In re Estate of Radford
297 Neb. 748
| Neb. | 2017Background
- Provident Trust Company (trustee) filed for direction whether a $200,000 gift Sheila Radford gave to her daughter Mary in 2007 should be treated as an advancement/ademption by satisfaction of Mary’s later trust share after Sheila restated her trust in 2010.
- Mary had written a handwritten note on May 30, 2007 acknowledging the $200,000 as an inheritance; Sheila wired $200,000 on June 11, 2007 to a title company referencing Mary.
- Sheila restated her trust and will in 2010; the trust’s residuary divided among four children (Brigid 1/2, Mary, William, Christopher each 1/6); the restatement made no mention of the prior $200,000 gift.
- Trustee sought a court ruling that Neb. Rev. Stat. § 30-2350 (contemporaneous writing treating gift as inheritance) and the doctrine of ademption by satisfaction reduced Mary’s trust share.
- At the county court hearing no witnesses were sworn and no exhibits were admitted; counsel summarized facts and asked the court to take judicial notice of the record; Mary appeared pro se and said she did not dispute the order of events but did not expressly adopt counsel’s factual recitation as evidence.
- The county court ruled the contemporaneous writing controlled and reduced Mary’s trust share to account for the $200,000; the Supreme Court reversed, holding the record lacked admissible evidence and remanded for a new hearing.
Issues
| Issue | Plaintiff's Argument (Mary) | Defendant's Argument (Trustee/Provident) | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 30-2350 (contemporaneous writing treating gift as inheritance) applies to trusts/adeption | § 30-2350 does not apply to alter trust distribution; trust language controls and shows intent to give Mary 1/6 | The contemporaneous writing and wire transfer satisfy § 30-2350; gift was an advancement reducing Mary’s trust share | Court did not decide merits; reversed because insufficient admissible evidence to support factual findings |
| Whether counsel’s unsworn statements and parties’ loose agreement could substitute for evidence | Mary argued she never unequivocally admitted counsel’s factual recitation; did not stipulate to replace evidence | Trustee argued facts were undisputed and counsel’s statements plus judicial notice sufficed | Held: unsworn counsel statements and Mary’s non-specific assent were not judicial admissions or adequate substitute for evidence |
| Whether the court could take judicial notice of its own records or pleadings to supply missing evidence | Mary argued court could not judicially notice controverted facts from uncited documents not made part of the record | Trustee asked court to judicially notice the record and documents attached to its application | Held: court improperly failed to identify and admit documents; judicial notice of such contested matters was not appropriate without marking and making them part of the record |
| Whether the trustee met its burden to produce admissible evidence on its motion for direction | Mary argued trustee (moving party) failed to present evidence; record shows no sworn testimony or exhibits | Trustee argued facts were undisputed and burden satisfied by counsel’s summary and attachments to application | Held: trustee failed to introduce admissible evidence; because deficiency was not Mary’s fault, case remanded for a new hearing |
Key Cases Cited
- Hargesheimer v. Gale, 294 Neb. 123 (stands for requirement that appellate review needs a record explaining lower court's decision)
- In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (trust-administration appellate-review principles)
- Bergmeier v. Bergmeier, 296 Neb. 440 (appellate standard for trust matters)
- Hynes v. Good Samaritan Hosp., 285 Neb. 985 (remand when record deficient through no fault of appellant)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (requirements for judicial notice and record preservation)
- In re Interest of N.M. and J.M., 240 Neb. 690 (limits on judicial notice of court’s own records when facts remain controverted)
- Reicheneker v. Reicheneker, 264 Neb. 682 (judicial admissions and stipulations as substitute for evidence)
- Richards v. McClure, 290 Neb. 124 (testimony must be under oath and documents admitted before consideration)
- Stewart v. Heineman, 296 Neb. 262 (appellate presumptions about evidence burdens)
- Murphy v. Murphy, 237 Neb. 406 (when transcript suffices versus need for bill of exceptions)