In re Estate of Walker, 997 N.W.2d 595

Decedent Rita A. Walker died September 26, 2021. A will dated September 15, 2021 (the proposed will) named son Mark as sole beneficiary and personal representative.
Son Michael objected to probate, alleging Rita lacked testamentary capacity on September 15, 2021, and that the proposed will resulted from undue influence.
Mark introduced as exhibit 7 a six‑page typed document dated February 22, 2016, purporting to be an earlier will also naming Mark sole beneficiary; exhibit 7 bore Rita’s signature and a notary signature but lacked two witness signatures.
The county court excluded exhibit 7 as hearsay and irrelevant, then found the proposed will validly executed but refused probate because Mark did not prove testamentary capacity and the will was the product of undue influence; it ordered intestacy and appointed Michael personal representative.
On appeal the Nebraska Supreme Court held exhibit 7 was admissible under the state‑of‑mind hearsay exception and was relevant to show a constant and abiding testamentary scheme; exclusion was reversible error and the matter was remanded for reconsideration including exhibit 7.

Issue	Plaintiff's Argument (Mark)	Defendant's Argument (Michael)	Held
Admissibility of exhibit 7 under hearsay/state‑of‑mind exception	Exhibit 7 is an out‑of‑court written statement offered to show Rita’s intent/mindset and fits the §27‑803(3) exception	Exhibit 7 is hearsay and cannot be admitted to prove the truth of its testamentary terms	Court (de novo): Exhibit 7 falls within the state‑of‑mind exception and was admissible for the proponent’s stated purpose
Relevance of exhibit 7 to rebut undue influence / show testamentary scheme	A prior instrument showing similar dispositions demonstrates a constant and abiding scheme and rebuts undue influence and incapacity claims	Exhibit 7 is not a duly executed will (lacks two witnesses) and therefore has no testamentary/legal meaning and is irrelevant	Court: Even if not a formally executed will, exhibit 7 has probative value to show a consistent testamentary scheme and is relevant
Prejudice from exclusion / effect on undue influence finding	Excluding exhibit 7 deprived Mark of competent evidence needed to meet his burdens on capacity and to rebut undue influence	Any error was harmless because exhibit 7 was unsigned/unsworn and would not assist the court	Court: Exclusion unfairly prejudiced Mark’s substantial rights; reversible error; remand for the county court to reconsider the record, including exhibit 7 (court did not decide undue influence on appeal)

In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (Neb. 2015) (state‑of‑mind exception applied to testator’s out‑of‑court statements about testamentary intent)
In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (Neb. 1982) (prior instruments may show a consistent testamentary plan)
In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (Neb. 1982) (prior testamentary documents used to rebut undue influence / lack of capacity claims)
In re Estate of Bose, 136 Neb. 156, 285 N.W. 319 (Neb. 1939) (earlier instruments can be competent evidence of testamentary intent)
Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (Neb. 2022) (appellate standard: de novo review of ultimate hearsay admissibility determinations)
Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (Neb. 2021) (allocation of burdens in will contests)