Gabel v. Jeffries (In re Estate of Gabel)
| Decision Date | 30 July 2019 |
| Docket Number | No. A-17-1248.,A-17-1248. |
| Parties | IN RE ESTATE OF CHARLES L. GABEL, DECEASED. JAMES L. GABEL, APPELLEE, v. JOLENE M. JEFFRIES ET AL., APPELLANTS. |
| Court | Court of Appeals of Nebraska |
(Memorandum Web Opinion)
Appeal from the District Court for Cass County: MICHAEL A. SMITH, Judge. Affirmed as modified.
Nicole Seckman Jilek and Robert M. Schartz, of Abrahams, Kaslow & Cassman, L.L.P., for appellants.
John M. Lingelbach, James A. Tews, and Minja Herian, of Koley Jessen, P.C., L.L.O., for appellee.
Jolene M. Jeffries (Jolene), Jane M. Hill (Jane), Judy A. McMeekin (Judy), Jack C. Gabel (Jack), and Joyce L. Gabel (Joyce), (hereinafter referred to collectively as the Gabel 5), appeal multiple rulings of the Cass County District Court following a jury trial in which the jury found that Charles L. Gabel (Charles) lacked testamentary capacity to sign his will and trust dated December 3, 2014, and that Charles had been unduly influenced to sign the documents. We affirm as modified.
Charles and Mary Jo Gabel (Mary Jo) had seven children: James L. Gabel (James), Jolene, Jane, Judy, Jack, Joyce, and Jeri L. Wichert (Jeri). James was the oldest child and worked on the farming operation with Charles. Jack helped farm for a couple of years while he was in high school but did not help with the farming operation thereafter. None of the other children were involved in the farming operation to any significant degree.
The farming operation originally consisted of 160 acres, including the family home, and was located near Osceola, Nebraska. In 1972 or 1973, Charles purchased another 80 acres of land. In 1975, after James graduated from high school, Charles rented another 401 acres of farmland. In 1994, James and Charles formed CJ Land and Cattle LLP, for their farming business and, in 2006, formed CJ Feedyard, LLC, for their cattle feeding business. James began handling the finances for the farm in 1996. In 2010, at the request of a lender, Charles and James formed MCGFF, LLC, to serve as a financing entity for their businesses. By 2012 or 2013, the farming operating had grown to 2,402 acres including rented land. James and Charles worked the farming operation together, used each other's equipment, helped each other, and consulted on every major business decision until March 2007 when Mary Jo passed away unexpectedly. Thereafter, Charles sold to James the 10 acres on which the house, farm buildings, and bins were located. Additionally, Charles instructed James that Charles wanted James to have an option to purchase the farmland and equipment upon his death and began to retreat from active farming.
In 2008, Charles executed a trust document in which he gave James the option to purchase certain farmland at its assessed value upon Charles' death. At about the same time, Charles executed a "Statement of Intent" which provided that James had the option to purchase 94 acres formerly owned by Mary Jo which was consistent with Mary Jo's 1996 will. In that statement, Charles provided, in part:
My son, James L. Gabel has helped me and provided assistance during my farm operation for the past 30 years. In recognition of this contribution to my farming operation over the past 30 years, I have elected to treat my son James L. Gabel, more favorably than my other children. Were it not for his efforts over the past years, I would not have been able to accumulate the estate which he has helped create.
Following Mary Jo's death, Charles became depressed and began to drink heavily until sometime in 2008. In July 2012, Charles was pulled over for driving on the wrong side of the road and ended up losing his driver's license.
Beginning in August 2012, Charles' primary care physician, Dr. Cameron Sidak, performed several mini-mental status examinations (MMSEs) on Charles. A MMSE is a test often administered by primary care physicians to assess mental capability. Another doctor described the test as sensitive to revealing cognitive defects, but not very effective at diagnosing the underlying condition causing the defect. The MMSE test is scored on a 30-point scale. A score below 25 corresponds to dementia; a score below 20 corresponds to moderate dementia; and a score below 10 corresponds to severe dementia. In August 2012, Charles' test resulted in a score of 14. At that time, Dr. Sidak diagnosed Charles with early stage Alzheimer's dementia.
