In re Estate of Radford, 297 Neb. 748

Background

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) against Mary’s later one‑sixth residuary trust share after Sheila amended and restated her trust in 2010.
Trustee attached the trust, will (with a pour‑over), and Mary’s handwritten 2007 note stating she recognized the $200,000 as an inheritance to its application for direction filed in Nov. 2015.
At the county court hearing the trustee’s counsel summarized facts and requested judicial notice of the record; no exhibits were admitted, no witnesses sworn, and no testimony under oath was taken. Mary appeared pro se by phone and said there was no dispute about the order of events but attempted to add facts orally.
The county court treated Mary’s handwritten note as a contemporaneous acknowledgment under Neb. Rev. Stat. § 30‑2350 and held the $200,000 satisfied Mary’s trust share, leaving her with no distribution because the cash exceeded her one‑sixth residuary share.
On appeal the Nebraska Supreme Court found the county court relied on insufficient evidence, erred in treating counsel’s statements and the pleadings as a substitute for admitted evidence or proper judicial notice, and reversed and remanded for a new hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 30‑2350 (contemporaneous writing acknowledging gift as inheritance) applies to trusts	Mary: § 30‑2350 does not automatically apply to alter trust distribution absent proper proof of settlor’s intent	Trustee: Mary’s 2007 writing qualifies under § 30‑2350 and operates as an advancement against her trust share	Court did not decide the statute’s substantive application on the merits because record lacked admissible evidence; remanded for new hearing
Whether ademption by satisfaction (common law or statutory) can adeem a gift made before trust restatement	Mary: Ademption by satisfaction should not be applied without proof of settlor intent and admissible evidence	Trustee: The pre‑restatement gift + Mary’s contemporaneous acknowledgment show clear satisfaction of inheritance	Court held insufficient admissible evidence to find ademption; cannot rely on pleadings or unsworn statements; remand required
Whether the county court could rely on counsel’s factual summarization and Mary’s oral “no dispute” as stipulation or judicial admission	Mary: She did not unequivocally admit counsel’s factual recital as a substitute for evidence	Trustee: Counsel’s summary and Mary’s acknowledgment meant facts were undisputed and could be taken as judicial admissions / judicial notice	Court held neither counsel’s unsworn summary nor Mary’s ambiguous “no” constituted a clear judicial admission or adequate substitute for evidence
Whether the county court properly took judicial notice of its own records and the trustee’s attachments without formally marking/admitting them	Mary: Judicial notice was improper absent marking/identifying documents and showing they were not subject to reasonable dispute	Trustee: Court could judicially notice the record/documents and rely on them	Court held the trial court failed to identify, mark, or incorporate noticed documents into the record as required; judicial notice was improper here and appellate review was impossible without a proper evidentiary record

Key Cases Cited

Hargesheimer v. Gale, 294 Neb. 123 (Neb. 2016) (meaningful appellate review requires a record explaining the lower court’s decision)
In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (Neb. 2017) (distinguishing review standards for trust administration and equity issues)
Bergmeier v. Bergmeier, 296 Neb. 440 (Neb. 2017) (appellate de novo review on the record when equity questions are presented)
Hynes v. Good Samaritan Hosp., 285 Neb. 985 (Neb. 2013) (trial testimony must be under oath and documents admitted before consideration)
Reicheneker v. Reicheneker, 264 Neb. 682 (Neb. 2002) (judicial admissions substitute for evidence but must be unequivocal)