IN RES ESTATE OF ELLIS

616 N.W.2d 59

9 Neb. App. 598

In re ESTATE OF Beulah Truvett ELLIS, deceased.

Jeremiah Wade, appellant, v. Christian Crusaders, appellee.

No. A-99-630.

Court of Appeals of Nebraska.

August 15, 2000.

Vard R. Johnson, of Broom, Johnson & Clarkson, Omaha, for appellant.

Gerald P. Laughlin, Ronald C. Jensen, and John F. Nownes III, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellee.

HANNON, INBODY, and CARLSON, Judges.

CARLSON, Judge.

INTRODUCTION

Jeremiah Wade appeals from an entry of summary judgment, resulting in the dismissal of his objection to probate of the will of Beulah Truvett Ellis. For the reasons set forth below, we affirm.

BACKGROUND

The essential facts of this case are not in dispute. Ellis died testate on January 1, 1996, at the age of 75. She had served in the U.S. Army during World War II and later worked as a secretary at Offutt Air Force Base, eventually retiring as a civil servant in January 1979. There was considerable evidence that Ellis was a loner, with few outside contacts other than her workplace, and that she seldom interacted with other family members or neighbors.

Ellis' will, a self-proved will executed on August 1, 1988, had been drafted by an Omaha attorney, Dana C. Bradford III. That will provided that the residue of her estate, estimated in the 1996 report of the special administrator at approximately $300,000, would go to Jarve Garrett, who had served as her attorney from approximately 1981 through at least 1988. Christian Crusaders is the contingent beneficiary of the residual estate. Ellis' will also contained the following provision: "Article VII. I have intentionally and with full knowledge made no provision for my son, JEREMIAH "JERRY" WADE, and thereby specifically intend to completely disinherit him with the specific result that he not share in my estate."

Garrett died on October 6, 1990. The record shows that at the time of his death, Garrett was indebted to Ellis in the amount of $12,000, an unsecured debt to be repaid at a rate of 10 percent interest, memorialized in a promissory note signed by Garrett and dated April 22, 1989.

Christian Crusaders is a not-for-profit organization based in Waterloo, Iowa. The organization produces live radio broadcasts of the church services at Trinity Lutheran Church of Waterloo. The record shows that Ellis had made regular donations to Christian Crusaders since 1979, in amounts ranging from hundreds to thousands of dollars per year.

Wade is the illegitimate son of Ellis, born to her, at home, on September 29, 1951. At that time, Ellis lived in the home of her mother, Eleanor Phillips. Ellis had attempted to keep that pregnancy hidden. Phillips was Wade's principal childhood caregiver, and Wade referred to her as his mother; he called Ellis by her first name. The record suggests that Ellis seldom, if ever, acknowledged Wade as her son, and there is uncontroverted evidence that she treated him cruelly during the time they shared a residence, on at least one occasion whipping him with an electrical cord while he was tied to a post in the basement. Wade left Phillips' home in 1966. Ellis moved out of Phillips' home in approximately 1969, after a falling out with Phillips. Wade visited Ellis approximately a dozen times until 1980, when he resided with her for a 3-week period when he was experiencing financial difficulties. It is uncontroverted that Ellis routinely denied to neighbors and acquaintances that she had a son.

The record further shows that on or about September 4, 1989, prior to Garrett's death, Ellis contacted Bradford's office, seeking to remove Garrett from her will. The record further shows that an associate of Bradford's, Anthony Hruban, met with Ellis and drafted a proposed replacement will. That proposed will was mailed to Ellis on or about August 29, 1990. That draft would have, inter alia, removed Garrett from the will and made a $2,000 bequest to Christian Crusaders. Naomi Carter, who had worked at Offutt Air Force Base with Ellis and was a longtime acquaintance, would have been the residual beneficiary; the contingent beneficiary was left blank. That draft also specifically disinherited Wade. On or about July 1, 1991, some 10 months after Garrett's death, Hruban wrote to Ellis, requesting that she respond to the August 29, 1990, letter, and take the necessary steps to execute the new will. There is no showing that Ellis ever responded to this letter, and the proposed revised will was never executed.

