In re Estate of Radford
297 Neb. 748
| Neb. | 2017Background
- Sheila Radford made a $200,000 transfer to a title company for Mary in June 2007; Mary signed a handwritten note the same month acknowledging the money and stating it was recognized by her as "inheritance."
- Sheila amended her will and restated the Sheila Foxley Radford Trust in April 2010; the Trust’s residuary left one-half to Brigid and one-sixth each to Mary, William, and Christopher; the restatement did not mention the $200,000 gift.
- Sheila died October 5, 2014; Provident Trust Company, as trustee, filed an application for direction (Nov. 2015) asking whether the 2007 gift adeemed Mary’s distributive share under the doctrine of ademption by satisfaction and Neb. Rev. Stat. § 30-2350.
- At the county court hearing, no exhibits were admitted and no witnesses were sworn; trustee’s counsel summarized facts and asked the court to "take judicial notice of the record;" Mary agreed there was no dispute about the order of events but did not expressly adopt counsel’s factual recitation as a stipulation.
- The county court ruled that Mary’s handwritten acknowledgment qualified under § 30-2350 as an advancement/ademption and reduced (eliminated) her Trust distribution accordingly.
- The Nebraska Supreme Court reversed and remanded because the record lacked admissible evidence: documents were not marked/received, no sworn testimony, and judicial notice/stipulation requirements were not satisfied, preventing meaningful appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 30-2350 applies to trusts | Trustee: § 30-2350 applies and Mary’s contemporaneous writing evidences advancement against her trust share | Mary: § 30-2350 concerns intestate/wills, should not be applied to a trust distribution inconsistent with trust terms | Court did not decide the statute’s substantive application because it reversed for lack of admissible evidence and remanded for proper fact-finding |
| Whether a gift made before trust restatement can adeem a later trust gift (ademption by satisfaction) | Trustee: the 2007 gift, acknowledged as inheritance by Mary, satisfied her future trust share | Mary: pre-restatement gift cannot adeem trust gift absent clear proof of intent/evidence admissible to show satisfaction | Court remanded for new hearing because insufficient evidence was presented to support ademption finding |
| Whether Mary’s verbal agreement at hearing constituted a judicial admission/stipulation replacing evidence | Trustee: Mary agreed facts were undisputed, so counsel’s summary and pleadings could substitute for evidence | Mary: her reply did not unequivocally adopt counsel’s factual recitation or waive need for evidence; she attempted to add facts | Held: Mary’s statements were not clear, deliberate judicial admissions; parties did not create an admissible stipulation to supply missing evidence |
| Whether the court permissibly took judicial notice of the documents/record relied on | Trustee: court should judicially notice its own record and the attached documents | Mary: documents were not marked/received; judicial notice of contested adjudicative facts is improper without showing they are beyond dispute | Held: court erred to rely on unspecified "record" without marking/introducing documents; judicial notice procedures were not followed; record did not preserve evidence |
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 (trust-administration review principles)
- Bergmeier v. Bergmeier, 296 Neb. 440 (appellate review in trust cases; de novo review when equity issues present)
- Hynes v. Good Samaritan Hosp., 285 Neb. 985 (necessity of record reflecting trial court’s factual basis)
- Reicheneker v. Reicheneker, 264 Neb. 682 (judicial admissions and stipulation principles)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (judicial notice and marking/identification of noticed documents)
- Everson v. O’Kane, 11 Neb. App. 74 (procedural guidance on when judicial notice of court records is proper)