Estate of Rolenc, In re
| Citation | 7 Neb.App. 833,585 N.W.2d 526 |
| Decision Date | 27 October 1998 |
| Docket Number | No. A-97-544,A-97-544 |
| Parties | In re ESTATE OF Edward J. ROLENC, also known as Edward J. Rolenc, Sr., deceased. Edward ROLENC et al., Personal Representatives of the Estate of Edward J. Rolenc, deceased, Appellees, v. Mary Jo GABEL and Rita Hruska, Appellants. |
| Court | Court of Appeals of Nebraska |
Syllabus by the Court
1. Decedents' Estates: Appeal and Error. Appeals of matters arising under the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum.Supp.1996), are reviewed for error on the record.
2. Decedents' Estates: Good Cause: Time: Appeal and Error. Neb.Rev.Stat. § 30-2437 (Reissue 1995) provides that for good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
3. Decedents' Estates: Good Cause: Words and Phrases. Good cause as used within the provisions of Neb.Rev.Stat. § 30-2437 (Reissue 1995) means a logical reason or legal ground, based on fact or law, why an order should be modified or vacated.
4. Decedents' Estates: Wills. In determining whether to grant a motion to set aside an order admitting a will to probate, a court should consider whether neglect is excusable, whether a movant has alleged a meritorious objection to admission of a will to probate, and whether prejudice results from setting aside the probate order.
5. Decedents' Estates: Wills. A movant must support a claim of meritorious objection or defense by good faith averment of facts, not simply legal conclusions.
Richard K. Watts, of Mills, Watts & Reiter, Osceola, for appellants.
Robert J. Bierbower, David City, for appellees.
Mary Jo Gabel and Rita Hruska appeal the judgment of the Butler County Court denying their motion to set aside its order admitting the will of Edward J. Rolenc, also known as Edward J. Rolenc, Sr. (the decedent), to probate.
On December 16, 1996, Edward Rolenc, Jean McGarry, and Bridget Wilson (hereinafter referred to as the proponents) filed a petition for formal probate of the will of the decedent. The proponents alleged that the decedent had died on December 10, that they were the nominated personal representatives, that no other personal representative had been appointed, and that to the best of their knowledge, they believed the will dated June 13, 1990, was validly executed. The petition further alleged that the will either was in the possession of the court or accompanied the petition. A copy of the will has not been included in our record.
A hearing on the petition was held January 9, 1997, at 11:30 a.m. At the hearing, the court inquired whether there were any objections to the admission of the will to probate. Gabel informed the court that she had not had an opportunity to review the will. She was given a copy of the will, and the court again inquired whether Gabel had any objections to it. Gabel asked the court how long a time she had to contest the will. The court informed her, "Until 11:30 today." The court further stated that "[p]ublic notice was given on December 19th in the Banner Press that the petition for formal probate of the will was on file," and that "this will was on file with the court for review beginning on" that date.
Gabel informed the court that her attorney had called the previous day and requested a copy of the will be faxed to him and that he had again called that morning. The court explained that it was not ordinary practice to fax documents long distance but stated that a copy of the will had been faxed to Gabel's attorney at approximately 10 a.m. that morning.
The court informed Gabel that it was going to grant the proponents' motion for formal probate of the will and stated that if Gabel had any objections, she would need to talk to her attorney and ask the court to set aside the order. The court recommended that it be done within the next 10 days.
On January 15, 1997, Gabel and Hruska (hereinafter referred to as the contestants) filed an objection to the petition for probate of the will, alleging that the will was not executed with the formalities required by Nebraska statutes, that the decedent did not have testamentary capacity at the time he executed the will, and that the will was the result of the undue influence of the proponents. As noted, a copy of the will has not been included in our record; however, according to an April 17 journal entry of the court, the contestants are daughters of the decedent and were expressly disinherited.
A hearing on the contestants' "objection" was held on March 6, 1997. At the hearing, counsel for the contestants requested that the objection be treated as a motion to set aside the order. Counsel explained that the contestants had misunderstood the court and were under the impression that they had 10 days to object to the petition for formal probate. The court took the matter under advisement and ultimately granted counsel's request, and hereafter we will treat the objection as a motion to vacate. In the court's order, filed March 18 the court noted:
Neb. Rev.Stat. § 30-2437 provides: "[f]or good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal." The Objections filed by Contestants do not provide the court with any information from which the court could conclude that good cause exists.
The court gave the contestants until March 31, "to provide a statement of good cause in support of the motion" and scheduled a hearing for April 10.
On March 31, 1997, the contestants filed a "Statement of Good Cause." The statement was sworn to by Gabel. In it, she averred that on December 24, 1996, counsel for the proponents mailed her a notice that the petition for formal probate had been filed and a hearing had been set; that Gabel did not receive said notice until December 27; and that Gabel was entertaining relatives until January 2, 1997. Gabel further averred that between the time of the decedent's death, December 10, 1996, and the holiday season, she had a "significant outbreak" of "shingles," which prevented her from leaving the house and operating a motor vehicle. Gabel stated that she had "reason to believe, based upon facts known to her, that the will offered for probate" was objectionable because it was not executed with the formalities required by Nebraska statutes, the decedent lacked testamentary capacity at the time he executed the will, and the will was the result of undue influence exercised upon the decedent by the proponents.
A hearing was held April 10, 1997. No evidence was offered at the hearing, and counsel for the contestants stated that he "would ... submit [the matter] based upon the statement of good cause that's been filed with the Court." In a journal entry filed April 17, the court denied the motion, stating:
The court concludes that the summary allegations of counsel in support of the motion to vacate do not constitute a demonstration of a meritorious objection. The court further concludes that no issues of law exist with respect to the execution of the Will, and that no facts were presented from which the court can conclude that a meritorious factual issue exists with respect to the execution of the Will. The motion to vacate is therefore denied.
The contestants have timely appealed.
The contestants allege, restated, that the county court erred in finding that they had failed to show good cause why the order admitting the decedent's will to probate should be vacated.
Appeals of matters arising under the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum.Supp.1996), are reviewed for error on
the record. In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996); In re Conservatorship of Estate of Martin, 228 Neb. 103, 421 N.W.2d 463 (1988). When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997). On questions of law, an appellate court has an obligation to reach its own conclusions independent of those reached by the lower courts. In re Guardianship of Zyla, supra.
The county court determined that the will was in substantial conformity with the provisions of § 30-2329, which sets forth the requirements for execution of a self-proved will. The court concluded that "in order for the Contestants to prevail on their motion, they must demonstrate, by affidavit or evidence produced at the hearing, facts sufficient to warrant further hearing on their claims of undue influence and lack of capacity." Because the contestants offered no such evidence, the court found that the contestants had failed to show good cause why its order admitting the decedent's will to probate should be set aside.
Section 30-2437 provides that for good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal. In Devries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979), the Nebraska Supreme Court discussed the meaning of "good cause" in the context of § 30-2437. The court, analogizing the good cause requirement of § 30-2437 with the good cause requirement necessary to vacate a default judgment, stated:
[T]he situation that existed here was no different than where default judgment is entered and a timely application ... to vacate is filed together with a tendered defense--lack of testamentary capacity and undue influence--which, if true, would require the vacation of the decree admitting the will to probate. As stated in Steinberg v. Stahlnecker, 200 Neb. 466, 263 N.W.2d 861 (1978) ... ...
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