Christian Crusaders petitioned the county court for Douglas County to admit Ellis' August 1, 1988, will to probate, and Wade objected, asserting that Ellis had lacked testamentary capacity to make and execute the will and that the will was a product of undue influence. Wade subsequently transferred the case to the district court for Douglas County, pursuant to Neb.Rev. Stat. § 30-2429.01 (Reissue 1995). Christian Crusaders then moved for summary judgment, which was granted on April 30, 1999. In its order, the district court held that no genuine issues of material fact existed as to Ellis' testamentary capacity. The court went on to hold that "Ellis could have been subject to undue influence from Garrett and that the distinct possibility exists that this undue influence caused Ellis to devise the residuary [sic] of her estate to Garrett." However, the court held that this issue of fact was not material, because "the application of the doctrine of partial invalidity would keep intact the valid portions of the will and sustain the bequest to Christian Crusaders."

Wade filed the instant appeal on May 28, 1999.

ASSIGNMENT OF ERROR

Wade's two assignments of error may be summarized as a general assertion that the trial court erred in granting summary judgment. Specifically, he asserts that the trial court erred in finding that no genuine issues of material fact existed both as to the testamentary capacity of Ellis and as to whether the will was a product of undue influence.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999). The question on such review is not how a factual issue is to be decided, but whether any real issue of genuine fact exists. Id.

In an appellate review, the grant of a motion for summary judgment may be affirmed on any ground available to the trial court, even if it is not the same reasoning the trial court relied upon. Foreman v. AS Mid-America, 255 Neb. 323, 586 N.W.2d 290 (1998).

Proceedings to determine legal competency and alleged undue influence in a probate context sound in law, and the findings of the trier of fact will not be disturbed unless clearly wrong. In re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919 (1996).

ANALYSIS

A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented remains uncontroverted. After the moving party has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994); Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500 N.W.2d 520 (1993).

Testamentary Capacity.

One possesses testamentary capacity if he or she understands the nature of his or her act in making a will, knows the extent and character of his or her property, knows and understands the proposed disposition of his or her property, and knows the natural objects of his or her bounty. In re Estate of Villwok, 226 Neb. 693, 413 N.W.2d 921 (1987); In re Estate of Schoch, 209 Neb. 812, 311 N.W.2d 903 (1981); Anderson v. Claussen, 196 Neb. 787, 246 N.W.2d 586 (1976). Such capacity is tested by the state of a testator's mind at the time the will is executed. In re Estate of Villwok, supra.

The burden is on the proponent of a will to prove the testamentary capacity of the testator. In re Estate of Wagner, supra; In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982). However, a self-proved will establishes prima facie proof of testamentary capacity. In re Estate of Wagner, supra. Moreover, the ultimate burden of proving undue influence remains at all times on the party asserting the issue, who must establish all necessary elements of undue influence. Goff v. Weeks, 246 Neb. 163, 517 N.W.2d 387 (1994).

Wade does not, and on this record cannot, assert that Ellis did not recognize Wade as her biological son. The fact that she expressly disinherited him in her will suggests not only that she was aware of his status, but that she also recognized him as a natural object of her bounty. The record also shows that Wade maintained occasional contacts with her over the years and that she allowed him to stay with her briefly when he was experiencing financial difficulties.

Nor are we swayed by Wade's suggestion that Ellis should be presumed to lack testamentary capacity merely because she chose to disinherit him. Nebraska has no public policy against disinheriting any descendant. In re Estate of Hannan, 2 Neb.App. 636, 513 N.W.2d 339 (1994), reversed on other grounds 246 Neb. 828, 523 N.W.2d 672. As explained in In re Estate of Wahl, 151 Neb. 812, 823, 39 N.W.2d 783, 790 (1949):

[N]o right of a citizen is more valued and more assured by law than the power to dispose of his property by will. He is entitled to the control of his property while living, and by will to direct its use after his death, subject only to the restrictions which are imposed by statute. A testator may dispose of his property as he pleases. The

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