In re Estate of Clinger
292 Neb. 237
| Neb. | 2015Background
- Decedent Mary Ann Clinger executed wills in 2001 and February 2011; both left the 320‑acre farm to son Calvin. The 2001 will execution was videotaped.
- Mary Ann was placed under a conservatorship in 2001; several children (Orin, Mary, Melvina, Sandra) contested the 2011 will claiming lack of testamentary capacity and undue influence favoring Calvin (and his wife Patricia).
- At trial the district court granted a directed verdict for proponents on testamentary capacity but submitted undue influence to a jury; the jury returned an 8–4 verdict upholding the 2011 will.
- Contestants requested jury instructions characterizing a “presumption of undue influence” (shifting burden to proponents); the court refused and instructed that contestants bore the ultimate burden of proof by the greater weight of the evidence.
- The trial court admitted the 2001 will videotape for limited purposes (state of mind/testamentary capacity) and sent it to the jury room; contestants objected on hearsay, Rule 403, and confrontation/cross‑examination grounds.
- The Nebraska Court of Appeals affirmed; the Nebraska Supreme Court granted further review and affirmed, holding (inter alia) that an instruction calling the inference a legal “presumption” would be misleading and conflict with the statutory burden of persuasion.
Issues
| Issue | Plaintiff's Argument (Contestants) | Defendant's Argument (Proponents) | Held |
|---|---|---|---|
| Whether jury should be instructed that a “presumption of undue influence” arises from a confidential relationship plus suspicious circumstances | A presumption arises that shifts the burden to proponents to rebut; jury should be told this | There is no true evidentiary presumption; at the stage both sides produced evidence an instruction invoking a presumption would misstate law and mislead the jury | Refused: the court held the “presumption of undue influence” is not a true presumption for jury instruction and would conflict with statutory ultimate burden on contestant |
| Whether court abused discretion by not further clarifying burden of proof after jury question ("greater weight" vs "shadow of doubt") | Jury was confused and needed a clearer answer distinguishing civil vs criminal standards | Trial court properly referred jury back to the pattern instruction defining greater weight of the evidence; judge has discretion in responding | No abuse of discretion: referring jury to the correct pattern instruction was acceptable |
| Admissibility of 2001 will videotape (hearsay / Rule 403 / cumulative) | Video was hearsay, unfairly prejudicial and cumulative; prejudicial questions could not be "unringed" | Portions excluded; admitted parts were non‑hearsay/state‑of‑mind and relevant to capacity and consistent estate plan; probative value not substantially outweighed by prejudice | Admissible in part: video properly admitted for state of mind/testamentary capacity; limiting instruction cured hearsay concerns and Rule 403 not abused |
| Allowing jury access to the video during deliberations | Sending the video to jury room risked unfair prejudice and violated right to cross‑examination | No objection in record to sending video; courts have discretion to allow exhibits in deliberation; evidence was nontestimonial | No relief: Court declined to rule on replay issue due to lack of objection and absence of record showing prejudice; appellate review requires preserved objection and a showing of prejudice |
Key Cases Cited
- McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977) (holds the “presumption of undue influence” is not a true statutory presumption but a permissible inference)
- In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009) (discusses undue influence standards and evidentiary sufficiency in probate contexts)
- In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990) (addresses sufficiency of contestant evidence and directed‑verdict standard)
- Goff v. Weeks, 246 Neb. 163, 517 N.W.2d 387 (1994) (explains inferences of undue influence from surrounding circumstances)
- State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014) (analysis of what constitutes “testimony” for rehearing/replay during deliberations)