Shortly thereafter, on September 11, 2012, Charles executed a new will with the residue of the estate to be devised to all seven children in equal shares. Charles also executed a new trust in 2012 with the only significant additions consisting of the inclusion of additional property acquired by Charles and the inclusion of a provision intended to ensure compliance with a Natural Resource District directive. Within the trust document, James was named as successor trustee to Charles.
Dr. Sidak continued MMSE testing on Charles and, in December 2012, after Charles starting taking Aricept, a dementia medication, Charles' MMSE test score increased to a 20. In March and November 2013, Charles scored 17 on each of two MMSEs. In January 2014, he scored a 19, which Sidak testified should have been scored as an 18, and in March 2015, he scored a 13.
On July 25, 2013, Charles called Jolene and asked for her assistance in connection with a medical condition. On July 26, Jolene drove Charles to the doctor and proceeded to take him to the office of attorney James Papik (Papik). According to Jeri's testimony at trial, Jolene previously told her that Jolene and Jason Gabel (Charles' grandson) saw Charles' will and trust and were upset about the provisions favoring James. At Papik's office, Charles asked Papik to change his power of attorney from James to Jolene and remove James as successor trustee and name Jolene in his place. After meeting with Papik, Jolene took Charles across the street to Cornerstone Bank where she provided the new power of attorney and amended trust. Jolene testified that in the following weeks after she became Charles' attorney-in-fact, Charles learned that he was in much greater debt than he previously thought. Charles moved in with Jolene following these meetings.
On August 16, 2013, Papik organized a family meeting to discuss Charles' estate plan. The meeting was attended by Charles, Papik, James, Jack, Jolene, and Jeri. At the meeting, Papik discussed Charles' 2012 will and trust, the recent amendment to the trust, and the recent naming of Jolene as Charles' attorney-in-fact. The subject matter of the meeting resulted in a heated exchange between Charles and James and other members of the family. The fracturing of the family continued after the meeting. By November 13, Charles and James got into an altercation at Charles' home which each accused the other of instigating and which was witnessed by Jason. The incident resulted in James being charged with assault and obstruction of a police officer. James pled guilty and was ordered to have no contact with Charles.
By August 2014, Charles again attempted to change his will and trust. In doing so, he expressed his desire to now disinherit James and to leave assets to Jeri's children, bypassing Jeri. The members of the Gabel 5 testified that, among other things, the changes were due to James' attempts to obtain a guardianship, his mishandling of Charles' finances, and his treatment of Charles. Charles' counsel, who had prepared Charles' 2014 will and trust, retained a third party law firm to witness the signing. Counsel testified at trial to the steps counsel utilized to ensure Charles' competency prior to Charles' final execution of the documents which took place on December 3, 2014.
Charles lived with Jolene until March 30, 2015, when he moved to Silver Ridge Assisted Living. During the time that Charles resided with Jolene, James and Jeri testified that Jolene refused to provide them with updates on Charles' health. On April 15, Charles left Silver Ridge to be evaluated at Immanuel Hospital. By May 15, Charles moved to Prairie Meadows Nursing Home and lived there until his death on November 18.
During Charles' stay at Prairie Meadows, Jolene provided Prairie Meadows with photographs of James and Jeri. Jolene instructed the facility that James had a no contact orderlegally preventing him from seeing Charles and instructing the staff to call to arrange a supervised visit if Jeri sought to see Charles. At trial, James offered exhibit 259, a September 25, 2015, document which demonstrated Charles' change in care plan and which included photographs and the instructions made by Jolene. Over the Gabel 5's objection, the court accepted the portion of exhibit 260, dated April 7, 2015, which contained Jolene's photos and instruction but not the change in care plan.
On April 18, 2016, James filed a petition for formal probate in the Cass County Court, alleging that Charles' 2012 will was his last will and testament and seeking to be appointed personal representative of the estate. Jolene objected alleging that the 2014 will was valid and was Charles' last will and testament. Jolene sought to have Heritage Bank appointed as personal representative. The case originated in the Cass County Court and was eventually transferred to the Cass County District Court before trial.
In connection with the district court proceedings, the district court issued a Joint Pretrial Conference Order which stated in relevant part:
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