311 Neb.
464, 973 N.W.2d 183 (2022) (judicial abuse of discretion exists
when reasons or rulings of trial judge are clearly untenable,
unfairly depriving litigant of substantial right and denying just
results in matters submitted for disposition).
We recognize that Dickie’s wife ultimately did not testify
and that evidence of the text message was not received into
evidence. This may have entitled Dickie to a ruling striking
Wylie’s answer at the close of all evidence, but he did not
request such a ruling.
[14] This leaves Dickie’s contention regarding the closing
argument made by Debra’s counsel. Dickie frames his argu-
ment in plain error terms. We have said that an appellate court
may find plain error on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Senteney, 307 Neb.
702, 950 N.W.2d 585 (2020). Generally, we will find plain
error only when a miscarriage of justice would otherwise
occur. Id.We presume Dickie presents a plain error argument because
he cannot contend that the district court erred in ruling on the
- 573 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549objection he actually asserted during closing argument. When
Debra’s counsel first made reference to a text message, Dickie’s
counsel objected, but the district court sustained the objection
and directed Debra’s counsel not to refer to the text message.
Unable to establish that the district court erred in response
to his objection, Dickie apparently argues that the district
court had an obligation to take additional action in response to
Debra’s closing argument on its own initiative. Here, Dickie
takes issue with statements by Debra’s counsel that the text
message and Wylie’s answer were in evidence and with what
he contends was an argument by Debra’s counsel that Wylie
admitted she would reconsider her opinions in light of the
text message.
To the extent Dickie is arguing that the district court was
obligated to interrupt Debra’s closing argument sua sponte to
address the statements to which he now objects, we disagree.
When considering arguments that a trial court erred by “allow-
ing” testimony to which there was no objection, we have dis-
cussed the fact that even when a question or answer is arguably
improper, sua sponte action by the trial court may interfere
with a party’s trial tactics by bringing unwanted attention to the
testimony. See Senteney, supra. In our view, similar consider-
ations apply in the closing argument context.
[15] Neither can we agree with Dickie that the district court
was obligated to grant his motion for new trial based on the
closing argument of Debra’s counsel. A motion for new trial
is to be granted only when error prejudicial to the rights of
the unsuccessful party has occurred. Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). Further, we review the dis-
trict court’s denial of the motion for new trial for an abuse of
discretion. See id. We discern no such abuse. The district court
sustained Dickie’s objection and precluded Debra’s counsel
from referring to the text message in oral argument. Although
Debra’s counsel stated that the text message was in evidence,
we understand that statement to have been made as an argu-
ment to the district court responsive to Dickie’s objection,
- 574 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549not an argument to the jury. In any event, the jury had been
instructed that statements, arguments, and objections by attor-
neys were not evidence. And we do not understand Debra’s
counsel to have clearly argued that Wylie admitted she would
have to reconsider her opinions in light of the text message.
3. Attorney Fees and Expenses
In her cross-appeal, Debra argues that the district court erred
when it ordered that Dickie was entitled to attorney fees and
expenses incurred in defending the will contest proceeding.
Before reaching this issue, however, it is our duty to determine
whether we have jurisdiction to decide it. See Green v. Seiffert,
304 Neb. 212, 933 N.W.2d 590 (2019).
When a lower court lacks subject matter jurisdiction to
decide an issue, an appellate court also lacks the power to
resolve the issue. See In re Estate of Evertson, 295 Neb. 301,
889 N.W.2d 73 (2016). This case presents a question as to
whether the district court had subject matter jurisdiction to
order that Dickie was entitled to attorney fees and expenses
pursuant to § 30-2481. Although not initially raised by the
parties, we directed the parties to file supplemental briefs on
the issue. In their respective supplemental briefs, Debra argues
that the district court lacked jurisdiction and that any award
of attorney fees pursuant to § 30-2481 must be ordered by the
county court, while Dickie maintains that the district court had
jurisdiction to make its attorney fees order.
We begin our analysis by reviewing various statutory provi-
sions that we believe are helpful in framing the question. First,
under Neb. Rev. Stat. § 24-517(1) (Reissue 2016), county
courts have exclusive jurisdiction over all matters relating to
decedents’ estates, including the probate of wills and construc-
tion thereof. See In re Estate of Forgey, 298 Neb. 865, 906
N.W.2d 618 (2018). Notwithstanding this grant of authority to
county courts, § 30-2429.01 authorizes parties to transfer pro-
ceedings regarding the validity of a will to the district court.
