In re Estate of Clinger

Decisions of the Nebraska Court of Appeals
692 22 NEBRASKA APPELLATE REPORTS
claims of ineffective assistance of counsel including a claim
that counsel was deficient in failing to timely file, or otherwise
timely perfect, a direct appeal, the district court shall make its
determination regarding the claim regarding the direct appeal,
including holding an evidentiary hearing if the court deter-
mines that an evidentiary hearing is necessary, prior to address-
ing the defendant’s other postconviction claims. We also note
that although the issue is not directly presented to us, judicial
economy would be best served by following this same proce-
dure in all postconviction cases where the district court deter-
mines that an evidentiary hearing is needed on one or more of
the defendant’s claims but not on other claims.
CONCLUSION
Based on our ruling, we find that the district court erred
in ruling on the balance of Determan’s postconviction claims
prior to holding an evidentiary hearing on his entitlement
to a new direct appeal, and therefore, the decision of the
district court denying Determan’s motion for postconviction
relief without an evidentiary hearing on his second, third, and
fourth claims is vacated and this cause is remanded for fur-
ther proceedings.
Judgment vacated, and cause remanded
for further proceedings.
In re Estate of Mary Ann Clinger, deceased.
Orin M. Clinger et al., appellants, v.
Shaun Clinger, Personal R epresentative
of the Estate of M ary A nn Clinger,
deceased, et al., appellees.
___ N.W.2d ___
Filed January 27, 2015. No. A-13-769.
1. Rules of the Supreme Court: Appeal and Error. A party filing a cross-appeal
must set forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 693
Cite as 22 Neb. Ct. App. 692
2. ____: ____. The cross-appeal section must set forth a separate title page, a table
of contents, a statement of the case, assigned errors, propositions of law, and a
statement of facts.
3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
4. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
5. Wills: Proof. In a contested case, the proponents of a will have the burden of
establishing prima facie proof of testamentary capacity.
6. Wills: Words and Phrases. One possesses testamentary capacity if she under-
stands the nature of her act in making a will or a codicil thereto, knows the extent
and character of her property, knows and understands the proposed disposition of
her property, and knows the natural objects of her bounty.
7. Wills: Proof. Prima facie proof of a testator’s testamentary capacity is estab-
lished by the introduction of a self-proved will.
8. ____: ____. Prima facie proof of a testator’s testamentary capacity is rebuttable
with competent evidence to the contrary.
9. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
10. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
11. Trial: Evidence: Appeal and Error. A trial court’s determination of the rel-
evancy and admissibility of evidence must be upheld in the absence of abuse
of discretion.
12. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
13. Rules of Evidence: Hearsay: Words and Phrases. A “statement,” for purposes
of the Nebraska Evidence Rules, is an oral or written assertion or nonverbal con-
duct of a person, if it is intended by him as an assertion.
14. Rules of Evidence: Hearsay. A statement of the declarant’s then existing state of
mind is excluded from the hearsay rule.
15. Trial: Evidence: Jury Instructions. Where evidence is admissible for some
purposes, but not for others, a limiting instruction directing the jury for
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which purpose the evidence can be considered does not constitute an abuse
of discretion.
16. Trial: Witnesses. While the right to cross-examine a witness is an essential and
fundamental requirement of a fair trial, it is not absolute.
17. Trial: Juries: Evidence. The jury should not have unrestricted review of a testi-
monial exhibit.
18. ____: ____: ____. Courts have broad discretion in allowing the jury unlimited
access to properly received exhibits that constitute substantive evidence.
19. Trial: Testimony: Evidence. Neb. Rev. Stat. § 25-1240 (Reissue 2008) provides
four modes by which testimony of witnesses can be taken, including by affidavit,
deposition, oral examination, and video recording of an examination conducted
prior to the time of trial for use at trial in accordance with procedures provided
by law.
20. Wills: Undue Influence: Proof. In a will contest case in which undue influence
is claimed, the 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.
21. Wills: Undue Influence: Presumptions. A presumption of undue influence
exists if the contestant’s evidence shows a confidential or fiduciary relationship,
coupled with other suspicious circumstances.
22. Wills: Undue Influence: Presumptions: Evidence: Proof. Once the contestant
meets its burden of proving the presumption of undue influence, the proponents
of the will must rebut the presumption that arises by producing evidence that
there was no undue influence, and once they do so, the presumption disappears.
