In re Estate of Radford
297 Neb. 748
| Neb. | 2017Background
- Sheila Radford (settlor) made a $200,000 gift to daughter Mary in 2007; Mary signed a handwritten note acknowledging the gift and characterizing it as an inheritance.
- Sheila wire-transferred $200,000 to a title company referencing Mary; in 2010 Sheila amended and restated her trust and will (the Trust), which did not mention the 2007 gift.
- Sheila died in 2014; Provident Trust Company (trustee) filed an application for direction asking whether the 2007 gift satisfied (adeemed) Mary’s future trust inheritance under Neb. Rev. Stat. § 30-2350.
- At the county court hearing the trustee did not offer sworn testimony or formally admit exhibits; counsel summarized facts and asked the court to take judicial notice of the record; Mary appeared pro se by phone and did not clearly stipulate to counsel’s factual summary.
- The county court treated Mary’s handwritten note as a contemporaneous acknowledgment under § 30-2350, held the gift satisfied her trust share, and eliminated Mary’s distribution because the gift exceeded her one-sixth share.
- On appeal the Nebraska Supreme Court reversed and remanded, finding the county court lacked admissible evidence and failed to create a record showing what it judicially noticed or relied upon.
Issues
| Issue | Plaintiff's Argument (Mary) | Defendant's Argument (Trustee) | Held |
|---|---|---|---|
| Whether § 30-2350 applies to trusts/gifts affecting trust distributions | § 30-2350 governs testamentary/legacy advancements only; trust language controls and settlor intent governs | Trustee: § 30-2350 applies to inheritances poured into the trust and Mary’s contemporaneous writing satisfies the statute | Not decided on merits — appellate court remanded because record lacked admissible evidence to resolve statutory issue |
| Whether the 2007 gift adeemed Mary’s future trust share (ademption by satisfaction) | Mary: Trust residuary language shows settlor intended Mary to receive one-sixth; gift didn’t automatically adeem trust share absent proof of intent | Trustee: The handwritten acknowledgment and contemporaneous transfer show the gift was an advancement/satisfaction of inheritance, so Mary’s trust share should be reduced/zeroed out | Not decided on merits — remanded for new hearing due to insufficient evidence in record |
| Whether parties’ courtroom statements/stipulation substituted for formal evidence | Mary: She did not unequivocally admit counsel’s factual recitation; no clear stipulation or judicial admission | Trustee: Counsel’s summary and Mary’s “no, there isn’t” to dispute amounted to agreement that facts were undisputed | Court of Appeals: Statements were not definite, deliberate judicial admissions or sufficient stipulations; they did not substitute for sworn testimony or admitted exhibits |
| Whether the county court properly took judicial notice of the documents/record relied upon | Mary: Court failed to identify or mark the specific records; judicial notice was improper without making documents part of the record | Trustee: Asked court to take judicial notice of the record and relied on pleadings/attachments | Held: Court erred — papers relied on were not marked/entered as evidence; judicial notice was improper where records were not shown to be indisputable or previously adjudicated; remand required |
Key Cases Cited
- Hargesheimer v. Gale, 294 Neb. 123 (discusses record sufficiency for appellate review)
- In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (trust-administration review standards)
- Bergmeier v. Bergmeier, 296 Neb. 440 (appellate standards for reviewing trust/equity matters)
- Hynes v. Good Samaritan Hosp., 285 Neb. 985 (insufficient record and remand principles)
- In re Interest of N.M. and J.M., 240 Neb. 690 (limitations on judicial notice of court records when matters remain controverted)
- Everson v. O'Kane, 11 Neb. App. 74 (requirements for marking and making judicially noticed papers part of the record)