Clinger v. Clinger (In re Estate of Clinger), S–13–769

Citation292 Neb. 237,872 N.W.2d 37
Decision Date11 December 2015
Docket NumberNo. S–13–769,S–13–769
Parties In re Estate of Mary Ann Clinger, Deceased. Orin M. Clinger et al., Appellants, v. Shaun Clinger, personal representative of the Estate of Mary Ann Clinger, deceased, et al., Appellees.
CourtSupreme Court of Nebraska

Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellants.

Steven P. Vinton, of Bacon & Vinton, L.L.C., for appellee Shaun Clinger.

George G. Vinton for appellees Calvin Clinger and Patricia Clinger.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ.

Cassel, J.

I. INTRODUCTION

This appeal arises from an unsuccessful will contest, premised upon undue influence and tried to a jury. The Nebraska Court of Appeals affirmed the district court's judgment.1 We granted further review primarily to determine whether the jury should have been instructed regarding a "presumption of undue influence." After both sides have sustained their respective burdens of production, an instruction describing a permissible or probable inference of undue influence as a "presumption" would conflict with the statutory burden of proof and likely mislead the jury. The Court of Appeals correctly affirmed the district court's refusal to give the contestants' proposed instructions. And we agree with the Court of Appeals that the district court did not abuse its discretion in responding to a jury question or in admitting, in part, a video of the execution of an earlier will. Even though our reasoning differs somewhat from that of the Court of Appeals, we affirm its decision.

II. BACKGROUND

The facts are set forth in greater detail in the Court of Appeals' published decision.2 We summarize the relevant background to the extent necessary to provide context for the errors asserted on further review.

1. PARTIES

The decedent, Mary Ann Clinger, had six children: Mary E. Chalupa, Sandra A. Goodwater, LeRoy A. Clinger, Orin M. Clinger, Calvin Clinger, and Melvina D. Bundy. Four of her children—Orin, Mary, Melvina, and Sandra—were the will's contestants. The proponents were Calvin; his wife, Patricia Clinger; and their son, Shaun Clinger.

2. MARY ANN AND HER WILLS

In 2000, the contestants became concerned about Mary Ann's financial situation. They were also uneasy about the influence Calvin had over Mary Ann. The contestants initiated a conservatorship proceeding, and the court appointed a permanent conservator for Mary Ann in January 2001. The conservatorship made Mary Ann upset with the contestants, because she felt that it was not necessary.

In August 2001, Mary Ann executed a will in which she left her 320–acre farm to Calvin. This will directed that Mary Ann's home be sold, with LeRoy and Sandra each receiving one-third of the net proceeds and the other one-third being divided equally between Orin, Mary, and Melvina. Mary Ann devised the remainder of her property equally to Calvin and LeRoy. The execution of this will was videotaped.

Over the next 10 years, Mary Ann's health deteriorated. In January 2011, she was diagnosed with lung cancer

. She was prescribed numerous medications, but her doctor described her as "sharp" and did not detect any of the medications' potential side effects.

In January 2011, Mary Ann asked Calvin to draft a new will for her. The disposition of property was similar to that of the 2001 will, but she made some changes in the percentages each child received. Calvin took Mary Ann to see an attorney, who drafted a new will for Mary Ann in February. The February 2011 will also left all of the farmland to Calvin. The proceeds from the sale of Mary Ann's house and its contents were to be divided among her other five children, and the remainder of the estate was to go to Calvin. The will specified that Mary Ann was aware the devise to Calvin was substantially more valuable than the devises to the other children, but that she was intentionally making those devises to reflect Calvin's dedication and service to her throughout the years.

On March 5, 2011, Mary Ann died at age 89. The contestants objected to the petition to admit to probate either the February 2011 will or the August 2001 will, claiming that the wills were invalid because Mary Ann lacked testamentary capacity and because the devises were the result of undue influence. The will contest was transferred to the district court.

3. TRIAL

The district court conducted a jury trial regarding the 2011 will on two issues: testamentary capacity and undue influence. There was contradicting evidence regarding whether Calvin improperly influenced Mary Ann or whether she favored him because of his assistance with the farm and his support regarding her feelings about the conservatorship.