23. Wills: Undue Influence: Presumptions: Evidence. The presumption of undue
influence in a will contest case is not an evidentiary presumption.
24. Presumptions: Proof. Under the “bursting bubble” theory of presumptions, when
evidence is introduced to rebut the presumption, the presumption disappears and
the burden of proof or persuasion does not shift.
25. Courts: Juries. The decision whether to reply to questions from the jury regard-
ing the applicable law is entrusted to the discretion of the trial court.
26. ____: ____. The court can, in the exercise of its discretion, refuse to reply to a
question from the jury regarding the applicable law.
Appeal from the District Court for Custer County: Mark D.
Kozisek, Judge. Affirmed.
Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellants.
Steven P. Vinton, of Bacon & Vinton, L.L.C., for appellee
Shaun Clinger.
George G. Vinton for appellees Calvin Clinger and Patricia
Clinger.
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 695
Cite as 22 Neb. Ct. App. 692
Moore, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Orin M. Clinger, Mary E. Chalupa, Melvina D. Bundy, and
Sandra A. Goodwater (collectively the contestants) appeal and
Shaun Clinger, Calvin Clinger, and Patricia Clinger (collec-
tively the proponents) attempt to cross-appeal from the order
of the district court for Custer County which found that the
will of Mary Ann Clinger dated February 18, 2011, was valid.
On appeal, the contestants argue that the district court erred
in directing a verdict on the issue of testamentary capacity,
playing a video for the jury and allowing it into the jury room,
refusing their proposed jury instructions, and responding to a
question from the jury. We conclude that the court did not err
in its decisions and therefore affirm.
BACKGROUND
Mary Ann and her husband, Melvin Clinger, were the par-
ents of six children: Mary Chalupa, Sandra Goodwater, LeRoy
Clinger, Orin Clinger, Calvin Clinger, and Melvina Bundy.
Mary Ann and Melvin owned a 320-acre farm near Ansley,
Nebraska, and all of the children worked on the farm while
growing up. In November 1997, Melvin and Mary Ann entered
into a written lease agreement to rent the farm to their son
Calvin for annual rent of $24,000. At the time, the rent was the
farm’s only source of income. Melvin died on January 1, 1998,
and in February, Mary Ann and Calvin entered into a new lease
agreement which decreased the annual rent to $19,580.
In 2000, the contestants became concerned about Mary
Ann’s financial situation. Mary Ann complained to her doc-
tor that she was under a lot of stress and unable to pay her
bills because Calvin was not making his rent payments. She
received a foreclosure notice from one of her creditors and
feared she would lose the farm. The contestants then initiated
a conservatorship action because of their concerns about Mary
Ann’s ability to control her own finances.
A guardian ad litem was appointed temporarily, and accord-
ing to him, Mary Ann’s finances were “a mess” because Calvin
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was not paying any farm or machinery rent to her. Not only
was there no income coming in, but Mary Ann was also pay-
ing all of the farming expenses that should have been paid
by Calvin. In addition to the financial concerns, there were
concerns raised about Calvin’s influence over Mary Ann. The
guardian ad litem felt that Calvin was living off of Mary
Ann’s existence at that time. In January 2001, a permanent
conservator was appointed. Mary Ann was very upset with
the contestants because she did not think the conservatorship
was necessary.
On August 24, 2001, Mary Ann executed a will, in which
she left the entire farm to Calvin. The execution of the will
was recorded. In the video, the attorney who drafted the 2001
will asked Mary Ann questions about herself, her family, the
property she owned, and the will. He specifically asked her
whether Calvin or anyone else influenced the making of the
will, and she said no.
Over the next 10 years after the will was executed, Mary
Ann’s physical health deteriorated. In January 2011, she was
diagnosed with lung cancer, and the medical plan from that
point was to keep her comfortable. She was prescribed numer-
ous medications, including at least five narcotics with possible
side effects of sedation, confusion, dizziness, and disorienta-
tion. Mary Ann’s doctor, however, did not detect in Mary
Ann any of the potential side effects of the medications. He
observed that Mary Ann was able to communicate and partici-
pate in her care at the time and that despite being limited by
her body, she was still mentally “sharp.” Mary Ann’s physician
never saw any signs of dementia in her, and she retained the
ability to understand what property she owned, who her chil-
dren were, and what she was doing.
