In re Estate of Radford, 297 Neb. 748

Background

Provident Trust Company (trustee) filed for direction asking whether a $200,000 inter vivos gift from Sheila Radford to her daughter Mary (2007) constituted an advancement/adedement of Mary’s share under Neb. Rev. Stat. § 30-2350 after Sheila restated her trust in 2010 and later died in 2014.
Trustee attached the trust, will, and Mary’s handwritten 2007 note (acknowledging the $200,000 as an inheritance) to its application but did not formally introduce those documents into evidence at the hearing.
At the hearing the trustee’s counsel summarized facts and requested the court to “take judicial notice of the record”; no witnesses were sworn, no exhibits were admitted, and Mary appeared pro se by telephone.
The county court found facts “not in dispute,” applied § 30-2350, treated the 2007 gift as an advancement/ademption by satisfaction, and reduced Mary’s one‑sixth residuary trust share to zero. Mary appealed.
The Nebraska Supreme Court held the county court had insufficient evidentiary record (no sworn testimony, no admitted exhibits, and no proper judicial‑notice procedure) and reversed and remanded for a new hearing so the trustee—as the moving party—may present evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 30-2350 (statute on advancements/ademption by satisfaction) applies to trusts	Mary: § 30-2350 should not be applied to alter an express trust distribution without proper proof of intent/evidence	Trustee: § 30-2350 governs advancements and Mary’s contemporaneous writing shows she acknowledged the gift as inheritance, so it should reduce her trust share	Court did not decide the statute’s substantive applicability on the merits because the record lacked admissible evidence; remanded for new hearing
Whether a pre‑trust gift can adeem a future trust devise (ademption by satisfaction)	Mary: A gift before the trust restatement cannot automatically adeem trust language showing intent to give one‑sixth	Trustee: The 2007 gift (and Mary’s handwritten acknowledgment) satisfies/adeems her later trust share	Not resolved on merits due to insufficient record; new hearing required
Whether Mary’s handwritten 2007 note constitutes a judicial admission substituting for evidence	Mary: Her “no dispute” comment did not admit the trustee’s factual recital; the note and wire transfer were not introduced into evidence	Trustee: Mary’s acknowledgment and counsel’s summary established the facts and justified treating the gift as an advancement	Court held that neither counsel’s unsworn summary nor Mary’s equivocal reply constituted an unequivocal judicial admission; evidence was required
Whether the county court properly took judicial notice of the record/documents	Mary: The court failed to identify, mark, or incorporate documents it was purportedly noticing; judicial notice was improper	Trustee: Asked court to judicially notice the record and relied on the attachments to the application	Court held judicial notice was improper here because documents were not identified/marked and facts were not previously adjudicated; record insufficient

Key Cases Cited

Hargesheimer v. Gale, 294 Neb. 123 (legal standard that meaningful appellate review requires a record explaining lower court’s grounds)
In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (standard for appellate review of trust administration matters)
Bergmeier v. Bergmeier, 296 Neb. 440 (appellate de novo review when equity question presented)
In re Interest of N.M. and J.M., 240 Neb. 690 (limits on judicial notice of court’s own records when matters remain controverted)
Wolgamott v. Abramson, 253 Neb. 350 (requirements for marking, identifying, and making judicially noticed papers part of the record)