Bohling v. Bohling
962 N.W.2d 224
Neb.2021Background:
- Willis D. Bohling executed a self-proved will on July 13, 2015, appointing daughter Kimberly as personal representative and providing: "All of the balance residue and remainder of my Estate... I do hereby give devise and bequeath unto my daughter, Kimberly Bohling," and stating he intended Robert to receive nothing.
- After Bohling died in March 2018, Kimberly opened informal probate and was appointed personal representative; Robert objected and filed a will contest asserting the will was incomplete/uncertain, Bohling lacked testamentary capacity, and Kimberly exercised undue influence.
- The contest was transferred to district court under Neb. Rev. Stat. § 30-2429.01, limiting the district court to deciding whether a valid will existed.
- Evidence before the district court included affidavits from the drafting attorney (Morrissey) attesting proper execution and testamentary capacity, Kimberly’s affidavit about decedent’s competence, and affidavits from Robert and friends claiming prior 50/50 statements and opining Bohling would not intentionally disinherit Robert.
- The district court held the dispositional clause valid (construing it as a general/residuary devise), found Robert’s affidavits conclusory and insufficient to rebut the prima facie proof of capacity, and granted summary judgment for Kimberly.
- The Nebraska Supreme Court affirmed, holding the residuary-style clause was not too uncertain to be effective and that unsupported opinion testimony did not raise genuine factual disputes on capacity or undue influence.
Issues:
| Issue | Plaintiff's Argument (Robert) | Defendant's Argument (Kimberly) | Held |
|---|---|---|---|
| Validity of dispositional clause (uncertainty) | Clause only gives the "balance residue and remainder" and thus is an incomplete "leftovers" devise that fails for uncertainty | Clause is a valid general/residuary-style devise passing the testator's estate; construction issues are for probate court except as to validity | Court: Clause is sufficiently definite to effectuate a testamentary disposition; not invalid for uncertainty |
| Testamentary capacity | Decedent previously said assets would be split 50/50; affidavits suggest confusion — raises factual dispute on capacity | Drafting attorney’s sworn account and self-proving will establish prima facie capacity; no admissible facts rebutting that | Court: Morrissey’s affidavit and self-proved will establish capacity; Robert’s affidavits are conclusory and do not create a genuine issue |
| Undue influence | Kimberly was frequently present and pressured decedent; only explanation for disinheritance would be undue influence or mistake | No factual evidence of how or when undue influence occurred; proponent has burden to show will valid; contestant bears burden to prove undue influence | Court: Robert offered no factual support showing opportunity, disposition, or result demonstrative of undue influence; summary judgment proper |
Key Cases Cited
- Kepley v. Caldwell, 96 Neb. 748 (1914) (residuary clause held too indefinite and unenforceable)
- In re Estate of Casselman, 219 Neb. 516 (1985) (codicil invalid where terms were conflicting, vague, and failed for uncertainty)
- In re Estate of Wagner, 246 Neb. 625 (1994) (self-proved will creates prima facie proof of testamentary capacity)
- In re Estate of Clinger, 292 Neb. 237 (2015) (allocation of burdens in will contests; contestant must prove undue influence)
- Sundermann v. Hy-Vee, 306 Neb. 749 (2020) (discussing jurisdictional limits when contests transfer from probate to district court)
- Brinkman v. Brinkman, 302 Neb. 315 (2019) (concurrent jurisdiction and limits on courts construing wills)
- In re Estate of Barger, 303 Neb. 817 (2019) (residuary clause construction principles)
- In re Estate of Johnson, 260 Neb. 91 (2000) (discussing differing authority on whether an instrument can be treated as a residuary devise of entire estate)
- Blacker v. Thatcher, 145 F.2d 255 (9th Cir. 1944) (upholding a residuary-style clause as sufficiently definite to pass estate)
- Shipley v. Department of Roads, 283 Neb. 832 (2012) (summary judgment affidavit requirements; conclusions and speculation do not create genuine issues)