Also in January 2011, Mary Ann asked Calvin to draft a
new will for her. She made changes in the percentages each
child received, as well as in the disposition of some Bibles
and her wedding ring. But the disposition of property was
similar to that of the August 2001 will in that Mary Ann
left the entire farm to Calvin and divided her home and per-
sonal property among her other five children. Mary Ann’s
attorney at the time, Steve Herman, was concerned that
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 697
Cite as 22 Neb. Ct. App. 692
the January 2011 will was drafted by a layperson and that
he knew nothing about its execution; therefore, he recom-
mended that Mary Ann execute a new will. Because of Mary
Ann’s failing health, Herman went to Mary Ann’s house on
February 17, 2011, to discuss the new will he was drafting for
her. According to Herman, Mary Ann clearly knew that she
wanted to make a will and understood the making of the will.
Mary Ann discussed her relationship with her children and
assured Herman that the proposed distribution of her assets
was what she wanted.
On February 18, 2011, Herman’s law partner and two of
his staff members went to see Mary Ann to execute the will.
When they arrived, Mary Ann recognized them, called them by
name, and knew why they were there. According to Herman’s
law partner, Mary Ann’s physical condition was weaker than
it had been previously, but she was still thinking clearly and
displayed her usual good sense of humor. He asked Mary Ann
about every provision in the will, and she provided commen-
tary on why she wanted her assets disposed of the way she did.
He said that Mary Ann’s medications did not seem to affect her
ability to think clearly, and he “absolutely” believed that Mary
Ann understood the nature of her acts at the time. Thus, the
will was executed that day.
The February 2011 will left the entire 320 acres of farm-
land to Calvin. The proceeds from the sale of her house and
its contents were to be divided among her other five children,
and the remainder of the estate was also to go to Calvin. The
will specified that Mary Ann was aware the devise to Calvin
was substantially more valuable than the devise to the other
children, but that she was intentionally making those devises
to reflect Calvin’s dedication and service to her throughout the
years. The will was signed and dated February 18, 2011.
Mary Ann died on March 5, 2011. On March 7, a peti-
tion was filed to admit the February 18 will to probate and
appoint a personal representative. The contestants filed an
answer and objection to the petition, claiming that the will was
invalid because Mary Ann lacked testamentary capacity and
the devises were the result of undue influence. An amended
petition was filed on May 10, 2012.
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A jury trial on the issues of testamentary capacity and undue
influence was held in July and August 2013. The testimony
generally established that although Mary Ann’s physical health
declined, she always retained her mental clarity, understand-
ing, and ability to recognize and converse with various people.
There was contradicting evidence presented as to whether
Calvin improperly influenced Mary Ann or whether she sim-
ply favored him because of his assistance with the farm and
support of her with respect to the conservatorship. The video
of the will execution of August 2001 was received into evi-
dence at trial as evidence solely on the issue of testamentary
capacity, and the jury was given a limiting instruction not
to consider the video on the issue of undue influence. The
video was played for the jury and sent into the jury room dur-
ing deliberation.
After the contestants rested, the proponents moved for a
directed verdict on testamentary capacity and undue influ-
ence. The court denied the motion on the issue of undue influ-
ence, but granted the motion for directed verdict on testamen-
tary capacity.
During the jury instruction conference, the contestants
offered proposed instructions regarding a presumption of
undue influence, which instructions the court declined to give.
While the jury was deliberating, it posed a question to the court
regarding the burden of proof. The court’s response referred
the jury back to its prior jury instruction on the burden of
proof. Ultimately, the jury found that the will was not the result
of undue influence and that therefore it was valid. This timely
appeal followed.
ASSIGNMENTS OF ERROR
On appeal, the contestants assign that the district court erred
in (1) sustaining the motion for directed verdict on the issue
of testamentary capacity, (2) allowing the video of Mary Ann
to be played for the jury, (3) allowing the video to be taken
back to the jury room, (4) refusing to instruct the jury as to
the presumption of undue influence, and (5) its response to the
question from the jury.
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 699
Cite as 22 Neb. Ct. App. 692
The proponents also attempted to cross-appeal on the
court’s refusal to grant a directed verdict on the issue of
undue influence.
ANALYSIS
Cross-Appeal.
[1,2] We first dispose of the proponents’ attempted cross-
appeal on the court’s refusal to grant a directed verdict on the
issue of undue influence. We do not reach the merits of their
assertion because they failed to follow the requirements for
asserting a cross-appeal. A party filing a cross-appeal must
set forth a separate division of the brief prepared in the same
manner and under the same rules as the brief of appellant.
