Nebraska Supreme Court reverses Cass County Court probate order to sell estate property at a public sale; Supreme Court, J Wright, allows private listing with commercial real estate broker first before heirs can ask county court judge to order public auction. In re Estate of Failla, S-09-170, 278 Neb. 770 "The evidence supports the conclusion that Diana should first attempt to sell the property by listing it at its appraised value. The county court is given discretion to determine how long the listing should continue. If this method of sale does not prove satisfactory, the court should direct that the property be sold at a public sale.?

Nebraska Supreme Court scolds attorney who handled a deceased's revised estate plans on eve of her death for not acting independently from the deceased's son whom the Supreme Court found to have exercised undue influence over her. In re Estate of Hedke, S-08-980, 278 Neb. 727. Supreme Court Justice William Connolly reverses finding from the District Court of no undue influence when he found likely collusion between deceased's son and his personal attorney who took over deceased mother's estate planning and drafted a will and trust that benefited the son over the mother's daughter who lived in Arizona. Glad to see the Supreme Court ruling against children who decide to stay on the farm so that the child who moved out to a warm weather state could get a fair break. Also even though the mother and son lived in a sparsely populated area of the state, the Court suggests that they should go to greater lengths to find the lawyer who did the mother's first will instead of using the lawyer the son used for other legal work. Charles and Rogers also failed to provide Leona with information that would have permitted her to compare her new estate plan with her previous intentions in her earlier will. Rogers’ billing statements and Charles’ testimony showed that Charles was involved in the planning of Leona’s new estate plan. Yet, he admitted that he did not explain to Leona that her new estate plan would effectively disinherit Dolores. Rogers told Leona that her medical expenses could deplete her cash assets if she lived a long time. But he did not discuss the money in her accounts at that time. Most important, neither Charles nor Rogers informed Leona that Charles had found her old will and that there were substantial differences. Nor did Leona have independent legal advice from an attorney solely dedicated to her interests. Despite her age, her infirmity, and allegations of Charles’ theft, Rogers did not attempt to determine whether a conservatorship might be in Leona’s best interests. He admitted that he did not explain to Leona that Dolores believed Charles was misappropriating her assets. And, at trial, Charles admitted that that he had used trust funds for his benefit without authorization. We note that Rogers now represents Charles in this appeal. He argued Charles’ case before this court. Rogers also failed to independently verify Leona’s competency by asking her questions about her assets or speaking to her physician to determine if a guardianship or conservatorship was necessary. To the contrary, he successfully continued the competency hearing scheduled for December 15, 2004, until January 12, 2005, after Leona had executed new estate plan documents. Although Leona had told Rogers that she wanted to divide her property as her father had and that she did not know where her earlier will was, he did not verify that the differences in the new will represented her wishes. On this record, Rogers’ testimony that Leona was not mentally impaired rings hollow. The evidence was sufficient to support a judgment for Dolores if unrebutted. The evidence clearly showed that Leona was subject to Charles’ undue influence and that he had the opportunity to exercise such influence. The court’s finding that Charles had engaged in self-dealing while he was Leona’s attorney in fact and trustee established his disposition to exercise such influence. Finally, even if Leona could have understood that she was disinheriting Dolores, the evidence showed that she would not have done so but for Charles’ ability to turn Leona against Dolores.

Deceased's nephew loses appeal in Nebraska Supreme Court of will contract complaint in Madison County District Court. Uncle had turned over his estate to female friend who was a very good financial advisor about two years before his death. Nephew could not prove any will or writing existed in which the uncle would have promised not to disinherit him. Johnson v. Anderson, S-08-811, 278 Neb. 500 Section 30-2351 specifically states that the only way to prove the existence of a contract to make a will or not to revoke a will or devise is by satisfying one of the three subsections. Considering the evidence in the light most favorable to Roger, there is no will or signed writing that satisfies § 30-2351. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment. Recio v. Evers, ante p. 405, ___ N.W.2d ___ (2009); Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65 (2006). Therefore, the evidence did not warrant the imposition of a constructive trust on Aner’s estate

Land contract or contract for deed transactions are non probate transfers and thus are not part of the deceased's estate under Section 30-2715 RRS Neb.Clark v. Clark, S-06-1254, 275 Neb. 276. Deceased's son held one half of the rights to a land contract with escrowed deed. Nebraska Supreme Court affirms judgment for son for unpaid land contract payments. "a seller in a land contract retains the title as security for the unpaid purchase money and has an equitable lien on the land to the extent of the debt, a seller has, for all intents and purposes, a purchase-money mortgage.” A ccordingly, we conclude that the transfer to Dale of one-half of the balance remaining under the agreement was a non probate transfer within the meaning of § 30-2715.

