In re Estate of Fuchs
297 Neb. 667
| Neb. | 2017Background
- Decedent Gilbert Fuchs died May 29, 2012, survived by four children (Jim, Joseph, Julie, Jason). No will was found despite searches of two messy residences and vehicles.
- Jim and Joseph filed an application for informal appointment as copersonal representatives for intestacy on June 12, 2012; they were appointed the same day.
- On July 8, 2015 Joseph received and delivered to Jim a 1987 will leaving the estate to Jim; Jim filed for formal probate July 15, 2015 (more than 3 years after Gilbert’s death).
- Julie and Jason objected, arguing § 30-2408’s 3-year limit barred the late probate, and raised estoppel and prior-administration-based defenses; they moved for summary judgment.
- The district court granted summary judgment to the objectors, finding the prior informal proceeding satisfied § 30-2408’s bar, and that Jim presented no evidence of deliberate concealment or facts warranting equitable tolling.
- Jim appealed, arguing (1) the prior informal proceeding was not complete so § 30-2408 shouldn’t bar probate, (2) equitable estoppel should apply because the will was suppressed, and (3) equitable tolling should apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 30-2408’s 3-year prohibition bars a formal probate when an earlier informal probate proceeding was commenced but not completed | Jim: prior proceeding must have been fully adjudicated to bar the § 30-2408 exception | Objectors: any prior formal or informal proceeding that occurred within 3 years triggers the bar | Held: "occurred" means commenced; the mere occurrence of a prior proceeding within 3 years bars late probate |
| Whether equitable estoppel prevents application of the 3-year bar because the will was allegedly suppressed by an heir | Jim: will was deliberately suppressed, so objectors should be estopped from asserting the statute | Objectors: no evidence any heir concealed the will or intended suppression | Held: No evidence of concealment or intent; equitable estoppel not shown |
| Whether equitable tolling excuses filing outside the 3-year period due to circumstances preventing discovery | Jim: chaotic estate and possible concealment justify tolling | Objectors: Jim commenced the informal proceeding promptly and was not prevented by any authority; no disabling restraint | Held: Equitable tolling not available—claimant must show due diligence and a disabling circumstance; Jim did not |
| Whether summary judgment was appropriate on these grounds | Jim: factual disputes (who suppressed will, when discovered) preclude summary judgment | Objectors: plaintiff offered only speculation and no admissible evidence to create genuine issues | Held: Summary judgment affirmed; conjecture insufficient to create triable issues |
Key Cases Cited
- Thomas v. Bd. of Trustees, 296 Neb. 726 (standards for reviewing summary judgment)
- Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (interpretation and effect of Nebraska Probate Code limitations)
- In re Estate of Nemetz, 273 Neb. 918 (application of § 30-2408 when no prior probate proceeding was commenced)
- In re Estate of Harris, 379 Mont. 474 (Montana court on late-offered will and effect of prior proceedings under UPC-like statute)
- State v. Beitel, 296 Neb. 781 (principles of statutory interpretation)
- Bryan M. v. Anne B., 292 Neb. 725 (elements of equitable estoppel)