In re Estate of Radford, 297 Neb. 748

Background

Provident Trust Company (trustee) sought a judicial directive whether a $200,000 gift Sheila Radford gave her daughter Mary in 2007 should be treated as an advancement/ademption by satisfaction of Mary’s 1/6 remainder interest under the Trust restated in 2010.
Trustee’s application attached the Trust, Sheila’s will (which poured over to the Trust), and Mary’s handwritten 2007 note acknowledging the $200,000 as an inheritance; Sheila died in 2014.
At the county court hearing, no witnesses were sworn, no exhibits were admitted, and the trustee did not present testimonial evidence; counsel summarized facts and asked the court to take judicial notice of the record; Mary appeared pro se by phone and said facts were not in dispute but did not expressly admit counsel’s factual recitation as a substitute for evidence.
The county court ruled § 30-2350 applied (construing Mary’s contemporaneous writing as an acknowledgment of inheritance) and held the gift adeemed Mary’s trust share, resulting in no distribution to Mary.
On appeal the Nebraska Supreme Court found the county court lacked admissible evidence/support in the record for its factual findings, and that neither counsel’s statements nor Mary’s equivocal agreement constituted judicial admissions or properly noticed evidence.
Because the trustee (the moving party) failed to present evidence through no fault of Mary, the Supreme Court reversed and remanded for a new hearing so admissible evidence could be developed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Neb. Rev. Stat. § 30-2350 (contemporaneous writing re: advancement) applies to a trust distribution	Trustee: § 30-2350 applies and Mary’s 2007 writing shows the gift was an advancement of her inheritance from the Trust	Mary: § 30-2350 governs wills/advancements, not dispositive provisions of a later-executed trust; trust language controls	Court did not resolve on merits because record lacked admissible evidence; remanded for new hearing
Whether ademption by satisfaction applies to a gift made before a later restatement of the trust	Trustee: The pre-restatement gift acknowledged as inheritance operates to reduce/delist Mary’s trust share (ademption by satisfaction)	Mary: A gift before the trust restatement cannot automatically adeem a later trust devise lacking clear proof of intent	Court declined to decide on merits due to insufficient evidence preserved; remanded
Whether the plain language of the trust (giving Mary 1/6) controls over the earlier gift	Mary: Trust residuary manifestly gives Mary 1/6; trustee must prove intent to satisfy that devise	Trustee: Contemporaneous writing and transfer show testator intended gift as inheritance against future dispositive shares	Court did not reach substantive conflict-resolution because no admissible evidence established facts; remanded
Whether the county court could rely on counsel’s statements, pleadings, or judicial notice in absence of sworn testimony/exhibits	Trustee: Asked court to take judicial notice of submitted record and relied on counsel’s factual summary	Mary: Did not expressly stipulate to counsel’s factual summary as substitute for evidence	Held: Counsel’s statements and Mary’s equivocal agreement were not judicial admissions nor adequate substitutes; court erred in failing to mark/identify documents or admit evidence; record insufficient—remand for new hearing

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 (distinguishing standard of review for trust matters and equity issues)
Bergmeier v. Bergmeier, 296 Neb. 440 (appellate review principles for trust administration)
In re Interest of N.M. and J.M., 240 Neb. 690 (limits on judicial notice of court records when facts remain controverted)
Wolgamott v. Abramson, 253 Neb. 350 (requirement that the trial court identify documents judicially noticed and make them part of the record)