In re Estate of Brinkman, 953 N.W.2d 1

Michael R. Brinkman died leaving two children: Nicole (older) and Seth; his will named Kimberly Milius as personal representative.
Article I defined “son” as Seth and stated that references to “children” and/or “issue” shall include Seth and any children born or adopted after execution; Nicole was not named.
Article V devised the residuary estate to the testator’s “issue, per stirpes.”
Nicole objected, claiming entitlement to one-half of the residue; the county court ruled the will was patently ambiguous as to Nicole’s status and held she was not disinherited.
Milius (as personal representative) and Seth appealed, arguing the will excluded/disinherited Nicole; the Nebraska Supreme Court affirmed the county court.

Issue	Plaintiff's Argument (Nicole)	Defendant's Argument (Seth/Milius)	Held
Appellate subject-matter jurisdiction to hear the appeal	Court lacked jurisdiction because of challenges to the appellants’ statuses	§30‑1601(2) allows any party or person affected to appeal; PR is a party and Seth is an affected heir	Court had jurisdiction; appeal permitted under §30‑1601(2)
Whether the will is ambiguous regarding Nicole’s status	The will is ambiguous (patent) and should be construed to include Nicole as issue/child	The will is unambiguous or only latently ambiguous; the word “include” shows intent to add only named persons, excluding Nicole	The word “include” created a patent ambiguity that must be resolved by interpreting the will as a whole; ambiguity remedied in favor of inclusion
Whether Nicole was expressly or impliedly disinherited by the will	No express disinheritance; provisions (including Article VII) show no intent to disinherit	Omission from Article I list and definition shows an intent to exclude/disinherit Nicole	No express or necessary-implication disinheritance; courts will not infer disinheritance absent clear language; Nicole takes as issue/child

Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015) ("include" precedes list and normally indicates a nonexclusive, partial list)
In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006) (distinguishes latent and patent ambiguities and limits parol evidence)
Jacobsen v. Farnham, 155 Neb. 776, 53 N.W.2d 917 (1952) (heir not held disinherited except by express provisions or necessary implication)
In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020) (jurisdictional principles in probate appeals)
Clutter v. Merrick, 162 Neb. 825, 77 N.W.2d 572 (1956) (estate distribution is in rem; heirs are interested persons entitled to appear on appeal)
In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536 (2017) (rules for ascertaining testator intent and will construction)