Gallner v. Larson, 291 Neb. 205

Judy Hoffman (decedent) was an Omaha attorney who named C. Gregg Larson—a friend and occasional legal helper—as beneficiary on multiple insurance/retirement designations between 1999–2001; some beneficiary changes coincided with informal communications and a draft (unexecuted) trust/ will naming Larson as successor trustee.
Judy died intestate in 2007; personal representative Michael Gallner (ex-husband) sued Larson after Larson received $236,024.33 from two life insurance/retirement accounts.
Gallner alleged Larson breached fiduciary duties as Judy’s attorney and as an alleged trustee, committed legal malpractice, converted funds, and that a constructive/oral trust should be imposed; Gallner also challenged admission of a photocopied handwritten note (exhibit 158).
At bench trial the district court found for Larson, concluding no trust (oral or constructive) was established, no conversion occurred, and Larson met the burden to show the transactions were fair; the court admitted exhibit 158.
On appeal the Nebraska Supreme Court affirmed, reviewing legal/factual issues under appropriate standards for law and equity and discretionary evidentiary rulings.

Issue	Plaintiff's Argument (Gallner)	Defendant's Argument (Larson)	Held
Admissibility of exhibit 158 (photocopy of note)	Original was required; duplicate not admissible	Duplicate admissible; no genuine question of authenticity	Admissible — district court did not abuse discretion
Attorney fiduciary duty / gift to attorney	Larson, as attorney, should have advised independent counsel; gift presumptively suspect; breached duty and tainted designations	Larson did not solicit gift, Judy was a competent attorney who acted voluntarily; Larson met burden to show fairness	No breach — Larson met burden; designation was fair
Legal malpractice	Larson’s conduct was negligent and proximately caused loss to estate	Larson was not employed for estate matters; no neglect; no causal loss	No malpractice — no employment relation re: estate matters and no proven loss
Creation of trust / constructive trust / conversion	Proceeds were intended to be held in trust for Jordan/Makenzie; alternatively, constructive trust should be imposed or conversion found	No executed/declared oral trust; beneficiary designations and note show outright gift; Larson lawfully received proceeds	No oral or constructive trust; no conversion; funds lawfully retained by beneficiary Larson

Krzycki v. Krzycki, 284 Neb. 729 (addresses burden and standards in related contexts)
Eggleston v. Kovacich, 274 Neb. 579 (equitable actions and appellate review of factual issues)
Gasper v. Moss, 204 Neb. 24 (oral trust principles)
In re Invol. Dissolution of Wiles Bros., 285 Neb. 920 (trial court evidentiary discretion)
Harris v. O’Connor, 287 Neb. 182 (malpractice / proximate cause framework)
Bauermeister v. McReynolds, 254 Neb. 118 (fiduciary burden to prove fairness of transactions)
Gonzalez v. Union Pacific RR. Co., 282 Neb. 47 (attorney-client relationship is fiduciary)