Bohling v. Bohling
309 Neb. 625
| Neb. | 2021Background
- Decedent Willis D. Bohling died March 27, 2018, leaving a self‑proved will (July 13, 2015) appointing daughter Kimberly as personal representative and containing a single dispositive sentence: all of the balance, residue, and remainder of my estate to daughter Kimberly; the will also stated the son Robert should receive nothing.
- Robert objected in county court, alleging the will was incomplete/uncertain, Bohling lacked testamentary capacity, and Kimberly exerted undue influence; the contest was transferred to district court under the statute limiting district court review to the will's validity.
- On remand after a prior reversal, the district court received affidavits from Kimberly and the drafting attorney (who described face‑to‑face meetings, Bohling’s competency at execution, and that execution was voluntary) and affidavits from Robert and several of Bohling’s friends (expressing belief Bohling would not disinherit Robert).
- The district court granted summary judgment for Kimberly, ruling the dispositive clause did not fail for uncertainty, the self‑proved will and attorney affidavit established prima facie testamentary capacity, and Robert’s affidavits were conclusory opinions insufficient to create a genuine factual dispute about capacity or undue influence.
- The Nebraska Supreme Court affirmed: it limited review to validity issues, held the dispositive provision sufficiently certain to be effective, and found no genuine issue of material fact on capacity or undue influence because opposing affidavits were speculative and lacked admissible factual foundation.
Issues
| Issue | Plaintiff's Argument (Robert) | Defendant's Argument (Kimberly) | Held |
|---|---|---|---|
| Whether the will's sole dispositive provision is too indefinite/uncertain to be valid | Clause is a 'balance, residue, and remainder' clause that transfers only leftovers; thus the will makes no effective disposition and is invalid | Clause operates as a general residuary that passes the testator's estate; language is sufficiently certain | Clause is sufficiently definite; does not fail for uncertainty; will is valid as to disposition |
| Whether genuine factual disputes exist about testamentary capacity or undue influence that preclude summary judgment | Affidavits from Robert and friends showing belief that decedent would not disinherit him create inference of mistake, confusion, lack of capacity, or undue influence | Proponent established prima facie capacity via self‑proved will and attorney affidavit; opposing affidavits are unsupported opinions/speculation and inadmissible for summary judgment | No genuine issue: proponent proved capacity; opposing statements were conclusory opinion and did not raise factual dispute on capacity or undue influence |
Key Cases Cited
- In re Estate of Wagner, 246 Neb. 625 (1994) (self‑proved will creates prima facie proof of testamentary capacity)
- Martin v. Ullsperger, 284 Neb. 526 (2012) (residuary clause construed to pass property owned at death)
- In re Estate of Barger, 303 Neb. 817 (2019) (discussion of will construction and validity issues)
- In re Estate of Casselman, 219 Neb. 516 (1985) (codicil failed for uncertainty where provisions were conflicting and indefinite)
- Kepley v. Caldwell, 96 Neb. 748 (1914) (residuary clause held too indefinite to enforce)
- Shipley v. Department of Roads, 283 Neb. 832 (2012) (summary judgment: affidavits must be based on personal knowledge and admissible facts; speculation and conclusions do not create issues of fact)
- Blacker v. Thatcher, 145 F.2d 255 (9th Cir. 1944) (upholding that a single dispositional clause referencing the residuum can be sufficiently definite to pass the estate)
- Sundermann v. Hy‑Vee, 306 Neb. 749 (2020) (district court jurisdiction over transferred will contest is limited to determining whether a valid will exists)