Vokel v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988,
759 N.W.2d 75 (2009). Thus, the cross-appeal section must set
forth a separate title page, a table of contents, a statement of
the case, assigned errors, propositions of law, and a statement
of facts. Id. The proponents’ separate section entitled “Brief
on Cross Appeal” contains nothing more than a one-paragraph
argument. Parties wishing to secure appellate review of their
claims for relief must be aware of, and abide by, the rules
of the Nebraska appellate courts in presenting such claims.
See id. Therefore, we do not consider the merits of the pur-
ported cross-appeal.
Directed Verdict on
Testamentary
Capacity.
[3,4] The contestants claim that the district court erred in
directing a verdict on the issue of testamentary capacity. In
reviewing a trial court’s ruling on a motion for directed ver-
dict, an appellate court must treat the motion as an admission
of the truth of all competent evidence submitted on behalf
of the party against whom the motion is directed. Wulf v.
Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013). The party
against whom the motion is directed is entitled to have every
controverted fact resolved in its favor and to have the benefit
of every inference which can reasonably be deduced from the
evidence. Id. A directed verdict is proper at the close of all the
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700 22 NEBRASKA APPELLATE REPORTS
evidence 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. Id.
[5,6] In a contested case, the proponents of a will have
the burden of establishing prima facie proof of testamentary
capacity. See, Neb. Rev. Stat. § 30-2431 (Reissue 2008); In re
Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001). One
possesses testamentary capacity if she understands the nature
of her act in making a will or a codicil thereto, knows the
extent and character of her property, knows and understands
the proposed disposition of her property, and knows the natural
objects of her bounty. In re Estate of Wagner, 246 Neb. 625,
522 N.W.2d 159 (1994).
[7,8] Prima facie proof of a testator’s testamentary capacity
is established by the introduction of a self-proved will. In re
Estate of Stephens, 9 Neb. Ct. App. 68, 608 N.W.2d 201 (2000).
Such prima facie proof is rebuttable with competent evidence
to the contrary. Id.
In the present case, the contestants admit that the February
2011 will qualifies as a self-proved will and that therefore the
proponents satisfied their initial burden of proof. They argue,
however, that the evidence that, at the time the will was exe-
cuted, Mary Ann was taking so many medications with numer-
ous side effects supports a reasonable inference she lacked
testamentary capacity.
The evidence presented at trial did, in fact, establish that
Mary Ann was taking numerous potent medications with
potential side effects. Contrary to the contestants’ claim, how-
ever, there was no evidence that Mary Ann actually suffered
from any of those side effects. Mary Ann’s treating physician
specifically testified that he did not observe any of the poten-
tial side effects of the medications in Mary Ann. The last time
he saw her, in late January 2011, she still had the ability to
understand what property she owned, who her children were,
and what she was doing. Similarly, according to the witnesses
present at the execution of the will, Mary Ann was able to
think clearly, knew what she was doing, recognized everyone
and called them by name, provided commentary on the con-
tents of her will, and gave reasoning for the disposition of
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 701
Cite as 22 Neb. Ct. App. 692
her property. There was no evidence presented that Mary Ann
lacked the requisite awareness or understanding at the time the
will was executed. Accordingly, the district court did not err
in granting the proponents’ motion for directed verdict on the
issue of testamentary capacity.
Video.
The contestants claim that the district court committed
reversible error when it admitted into evidence the video
of Mary Ann’s executing the 2001 will and allowed it to be
played for the jury. They claim that the video was cumula-
tive, its probative value was substantially outweighed by its
prejudicial effect, and its admission violated their rights to
cross-examine witnesses against them. They claim that it was
hearsay to which no exception applies. We disagree.
[9-11] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
When the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of dis-
cretion. Erickson v. U-Haul Internat., 278 Neb. 18, 767 N.W.2d
765 (2009). A trial court’s determination of the relevancy and
admissibility of evidence must be upheld in the absence of
abuse of discretion. Id.
[12,13] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted. Neb. Rev. Stat.
§ 27-801(3) (Reissue 2008). A statement is defined as an oral
or written assertion or nonverbal conduct of a person, if it is
intended by him as an assertion. § 27-801(1).
