Bohling v. Bohling
309 Neb. 625
| Neb. | 2021Background
- Decedent Willis D. Bohling died March 27, 2018, leaving a self‑proved will dated July 13, 2015. The will appointed daughter Kimberly as personal representative and contained a single dispositive sentence: “All of the balance residue and remainder of my Estate ... I do hereby give devise and bequeath unto my daughter, Kimberly Bohling,” and stated that son Robert should receive nothing.
- Kimberly opened informal probate and was appointed personal representative; Robert objected and filed a will contest in county court asserting (1) the will’s dispositive clause was incomplete/uncertain, (2) Bohling lacked testamentary capacity, and (3) the will resulted from Kimberly’s undue influence. The contest was transferred to district court under Neb. Rev. Stat. § 30‑2429.01.
- On remand after an earlier reversal, the district court considered affidavits from the drafting attorney (Morrissey) and Kimberly, and affidavits from Robert and several of Bohling’s friends. Morrissey attested to Bohling’s capacity and voluntariness; friends and Robert offered opinions that Bohling would not have disinherited Robert and that the clause was a mere “leftovers” residuum.
- The district court treated the dispositive language as a general residuary‑type devise, found the clause sufficiently certain to effectuate a testamentary disposition, and concluded the self‑proved will established prima facie capacity; Robert’s affidavits were characterized as unsupported opinion not creating a factual dispute on capacity or undue influence.
- The Nebraska Supreme Court affirmed: the dispositive clause did not fail for uncertainty, and no genuine factual issues remained on testamentary capacity or undue influence to preclude summary judgment for Kimberly.
Issues
| Issue | Plaintiff's Argument (Robert) | Defendant's Argument (Kimberly) | Held |
|---|---|---|---|
| Whether the sole dispositive clause is too indefinite/incomplete to create a valid testamentary disposition | Clause is a “balance/residue” transferring only leftovers after unspecified prior gifts, so it’s too incomplete/uncertain to be a valid dispositive provision | The clause is a general residuary‑type devise that sufficiently and unambiguously disposes of the testator’s estate | Clause is valid; does not fail for uncertainty and is entitled to probate |
| Whether there is a genuine issue of fact that Bohling lacked testamentary capacity when he executed the will | Affidavits and life‑long statements (e.g., that property would be split 50/50) create a factual dispute suggesting confusion or mistake about disinheritance | Self‑proved will and attorney affidavit establish prima facie capacity; Robert’s affidavits are unsupported opinion and speculative | No genuine factual dispute; attorney’s affidavit and self‑proved will support capacity; summary judgment proper |
| Whether there is a genuine issue of fact that the will was procured by Kimberly’s undue influence | Regular presence of Kimberly and family circumstances suggest opportunity and motive; disinheritance implausible absent influence | No evidence identifying how, when, or by what actions undue influence was exerted; mere opportunity and relationship insufficient | No genuine factual dispute; Robert failed to present evidence showing undue influence occurred or produced the result |
Key Cases Cited
- Kepley v. Caldwell, 96 Neb. 748, 148 N.W. 966 (1914) (residuary clause held too indefinite and invalid)
- In re Estate of Casselman, 219 Neb. 516, 364 N.W.2d 27 (1985) (codicil failed for uncertainty and was not entitled to probate)
- In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994) (self‑proved will gives prima facie proof of testamentary capacity)
- Martin v. Ullsperger, 284 Neb. 526, 822 N.W.2d 382 (2012) (discussing validity challenges to will provisions)
- In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015) (summary judgment/undue influence standards in will contests)
- Sundermann v. Hy‑Vee, 306 Neb. 749, 947 N.W.2d 492 (2020) (jurisdictional limits when will contests transferred to district court)
- Blacker v. Thatcher, 145 F.2d 255 (9th Cir. 1944) (upholding a residuary‑type clause disposing of entire estate)
- Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019) (doctrine on which court may address will construction vs. validity)