Nebraska Supreme Court reverses Douglas County Court twice in one week again from probate cases. In re Trust Created by Isvik, S-06-420, 274 Neb. 525 In re Guardianship & Conservatorship of Cordel, S-06-591, 274 Neb. 545 Douglas County Court probate cases seem to get more than their share of reversals from the Nebraska Supreme Court. Isvik: the Supreme Court reverses the Douglas County Court's "reforming" a settlor's written revocation of a trust 2 weeks before her death to change it to a trustee replacement. Also the Supreme Court refused to dismiss the settlor's estate's appeal even though it failed to have an appropriate supersedeas undertaking on time after appealing. Cordel: Supreme Court allows parent of incapacitated adult to intervene to object to an $80000 trustee fee.

Nebraska Supreme Court nixes North Carolina pig breeder's claim against hog farmers estate. The breeders officers mistakenly signed where the hog farm's principal should have signed to guarantee the farms breeding stock debts. Court affirms Gage County Probate Court's ruling that there was no guaranty agreement either by reforming the erroneously signed document nor by finding that the guaranty was the "leading object" of the agreement between the farm and breeder, so the court would not excuse the writing requirement of the statute of frauds (§ 36‑202(2) (Reissue 2004)). In re Estate of Dueck, S-06-538there was no written guaranty agreement between the parties. In the absence of a written agreement between GIS and Dueck, there was nothing to reform The leading object rule presumes that there has been an oral promise or some sort of an oral agreement.Dueck did not orally agree to guarantee Forward Trend’s debt to GIS, and it follows that the leading object rule was inapplicable.

When is a good nephew a better son? Thomas Malloy died in Holt county in 2003 owning nearly 1300 acres of farm ground. He gave through his will over 300 acres to his nephew Thomas Welsh with an option to purchase 640 more. Tom Welsh's father died when the nephew was very young and he considered Tom Malloy a father figure. The Holt County Court however refused to allow Welsh a lower inheritance tax as a child under 77-2004. The court of appeals (J Sievers) agrees finding that the county court was not clearly wrong to determine while the deceased and the nephew were close they did not have a parent child relationship. In re Estate of Malloy, A-06-178, 15 Neb. App. 755"Applying in re Estate of Ackerman,250 Neb. 665, 550 N.W.2d 678 (1996), to the instant case, we conclude, for the reasons that follow, that the county court did not err in denying Welsh the status he seeks under § 77-2004. We note that our review is for error appearing on the record, considering all of the circumstances of a particular case, and we do not disturb the lower court’s factual findings unless they are clearly wrong."

Supreme Court cautions parties to be more diligent in making jurisdictional challenges especially when they are upstairs in the big court. In two cases involving probated estates the Nebraska Supreme Court allows a related case to proceed in the district court but refuses to revoke an informally appointed personal representative's status for the estate of a decedent who had died in 1987, Washington v. Conley, S-06-428, 273 Neb. 908 In re Estate of Nemetz, S-06-487, 273 Neb. 918, The Supreme Court criticizes the Legislatures giving exclusive jurisdiction of probate cases to the county courts under § 24-517 (Cum. Supp. 2006), while Neb. Const. art. v, § 9 grants the district courts common law and equity jurisdiction. In Washington the Supreme court reverses the district court's decision that it lacked jurisdiction to hear a constructive trust case that appeared to be related to a probate case in county court. The District court failed to consider the jurisdictional attack as a facial one under Rule 12b1, depending solely on the allegations in the plaintiff's complaint and thus in finding that it lacked jurisdiction, the district court erroneously relied upon information not found in Washington’s complaint, specifically, the assertions of counsel that the property at issue in this case is subject to a separate and contemporaneous probate proceeding in county court. The supreme court rejected the objections of the decedent's children to the second wife's appointment as informal personal representative nearly 20 years after the decedent's death in Estate of Nemetz. Although it appears unseemly for the widow to wait 20 years to probate an estate and shut off the children, the court concluded "the county court (properly) applied § 30-2454(b) finding no cause to remove Widow as personal representative. based on an examination for error appearing on the record."