[14] The attorney who drafted the 2001 will and recorded
its execution testified that he was “fairly certain” there was
going to be a will contest so he went through the preliminary
questioning of Mary Ann as to intent before she executed the
will and had it video recorded. The video therefore contained
assertions made by Mary Ann that would constitute hearsay if
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702 22 NEBRASKA APPELLATE REPORTS
no exception applies. However, Neb. Rev. Stat. § 27-803(2)
(Reissue 2008) excludes the following from the hearsay rule:
A statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates
to the execution, revocation, identification, or terms of
declarant’s will.
We conclude that the video of Mary Ann’s executing her
will and containing responses to questions posed at that
time regarding her state of mind is an exception to the hear-
say rule and that the video was therefore properly admitted
as evidence. However, toward the end of the video, Mary
Ann responded to questions regarding undue influence. These
statements, if offered for the truth of the matter asserted,
would be hearsay. The district court addressed this issue by
instructing the jury that it was not to consider the video to
show influence or lack thereof, but only state of mind and
testamentary capacity.
[15] The contestants claim that this limiting instruction
was ineffective because the probative value of the video was
substantially outweighed by the likelihood of unfair preju-
dice under Neb. Rev. Stat. § 27-403 (Reissue 2008). They
claim that because Mary Ann denied in the video that she
was unduly influenced by anyone, even a limiting instruc-
tion could not “‘unring the bell.’” Brief for appellants at 42.
The Nebraska Supreme Court has held, however, that where
evidence is admissible for some purposes, but not for others,
a limiting instruction directing the jury for which purpose
the evidence can be considered does not constitute an abuse
of discretion. See, e.g., Shipler v. General Motors Corp.,
271 Neb. 194, 71 N.W.2d 807 (2006) (approving admission
of evidence of similar incidents for purpose of considering
defective design and knowledge of manufacturer, but for no
other purpose); Ford v. Estate of Clinton, 265 Neb. 285, 656
N.W.2d 606 (2003) (approving of admission of evidence with
limiting instruction).
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 703
Cite as 22 Neb. Ct. App. 692
Our review of the record leads us to conclude that it was not
an abuse of discretion for the district court to admit the video
as evidence of Mary Ann’s state of mind and play it for the
jury, with the limiting instruction given.
The contestants also argue that the video is cumulative of
other evidence proffered by the proponents. However, the
jury had not observed nor heard, firsthand, from Mary Ann.
The video was evidence of her state of mind and testamentary
capacity on the date the 2001 will was signed. We therefore
reject this assertion.
[16] Finally, the contestants claim that the admission of the
video violated their right to cross-examine a witness. While
the right to cross-examine a witness is an essential and funda-
mental requirement of a fair trial, see State v. Kuehn, 273 Neb.
219, 728 N.W.2d 589 (2007), it is not absolute, see State v.
Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993) (holding crimi-
nal defend­ant was not denied right to cross-examination when
hearsay statement made by woman later murdered was offered
into evidence because statement fell within exception to hear-
say rule). Section 27-803 and Neb. Rev. Stat. § 27-804(2)
(Reissue 2008) provide various situations in which out-of-court
statements are admitted as evidence without the declarant being
available to testify at trial. As evidenced by § 27-804(2)(e), the
touchstone for admission of an out-of-court statement from
an unavailable witness is the guarantee of trustworthiness.
Therefore, where guarantees of trustworthiness exist, cross-
examination of a declarant in a civil case may not be required
if the statement sought to be introduced falls within a statutory
exception. As stated above, because the present state-of-mind
exception allowed admission of the video, and the court prop-
erly gave a limiting instruction as to the purpose for which it
could be considered, the contestants were not denied their right
to cross-examination. We conclude that the district court did
not abuse its discretion when it allowed the video into evidence
and played it for the jury.
The contestants further claim that the district court erred in
allowing the video into the jury room during deliberations. The
record does not affirmatively show that the video was taken
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704 22 NEBRASKA APPELLATE REPORTS
into the jury room, but both parties concede that it was. We
have no indication, however, that the jury had the necessary
equipment to replay the video. See State v. Dixon, 259 Neb.
976, 614 N.W.2d 288 (2000), disapproved on other grounds,
State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012) (in which
jury requested playback equipment). Furthermore, we find
nowhere in the record where contestants objected to the video’s
being taken into the jury room. Notwithstanding the absence of
any indication that the jury replayed the video, we proceed to
address the assigned error.
[17-19] The Nebraska Supreme Court has stated that the jury
should not have unrestricted review of a testimonial exhibit.
