In re Estate of Radford
297 Neb. 748
| Neb. | 2017Background
- Provident Trust Company (trustee) filed for direction whether a $200,000 gift Sheila gave her daughter Mary in 2007 should be treated as an advancement/ademption of Mary’s share of the Sheila Foxley Radford Trust restated in 2010.
- Mary signed a handwritten 2007 note acknowledging the $200,000 as an inheritance; Sheila wired the funds shortly thereafter. The Trust restatement (2010) made no mention of that gift.
- Trustee alleged Mary’s contemporaneous writing triggered Nebraska’s statutory ademption-by-satisfaction rule (§ 30-2350) and sought a court ruling reducing Mary’s trust share accordingly; county court agreed and eliminated Mary’s distribution.
- At the county-court hearing no witnesses were sworn, no exhibits were admitted, and the trustee elicited no testimonial evidence; counsel summarized facts and asked the court to "take judicial notice of the record." Mary appeared pro se by phone and did not explicitly stipulate to counsel’s factual recitation.
- The county court treated the facts as undisputed and applied § 30-2350; on appeal the Nebraska Supreme Court held the record lacked admissible evidence to support the county court’s findings and remanded for a new hearing.
Issues
| Issue | Plaintiff's Argument (Trustee) | Defendant's Argument (Mary) | Held |
|---|---|---|---|
| Whether § 30-2350 (statutory ademption by satisfaction) may be applied to adjust trust distributions | § 30-2350 governs advancements/adeption and Mary’s contemporaneous writing proves the $200,000 was an advancement of inheritance | The statute does not properly displace trust language or apply absent admissible evidence of intent | Court did not resolve the merits; reversed because the record lacked admissible evidence to support application of § 30-2350 and remanded for new hearing |
| Whether a pre-restatement inter vivos gift acknowledged as an inheritance can adeem a later-created trust interest | The 2007 writing acknowledging the gift as an inheritance satisfies statutory requirements and reduces Mary’s trust share | Mary disputed that counsel’s factual summary and did not make a clear judicial admission; the trust instrument’s plain language shows intent to give Mary a one‑sixth residuary share | Court found insufficient evidence of a clear judicial admission or properly noticed documents; remanded for evidentiary hearing |
| Whether counsel’s courtroom statements and Mary’s “no, there isn’t” amounted to a stipulation or judicial admission waiving need for evidence | Trustee urged court to accept counsel’s summary and Mary’s assent as dispositive | Mary’s assent was ambiguous and she attempted to add facts, so it was not an unequivocal judicial admission | Court held those statements were not definite, unequivocal admissions and could not substitute for sworn testimony or admitted exhibits |
| Whether the county court could take judicial notice of the unspecified “record” to supply missing evidence | Trustee relied on judicial notice of its own filings and counsel’s statements | Mary contended the court needed identified, marked, and admitted documents; judicial notice of controverted facts was improper | Court ruled judicial notice was not properly used (documents were not marked/entered); therefore record lacked admissible evidence and remanded |
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 (addresses de novo review of trust matters when equity issues present)
- Bergmeier v. Bergmeier, 296 Neb. 440 (appellate reappraisal of record and evidence standards)
- Hynes v. Good Samaritan Hosp., 285 Neb. 985 (record deficiencies and remand principles)
- In re Interest of N.M. and J.M., 240 Neb. 690 (limits judicial notice of court records when facts remain controverted)
- Everson v. O'Kane, 11 Neb. App. 74 (court must mark and make noticed documents part of the record for appellate review)