Section 30-2429.01 provides, in relevant part:
- 575 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549(3) Upon the filing of the certification as provided in
subsection (2) of this section in the district court, such
court shall have jurisdiction over the proceeding on the
contest. Within thirty days of the filing of such certifica-
tion, any party may file additional objections.
(4) The district court may order such additional plead-
ings as necessary and shall thereafter determine whether
the decedent left a valid will. Trial shall be to a jury
unless a jury is waived by all parties who have filed
pleadings in the matter.
(5) The final decision and judgment in the matter
transferred shall be certified to the county court, and pro-
ceedings shall be had thereon necessary to carry the final
decision and judgment into execution.
Dickie sought an award of attorney fees in the district court
pursuant to § 30-2481, which provides: “If any personal rep-
resentative or person nominated as personal representative
defends or prosecutes any proceeding in good faith, whether
successful or not he is entitled to receive from the estate his
necessary expenses and disbursements including reasonable
attorneys’ fees incurred.”
We believe the following section, § 30-2482, is also rel-
evant. Subsection (1) of § 30-2482 provides:
After notice to all interested persons or on petition of an
interested person or on appropriate motion if administra-
tion is supervised, the propriety of employment of any
person by a personal representative including any attor-
ney, [or] the reasonableness of the compensation of any
person so employed, . . . may be reviewed by the court.
Subsection (2) of § 30-2482 lists a number of factors that
may be considered in determining the reasonableness of a fee.
In our view, the question of whether the district court had
jurisdiction to order that Dickie receive an award of attor-
ney fees and expenses pursuant to § 30-2481 depends on the
scope of authority granted to the district court by statute. We
find the scope of the district court’s statutory authority to be
- 576 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549crucial, because the district court’s general jurisdiction does
not extend to probate matters, and thus, any district court
authority over such matters is derived from and limited by
legislative grant. See In re Estate of Sehi, 17 Neb. App. 697,
772 N.W.2d 103 (2009).
On the subject of statutory authority, § 30-2429.01(4) plainly
authorizes the district court to determine whether the decedent
left a valid will. In one of our recent opinions, we cited that
subsection for the proposition that a district court’s authority
over a will contest is “limited to determin[ing] whether the
decedent left a valid will.” See Bohling v. Bohling, 309 Neb.
625, 634, 962 N.W.2d 224, 231 (2021). Debra relies on that
language to argue that the district court lacked authority to
also order that Dickie be reimbursed for his attorney fees and
expenses pursuant to § 30-2481. We believe that this issue is
slightly more complicated and that we cannot resolve it merely
by citing this language in Bohling, supra.While § 30-2429.01(4) does direct that the district court is
to determine whether the challenged will was valid, subsection
(3) provides that when a will contest is duly transferred to the
district court, the district court obtains “jurisdiction over the
proceeding on the contest.” We understand this language to
give the district court jurisdiction over the will contest pro-
ceeding and thus the authority to resolve issues that bear on
whether the decedent left a valid will. We recognized as much
in Bohling, supra, stating that the district court in a will con-
test may decide issues of will construction to the extent they
bear on the will’s validity. Because the district court is given
jurisdiction over the will contest proceeding, we also under-
stand the district court to have the authority to issue orders
instrumental to a determination of whether the challenged will
is valid on matters such as the admissibility of evidence or the
conduct of discovery.
We disagree with Dickie, however, that a determination
of whether a personal representative or nominated personal
representative should be reimbursed by the estate for attorney
- 577 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549fees incurred in a will contest pursuant to § 30-2481 is right-
fully encompassed within the will contest proceeding. Instead,
we are persuaded that such a determination is part of the rest
of the probate proceeding and committed to the jurisdiction of
the county court. This conclusion is informed by §§ 30-2481
and 30-2482. As described above, § 30-2481 provides that
a personal representative or nominated personal representa-
tive is, under certain conditions, entitled to be reimbursed by
the estate for expenses incurred in estate litigation, including
reasonable attorney fees. And, as described above, § 30-2482
directs that a personal representative’s employment of persons,
including attorneys, and the reasonableness of compensation
paid to such persons are subject to court review.