State v. Dixon, supra. As to nontestimonial evidence, however,
the courts have broad discretion in allowing the jury unlimited
access to properly received exhibits that constitute substan-
tive evidence. State v. Vandever, 287 Neb. 807, 844 N.W.2d
783 (2014). In Vandever, the Supreme Court noted that Neb.
Rev. Stat. § 25-1116 (Reissue 2008) provides a procedure
for a deliberating jury to request the court to assist it when
a disagreement arises among the jurors as to the testimony
presented. The court distinguished between a determination
of “whether evidence is ‘testimony’ for purposes of § 25-1116
[and a] determination of whether a statement is ‘testimo-
nial’ for purposes of Confrontation Clause analysis.” State v.
Vandever, 287 Neb. at 815-16, 844 N.W.2d at 790. In doing so,
it noted that Neb. Rev. Stat. § 25-1240 (Reissue 2008) provides
four modes by which testimony of witnesses can be taken,
including by affidavit, deposition, oral examination, and video
recording of an examination conducted prior to the time of trial
for use at trial in accordance with procedures provided by law.
The court concluded that
“testimony” for purposes of § 25-1116 encompasses evi-
dence authorized as “testimony” under § 25-1240, that is,
as live testimony at trial by oral examination or by some
substitute for live testimony, including but not limited to,
affidavit, deposition, or video recording of an examina-
tion conducted prior to the time of trial for use at trial.
For completeness, we note that videotaped depositions
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IN RE ESTATE OF CLINGER 705
Cite as 22 Neb. Ct. App. 692
are statutorily included in the definition of “deposition”
in § 25-1242.
State v. Vandever, 287 Neb. at 816-17, 844 N.W.2d at 790.
The Vandever court concluded that the proposed evidence,
an audio recording of an investigator’s interview of the defend­
ant, was not testimonial because it was not prepared as or
admitted into evidence as a substitute for live testimony at trial.
According to the Vandever court, the audio recording “was not
‘an examination conducted prior to the time of trial for use at
trial in accordance with procedures provided by law.’” Id. at
817, 844 N.W.2d at 791.
Likewise, we determine that the video of Mary Ann execut-
ing her will was not “an examination conducted prior to the
time of trial for use at trial in accordance with procedures pro-
vided by law.” See § 25-1240. Rather, the video shows Mary
Ann responding to preliminary questions from her attorney
to establish testamentary capacity before executing her will.
And while her attorney testified that he video recorded the
execution because he anticipated a will contest, the questions
he posed to her did not constitute an examination for use at
trial “in accordance with procedures provided by law.” See
id. Therefore, the video was nontestimentary evidence and the
trial court had broad discretion in allowing the jury unlimited
access to it during deliberations.
In light of the limiting instruction given to the jury that it
was not to consider the video for any purpose other than testa-
mentary capacity, an issue on which the trial court ultimately
directed a verdict in favor of the proponents, we find no abuse
of discretion in allowing the jury access to the video during
its deliberations.
Jury Instructions.
The contestants argue that the district court erred in fail-
ing to give their proposed jury instructions regarding undue
influence. In a proposed instruction regarding the statement
of the case, the contestants sought to instruct the jury that a
presumption of undue influence existed because Calvin and/
or his wife, Patricia, had a confidential relationship with
Decisions of the Nebraska Court of Appeals
706 22 NEBRASKA APPELLATE REPORTS
Mary Ann, which was coupled with suspicious circumstances.
In a later proposed instruction, the contestants sought to have
the jury instructed as follows:
In connection with this claim of undue influence, the
burden is on contestants to establish facts which show
that a confidential relationship existed between Mary
Ann . . . and her son, Calvin . . . , and/or his wife,
Patricia . . . , and the existence of suspicious circum-
stances. If such facts are established, a presumption of
undue influence arises and the burden of going forward
with the evidence to rebut the presumption then shifts to
the proponent[s].
The proponent[s] may rebut this presumption by evi-
dence which shows that there was no undue influence or
by evidence which shows that Mary Ann . . . had compe-
tent independent advice and that [the will] was her own
voluntary act.
The district court rejected the proposed jury instructions and
instead instructed the jury that the burden of proving undue
influence was on the contestants, without any reference to the
presumption of undue influence that may arise. The district
court stated that the proposed instructions would impermis-
sibly shift the burden of proof from the contestants to the
proponents. The contestants argue that the refusal to give their
requested instructions was error. We disagree.
