In re Estate of Fuchs, 297 Neb. 667

Background

Gilbert R. Fuchs died May 29, 2012, survived by four adult children: Jim, Joseph, Julie, and Jason.
Within a week of his death (June 12, 2012) Jim and Joseph filed for informal appointment as copersonal representatives of Gilbert’s intestate estate, alleging no will was found after reasonable diligence; they were appointed.
The estate’s documents were disorganized across two homes and vehicles; family members searched but did not locate a will. Some papers were later moved to storage totes; Julie took two totes to Chicago.
On July 8, 2015 Joseph received by mail a brown envelope containing a 1987 will leaving everything to Jim; Joseph gave the will to Jim.
Jim filed a petition for formal probate of the 1987 will on July 15, 2015 (more than three years after Gilbert’s death). Julie and Jason objected, moved for summary judgment, and argued § 30-2408 barred the late probate and that Jim was estopped.
The district court granted summary judgment for the objectors, holding the formal probate was time-barred under Neb. Rev. Stat. § 30-2408 and that Jim failed to prove equitable estoppel or entitlement to equitable tolling. Jim appealed.

Issues

Issue	Plaintiff's Argument (Jim)	Defendant's Argument (Julie & Jason)	Held
Whether § 30-2408’s 3-year bar applies when an earlier informal probate was commenced but not completed	§ 30-2408 should not bar formal probate because the prior informal proceeding must have been finally adjudicated to trigger the bar	A prior proceeding need only have been commenced within three years to trigger § 30-2408’s bar	The court held the plain meaning of § 30-2408 bars the late probate when any prior formal or informal proceeding has occurred within three years; completion is not required — summary judgment affirmed
Whether equitable estoppel prevents application of § 30-2408 because the will was allegedly suppressed	Jim alleged someone concealed the will to push it past the 3-year limit and that parties should be estopped from asserting the bar	Objectors argued there was no evidence they concealed or knowingly suppressed the will; family members all had access and searched	Court held Jim failed to present evidence of false representation, knowledge, or intent required for equitable estoppel; speculation insufficient — claim denied
Whether equitable tolling excuses filing after the 3-year period	Jim argued equitable tolling should apply because the will was effectively hidden amid disarray and family members may have delayed disclosure	Objectors argued Jim himself commenced the initial informal proceeding, alleging no will, and was not prevented by any external restraint from timely filing for probate	Court held equitable tolling requires due diligence; Jim filed the informal proceeding within a week and was not prevented by a paramount authority, so tolling did not apply
Whether summary judgment was appropriate on these defenses	Jim urged disputed factual issues (who suppressed will, when discovered) precluded summary judgment	Objectors maintained lack of admissible evidence to support estoppel or tolling; statute’s plain text controls	Court affirmed summary judgment for objectors because no genuine issue of material fact supported estoppel or tolling claims and statute barred late probate

Key Cases Cited

Thomas v. Board of Trustees, 296 Neb. 726 (2017) (standard for reviewing summary judgment and viewing evidence in nonmovant’s favor)
Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (2017) (discussion of § 30-2408 and limitations under the Nebraska Probate Code)
In re Estate of Nemetz, 273 Neb. 918 (2007) (interpreting § 30-2408’s allowance when no prior probate proceeding had occurred)
In re Estate of Harris, 379 Mont. 474 (2015) (Montana court interpreting a near-identical UPC provision regarding prior proceedings)
Bryan M. v. Anne B., 292 Neb. 725 (2016) (elements of equitable estoppel in Nebraska)
Macke v. Jungels, 102 Neb. 123 (1918) (equitable tolling where claimant was restrained from bringing suit)
Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58 (1943) (tolling statute of limitations where plaintiff was enjoined from proceeding)
Brodine v. Blue Cross Blue Shield, 272 Neb. 713 (2006) (limitations and effect of a parallel proceeding on tolling)