In re Estate of Radford
297 Neb. 748
| Neb. | 2017Background
- Sheila Radford made a $200,000 gift/wire transfer to her daughter Mary in June 2007; Mary signed a handwritten note acknowledging the gift “and is recognized by me as inheritance.”
- In April 2010 Sheila amended and restated the Sheila Foxley Radford Trust; the restated trust residuary divided estate among four children (Brigid 1/2; Mary, William, Christopher each 1/6) and did not mention the prior $200,000 gift.
- Sheila died in October 2014; Provident Trust Company, as trustee, filed an application for direction (Nov. 2015) asking whether the 2007 gift adeemed Mary’s later trust share under Neb. Rev. Stat. § 30-2350 (ademption by satisfaction).
- At the county court hearing no exhibits were admitted, no witnesses sworn, and no testimony taken; trustee’s counsel summarized facts and asked the court to take “judicial notice of the record”; Mary (pro se, telephonic) said there was no dispute about the order of events but did not expressly admit counsel’s factual summary as a substitute for evidence.
- The county court concluded § 30-2350 applied, treated the 2007 gift as an advancement/ademption so Mary’s 1/6 trust share was reduced (resulting in no distribution), and entered an order. Mary appealed.
- The Nebraska Supreme Court reversed and remanded, holding the county court lacked an adequate evidentiary record (no admitted exhibits, no sworn testimony, improper use of judicial notice/stipulation), so the trustee failed to meet its burden and a new hearing is required.
Issues
| Issue | Plaintiff's Argument (Mary) | Defendant's Argument (Trustee) | Held |
|---|---|---|---|
| Applicability of Neb. Rev. Stat. § 30-2350 (adeption by satisfaction) to trust distributions | § 30-2350 should not be applied to alter the clear terms of the restated trust that gave Mary 1/6 | § 30-2350 controls; Mary’s contemporaneous writing acknowledging the $200,000 as an inheritance evidences an advancement/adeption | Court did not decide the statute’s substantive applicability on merits; remanded because record lacked evidence to support the ruling under § 30-2350 |
| Whether a pre-trust gift (2007) can adeem a later-created trust interest | The gift predated the trust and the trust instrument’s plain language demonstrates intent to give Mary 1/6; parol evidence and summary statements cannot supplant that | The 2007 written acknowledgment and wire transfer show satisfaction of inheritance, so Mary’s trust share should be reduced | Court reversed county court judgment because insufficient admissible evidence supported any factual finding that the gift adeemed the trust share |
| Use of counsel statements and party colloquy as substitute for evidence or stipulation | Mary’s “no, there isn’t” (no dispute) did not constitute an unequivocal judicial admission or stipulation to accept counsel’s unsworn factual narrative | Counsel asked court to take judicial notice of the record and summarized facts; trustee treated summary as sufficient | Court held parties did not make clear, deliberate judicial admissions and counsel’s unsworn statements were not a substitute for evidence |
| Judicial notice and record preservation for appellate review | Mary argued the court could not rely on unmarked/unadmitted documents or unsworn statements; appellate review requires an adequate record | Trustee relied on judicial notice of “the record” and the application’s attachments without formally admitting exhibits or eliciting sworn testimony | Court held judicial notice was improperly used (documents not identified/marked/admitted), record was insufficient, and remand for new evidentiary hearing was required |
Key Cases Cited
- Hargesheimer v. Gale, 294 Neb. 123 (discusses meaningful appellate review and record requirements)
- In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (trust-administration review standards)
- In re Interest of N.M. & J.M., 240 Neb. 690 (limitations on judicial notice of court records when facts remain controverted)
- Wolgamott v. Abramson, 253 Neb. 350 (requirements for marking and making noticed papers part of the record)
- Reicheneker v. Reicheneker, 264 Neb. 682 (definition and effect of judicial admissions)