[20,21] In a will contest case in which undue influence is
claimed, the 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 exer-
cise such influence; and (4) the result was clearly the effect
of such influence. In re Estate of Hedke, 278 Neb. 727, 775
N.W.2d 13 (2009). The Nebraska Supreme Court has recog-
nized a presumption of undue influence if the contestant’s evi-
dence shows a confidential or fiduciary relationship, coupled
with other suspicious circumstances. Id. Those circumstances
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,
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IN RE ESTATE OF CLINGER 707
Cite as 22 Neb. Ct. App. 692
(3) an elderly testator in weakened physical or mental condi-
tion, (4) lack of consideration for the bequest, (5) a disposi-
tion that is unnatural or unjust, (6) the beneficiary’s participa-
tion in procuring the will, and (7) domination of the testator
by the beneficiary. Id.
[22] Once the contestant meets this burden of proof, the
proponents of the will must rebut the presumption that arises
by producing evidence that there was no undue influence. Once
they do so, the presumption disappears. See id.
[23,24] While the Nebraska Supreme Court has recognized
a “presumption” of undue influence in a will contest case,
it has also recognized that it is not an evidentiary presump-
tion. See McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d
234 (1977). Rather, the presumption of undue influence falls
under the ambit of the “bursting bubble” theory of presump-
tions which holds that when evidence is introduced to rebut
the presumption, the presumption disappears and the burden
of proof or persuasion does not shift. Id. In dealing with this
type of presumption, the trial court need only determine that
the evidence introduced in rebuttal is sufficient to support a
finding contrary to the presumed fact. If that determination is
made, there is no need to instruct the jury on the presumption.
2 McCormick on Evidence § 344 (Kenneth S. Broun et al. eds.,
7th ed. 2013).
In the present action, the contestants presented evidence that
could support a finding of a confidential relationship coupled
with suspicious circumstances. For example, Mary Ann moved
in with Calvin and Patricia in January 2009 because of her
declining health and lived with them until her death. Some of
Mary Ann’s other children felt as though they were not wel-
come in Calvin’s home to visit Mary Ann. In addition, there
was testimony that Mary Ann was adamant she did not want
to pay someone to care for her because it was too expensive.
However, the contestants admitted into evidence checks writ-
ten on Mary Ann’s account in 2009 and 2010 to Calvin and
Patricia, separately, totaling more than $15,000.
The proponents then offered evidence to rebut this pre-
sumption. Orin, Goodwater, and Bundy admitted that they
did, in fact, visit Mary Ann when she was living with Calvin.
Decisions of the Nebraska Court of Appeals
708 22 NEBRASKA APPELLATE REPORTS
Patricia testified that she is a licensed practical nurse and that
Mary Ann would write her checks to reimburse her for the
care she was providing because it was less expensive than
paying for a nursing home. Further, during the time that Mary
Ann lived with Calvin and Patricia, she had her own attorney,
with whom she would meet and speak alone, without Calvin
or anyone else present. The undisputed evidence established
that Mary Ann maintained her mental health until the time
of her death, and the proponents offered evidence indicating
that Mary Ann repeatedly explained her displeasure with the
contestants over the conservatorship and her desire to leave
the farm to Calvin because of his assistance to her during
her lifetime.
Once the proponents offered their rebuttal evidence, the
presumption disappeared and there was no basis upon which
the district court should have instructed the jury on the pre-
sumption because the presumption no longer existed. See In re
Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009) (stating
that where evidence appears to rebut presumption, presump-
tion disappears, and burden of proof remains on party assert-
ing issue). See, also, Cappuccio v. Prime Capital Funding
LLC, 649 F.3d 180 (3d Cir. 2011) (holding that as matter
of good practice, where party has produced sufficient facts
to rebut presumption in civil case, and it drops out of case,
trial court should avoid references to such presumption in
its instructions).
To establish reversible error from a court’s failure to give
a requested jury instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. Hike v. State, 288
Neb. 60, 846 N.W.2d 205 (2014). While the contestants’ ten-
dered instructions contained correct statements of the law,
they were not warranted by the evidence because once the
proponents offered rebuttal evidence, the presumption disap-
peared. Since the burden of proof remained on the contestants
to prove undue influence, and because the jury instructions
given properly placed this burden on the contestants, they
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF CLINGER 709
Cite as 22 Neb. Ct. App. 692
were not prejudiced by the court’s failure to give the ten-
dered instructions.