Obtuse prose department: Can anyone figure out what something isn't because it isn't? In In re Estate of Potthoff, S-05-1299 the Nebraska Supreme Court (J McCormack) determined that a decedent's attempts to take property he held with his estranged wife by filing "notices" were ineffective to turn joint held property into tenancy in common. In the meantime the Supreme Court had to find that the Red Willow County Court's decision in Elvira and Lloyd Potthoff's case was a final order when the Supreme Court in Estate of Rose had held that a probate court decision that some property was not exempt family property was not a final order. See Estate of rose 730 NW.2d 391(2007).. Try to decipher this: the record before this court does not reflect that elvira has made a claim for an elective share. thus,unlike In re Estate of rose,the computation of the augmented estate is not the fundamental issue i n this case.rather,the fundamental issue before the county court was the computation of the probate estate.

Plaintiff loses auto accident case because she did not serve already deceased defendant in time. Two Justices also recommend cleaning up the civil procedure code on amending pleadings. Plaintiff in an auto accident case sued the defendant only a few months before the normal statute of limitations would have run. Plaintiffs counsel attempted service a number of times and shortly before the six month service deadline (25-217 RRS Neb)learned the defendant had passed away over year before they filed suit. Plaintiff served the defendant's son who was the decedent's administrator but did not attempt to amend the suit to name the personal representative defendant until her six month service deadline had run. Supreme Court agrees that any attempt to relate the amendment back to the suit filing date was void because there is no case after 25-217 caused the case to be dismissed. In concurring opinion, Justices Lerman and McCormack argue that the legislature should amend 25-201.02 to make the state version of FRCP 15 current with the federal version, which was amended in 1991 and then allowed relation back only if done within a time before the statute of limitations had run with the new defendant aware of the pending action. Reid v. Evans, S-05-1503"Because Reid’s lawsuit had been dismissed, her subsequent motion to amend and take advantage of relation back was a nullity, as would have been any order entered by the county court on that motion. Once Reid’s lawsuit had been dismissed, the county court lacked jurisdiction to make any further orders other than to formalize the dismissal. See id. The district court did not err in determining that the county court lacked jurisdiction to consider Reid’s motion to amend, and we affirm the district court’s decision. Concurring opinion: If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.

Nebraska Supreme Court dismisses appeal of profligate relatives who challenged revival of decedent's asset recovery action against them after probate estate administrator took over case from his conservatorship. Supreme Court overrules several older cases that held revival orders were appealable. Platte Valley Nat. Bank v. Lasen, S-05-1073 Decedent came under court ordered conservatorship several years ago and local bank sued the defendants to recover assets for the protected person. Later he died and his estate personal representative revived the action. The defendants objected to revival and appealed the county court's order. Supreme Court dismisses the appeal, holding that whether the court revives the action under 25-322 or 25-1403-1420 it is a non-final order. We now hold that an order reviving an action, whether the order was entered in proceedings under § 25-322 or under §§ 25-1403 to 25-1420, is not a final order from which an appeal may immediately be taken. the order may be reviewed after final judgment in the case. to the extent that Willis v. Rose, 223 Neb. 49, 388 n.W.2d 101 (1986); Keefe v. Grace, 142 Neb. 330, 6 n.W.2d 59 (1942); Levin v. Muser, 107 neb. 230, 185 n.W. 431 (1921); Missouri P. R. Co. v. Fox, 56 Neb. 746, 77 n.W.130 (1898); and Hendrix v. Rieman, 6 Neb. 516 (1877), hold otherwise, they are disapproved.