[16] We find that the foregoing statutes pertain to the same
subject matter and are thus subject to our principle of statu-
tory interpretation governing statutes in pari materia. As we
often say, components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible. In re William R.
Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807(2021). Applying this principle here, we find that § 30-2482
sets forth the procedure by which a court is authorized to
determine whether and to what extent a personal representa-
tive or nominated personal representative is entitled to be
reimbursed from the estate for expenses in estate litigation
pursuant to § 30-2481. Importantly, § 30-2482 provides that
such review is to be completed by “the court.” This is sig-
nificant because, under the Nebraska Probate Code, with an
exception not applicable here, “the court” is defined to refer
to the county court unless “the context otherwise requires.”
See Neb. Rev. Stat. § 30-2209 (Reissue 2016). We do not
believe that the context of § 30-2482 requires that “the court”
mean anything other than the county court, as provided in
§ 30-2209.
- 578 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549We find confirmation of our conclusion that § 30-2482
provides the procedure by which a court can review claims
for reimbursement pursuant to § 30-2481 in an opinion of
the North Dakota Supreme Court. See Matter of Estate of
O’Connell, 476 N.W.2d 8 (N.D. 1991). That court interpreted
North Dakota statutes based on the same Uniform Probate
Code provisions upon which §§ 30-2481 and 30-2482 are
based. It found that claims for reimbursement for estate litiga-
tion sought under § 30-2481’s North Dakota counterpart were
subject to court review pursuant to § 30-2482’s North Dakota
counterpart. See Matter of Estate of O’Connell, supra.
We are not swayed from our conclusion that a determina-
tion under § 30-2481 is committed to the jurisdiction of the
county court by Dickie’s reliance on In re Estate of Miller, 231
Neb. 723, 437 N.W.2d 793 (1989), disapproved, In re Estate
of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022). In that
case, this court held that a county court lacked authority to
tax costs and fees for the allegedly vexatious pursuit of a will
contest. In doing so, however, we noted that there was no pro-
vision in the Nebraska Probate Code relating to the assessment
of costs and attorney fees in a will contest action which had
been transferred to a district court and that there was a statute
authorizing the district court to order a party who pursued pro-
ceedings vexatiously or for delay to pay costs to the adverse
party. See In re Estate of Miller, supra citing Neb. Rev. Stat.
§ 24-541.10(2) (Reissue 1985).
In this case, unlike In re Estate of Miller, supra, Dickie is
not asking that an opposing party be ordered to pay his costs
on the grounds that the opposing party engaged in vexatious
litigation. As we have discussed, he has asked that he be reim-
bursed by the estate pursuant to § 30-2481. And that is not the
only difference between this case and In re Estate of Miller,
supra. While our opinion in In re Estate of Miller noted the
absence of a provision in the Nebraska Probate Code address-
ing the type of fees sought and a specific statute authorizing
the district court to order such fees, as we have discussed, the
- 579 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549Nebraska Probate Code has committed the determination of
whether a party is entitled to reimbursement under § 30-2481
to the county court.
Although we find that a party’s entitlement to reimburse-
ment under § 30-2481 is committed to the county court, we
recognize that during a will contest proceeding in district court,
the district court may have the occasion to, directly or indi-
rectly, weigh in on whether a nominated personal representa-
tive’s defense of the will contest was undertaken in good faith.
Nothing in this opinion should be read to preclude the county
court from considering any such statements along with the rest
of the district court record in assessing whether the proceeding
was defended in good faith.
For these reasons, we find that the district court lacked juris-
diction to find that Dickie was entitled to attorney fees pursu-
ant to § 30-2481. When we determine that we lack jurisdiction
over the decision of a lower court because the lower court
lacked jurisdiction, we have the power to vacate the void order
of the lower court and, if necessary, to remand the cause with
appropriate directions. See Davis v. Moats, 308 Neb. 757, 956
N.W.2d 682 (2021). We therefore vacate the portion of the dis-
trict court’s order finding that Dickie was entitled to attorney
fees and expenses pursuant to § 30-2481.
V. CONCLUSION
Because the district court lacked jurisdiction to enter its
order awarding attorney fees pursuant to § 30-2481, we vacate
that order and dismiss the cross-appeal. As to the issues raised
on appeal, we affirm.
Affirmed in part, and in part
vacated and dismissed.