In re Estate of Barger
303 Neb. 817
| Neb. | 2019Background
- Joan Barger executed a 2006 will containing (1) a residual clause distributing non‑trust property equally among four children and (2) Article IV exercising a power of appointment to distribute property described as held by the Barger Family Irrevocable Trust, plus a no‑contest clause (Article V).
- In July 2006 Joseph and Steven (trustees) and Joan executed documents terminating the trust; a 2007 court order dismissed a prior challenge and found the trust "effectively terminated." Trustees did not complete all transfers before Joan’s 2012 death.
- In 2012 William filed a will‑contest alleging lack of capacity and undue influence; Elizabeth, Joseph, and Brendon financed and participated in the contest though William was the named filer.
- The county court (post‑trial) admitted the 2006 will to probate, later found the trust had been terminated, but concluded Joan intended Article IV distributions to govern for the listed items regardless of whether title had been transferred out of the trust.
- The court also found Elizabeth, Joseph, and Brendon had probable cause to support the 2012 contest and thus were not barred by the will’s no‑contest clause. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether beneficiaries who funded/assisted a will contest are barred by Article V (no‑contest clause) | Appellees: Article V bars Elizabeth, Joseph, Brendon because they aided and participated in the 2012 contest | Appellants: They merely supported William; not named filers, so Article V should not apply | Court: No‑contest clause unenforceable because there was probable cause to institute the contest; beneficiaries not barred |
| Whether probable cause existed to bring the undue‑influence/capacity contest | Contestants: Facts (multiple wills, testator frailty, suspicious circumstances, attorney conflicts, beneficiary involvement) supplied substantial likelihood of success | Defendants: Evidence insufficient; testator had capacity and independent intent | Court: Sufficient evidence and circumstances to establish probable cause for contesting the will |
| Whether the Barger Family Irrevocable Trust was terminated before Joan’s death and effect on power of appointment | Appellants: Trust was validly terminated in 2006; therefore trust property reverted to Joan and Article IV (as a trust appointment) could not be exercised at death | Appellees: Trust assets still held by trustees at death so Article IV validly exercised as trust power of appointment | Court: Trust termination was effective in 2006; trustees had duty to wind up but Joan no longer held the power of appointment at death |
| Whether Article IV bequests (describing trust property) must be ignored if the trust had terminated and property reverted to Joan, or whether extrinsic evidence may resolve latent ambiguity | Appellants: If trust terminated, Article IV meant nothing for now‑individual property and residuary Article III governs distribution | Appellees: Article IV reflects Joan’s intent for those specific items whether held in trust or individually | Court: Latent ambiguity existed; extrinsic evidence admissible; court concluded Joan intended Article IV distributions regardless of trust status, so Article IV governs those specific items |
Key Cases Cited
- In re Estate of Etmund, 297 Neb. 455 (discussing no‑contest clause scope and enforcement)
- McKinney v. Okoye, 287 Neb. 261 (definition of probable cause in civil context)
- In re Estate of Clinger, 292 Neb. 237 (undue influence inference from suspicious circumstances)
- In re Estate of Hedke, 278 Neb. 727 (trust termination and trustees' winding‑up duties)
- In re Estate of Odenreider, 286 Neb. 480 (will speaks at death; ambulatory nature of wills)
- Burnett v. Maddocks, 294 Neb. 152 (rules for construing testator intent and will language)