Jury Question.
The contestants contend that the district court erred in its
response to the question from the jury. The proponents argue
that this claim is waived because the contestants failed to
object to the court’s response at the time.
During deliberation, the jury asked a question about the bur-
den of proof in the case. When discussing the question with the
parties’ counsel, the court proposed simply referring the jury
back to the jury instructions. The contestants requested that the
court provide further explanation. After a suggestion from the
proponents, the court proposed referring the jury to the specific
instruction that defined the burden of proof, to which counsel
for the contestants replied, “I don’t have any problem with that
part, Your Honor.”
The proponents contend that because the contestants acqui-
esced to the proposed response, they are prohibited from now
challenging it on appeal. We do not find that the contestants
agreed to the court’s proposed response. In discussing the
court’s response, counsel for the contestants argued that the
jurors’ question indicated that they were confused on the
proper burden of proof. The court replied that although they
might be confused, the court was going to tell them to refer
back to the instructions because the burden of proof is defined.
Counsel for the contestants then replied, “Well, I mean, that’s
my input, Your Honor. I think that it needs to be defined fur-
ther, but I understand that that’s your instruction.” The court
then offered to specifically refer the jury back to the instruc-
tion on the burden of proof and asked whether counsel had
“[a]ny problem with that?” Counsel for the contestants then
responded that he did not have any problem with “that part.”
We interpret this exchange as the contestants’ making their
argument for further explanation, but when the court indicated
that it was not willing to do so, the contestants essentially took
what they could get by agreeing to the more detailed response.
Therefore, because the waiver was not clear and unequivo-
cal, we will address the merits of this assignment of error.
Decisions of the Nebraska Court of Appeals
710 22 NEBRASKA APPELLATE REPORTS
See Katskee v. Nevada Bob’s Golf of Neb., 238 Neb. 654, 472
N.W.2d 372 (1991) (to establish waiver of legal right, there
must be clear, unequivocal, and decisive action by party which
demonstrates such purpose).
The contestants claim that the district court erred in its
response to the jury’s question, because the jury was clearly
confused on the proper burden of proof and because simply
referring them back to the very instruction from which their
confusion stemmed substantially impaired the contestants’ right
to a fair trial. We disagree and find no abuse of discretion in
the district court’s response.
[25,26] The decision whether to reply to questions from the
jury regarding the applicable law is entrusted to the discretion
of the trial court. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007), abrogated on other grounds, State v. Thorpe, 280
Neb. 11, 783 N.W.2d 749 (2010). The court can, in the exercise
of its discretion, refuse to reply to a question from the jury
regarding the applicable law. See State v. Neujahr, 248 Neb.
965, 540 N.W.2d 566 (1995) (trial court did not abuse its dis-
cretion by referring jury to instructions given when jury raised
question adequately covered by those instructions).
In the present case, the jury asked the court, “Please explain
the difference between Burden of Proof: Greater weight of the
Evidence is not the same as having shadow of doubt?” The
court responded that the jury should refer back to instruction
No. 7, which provided:
A. GREATER WEIGHT OF THE EVIDENCE: Any
party who has the burden of proving a claim must do so
by the greater weight of the evidence.
(1) The greater weight of the evidence means evidence
sufficient to make a claim more likely true than not true.
It does not necessarily mean the greater number of wit-
nesses or exhibits.
(2) Any party is entitled to the benefit of any evidence
tending to establish a claim, even though such evidence
was introduced by another.
(3) If the evidence upon a claim is evenly balanced, or
if it weighs in favor of the other party, then the burden of
proof has not been met.
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IN RE ESTATE OF CLINGER 711
Cite as 22 Neb. Ct. App. 692
B. Where two inferences may be drawn from the facts
proved, which inferences are opposed to each other but
are equally consistent with the facts proved, a party
having the burden of proof on an issue may not meet
that burden by relying solely on the inference favoring
that party.
Instruction No. 7 is a correct statement of the law. See,
NJI2d Civ. 2.12A; NJI2d Civ. 16.06. Because the question
raised by the jury was adequately covered by the instruc-
tion given, the district court did not abuse its discretion
by referring the jury to the instructions and declining fur-
ther explanation.
CONCLUSION
We find no error in the district court’s decisions and there-
fore affirm the judgment.
Affirmed.