During the trial, the parties also adduced evidence regarding the 2001 will. The proponents offered the video of the will signing. The attorney who drafted the will testified that he arranged for the video because he was "fairly certain there was going to be a will contest." The contestants objected to the video on the bases that it was duplicative and hearsay and that it violated " Rule 403."

Although the court first stated that it was inclined to instruct the jury to consider the video only to determine testamentary capacity and not to consider it as to influence, the actual instruction, which followed a colloquy with counsel, was less restrictive. Prior to showing the video, the court limited the jury's use of the video by stating: "There are specific questions asked by [the attorney depicted] regarding influence and whether Calvin ... influenced Mary Ann.... You are to disregard those questions and answers given and they may not be considered by you as evidence on the issue of undue influence." The video was played for the jury and sent into the jury room during deliberation.

After the contestants rested, the proponents moved for a directed verdict on both issues. The district court granted the motion on the issue of testamentary capacity but denied it as to undue influence.

During the jury instruction conference, the contestants offered proposed instructions regarding a presumption of undue influence. The court declined to give the proposed instructions.

During deliberation, the jury asked a question regarding the burden of proof.

The court referred the jury to the instruction on the burden of proof.

The parties later stipulated that the jury would be allowed to return a verdict if seven or more members of the jury agreed to it. The jury ultimately rendered an 8–to–4 verdict, finding that the 2011 will was valid.

4. COURT OF APPEALS' DECISION

The contestants appealed, and the Court of Appeals affirmed the district court's judgment. Although in the appellate court the contestants assigned error to the granting of the directed verdict on testamentary capacity, they did not seek further review on that issue.

With regard to the presumption of undue influence, the Court of Appeals determined that the contestants presented evidence that could support a finding of a confidential relationship coupled with suspicious circumstances. The court noted that Mary Ann began living with Calvin and Patricia in January 2009 and that Mary Ann wrote checks to them in 2009 and 2010 totaling over $15,000. But the court reasoned that the proponents then rebutted the presumption. The court noted that Patricia testified that she was a licensed practical nurse and that Mary Ann wrote her checks to reimburse her for the care she provided, because it was less expensive than paying for a nursing home. Mary Ann had her own attorney when she lived with Calvin and his wife and would speak with him alone. Also, Mary Ann repeatedly explained that she was upset by the conservatorship and that she wished to leave the farm to Calvin because of his assistance to her.

The Court of Appeals reasoned that the presumption of undue influence in a will contest is not an evidentiary presumption, but, rather, is a "bursting bubble" presumption that disappears when evidence to rebut the presumption is introduced. And because the proponents offered rebuttal evidence, the court determined that the presumption disappeared and that thus, there was no basis upon which to instruct the jury regarding the presumption. The court stated, "Since the burden of proof remained on the contestants to prove undue influence, and because the jury instructions given properly placed this burden on the contestants, they were not prejudiced by the court's failure to give the tendered instructions."3

The Court of Appeals found no abuse of discretion by the district court in refusing to further instruct the jury in response to its question about the burden of proof.

The Court of Appeals determined that the video regarding the 2001 will was admissible because it pertained to Mary Ann's state of mind and fell under the hearsay exception contained in Neb. Evid. R. 803(2), Neb. Rev. Stat. § 27–803(2) (Reissue 2008). The court stated that Mary Ann's responses to questions regarding undue influence would be hearsay if offered to prove the truth of the matter asserted, but noted that the district court instructed the jury to not consider the video as to whether it showed influence. The court determined that it was not an abuse of discretion to admit the video as evidence of Mary Ann's state of mind, with the limiting instruction given.

The Court of Appeals rejected the assertion that the video was cumulative. The court noted that the jury had not observed or heard from Mary Ann. The court also determined that the video did not violate the contestants' rights to cross-examine witnesses against them. The court stated:

[W]here guarantees of trustworthiness exist, cross-examination of a declarant in a civil case may not be required if the statement sought to be introduced falls within a statutory exception. As stated above, because the present state-of-mind exception allowed admission of the video, and the court properly gave a limiting instruction as to
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