In re Estate of Clinger ( 2015 )

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IN RE ESTATE OF CLINGER
Cite as 292 Neb. 237In re Estate of M ary A nn Clinger, deceased.
Orin M. Clinger et al., appellants, v.
Shaun Clinger, Personal R epresentative
of the Estate of M ary A nn Clinger,
deceased, et al., appellees.
___ N.W.2d ___
Filed December 11, 2015. No. S-13-769.
1. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
2. Trial: Courts: Juries: Appeal and Error. Whether to answer a ques-
tion of law posed by a jury which has retired for deliberations is a matter
entrusted to the discretion of the trial court, and in the absence of an
abuse of that discretion, its action will not be disturbed on appeal.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. Because the exercise of judicial
discretion is implicit in determinations of admissibility under Neb. Evid.
R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), the trial court’s deci-
sion will not be reversed absent an abuse of discretion.
5. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
6. Wills: Undue Influence: Proof. Under Neb. Rev. Stat. § 30-2431(Reissue 2008), contestants of a will have the burden of establishing
undue influence and carry the ultimate burden of persuasion.
7. ____: ____: ____. To show undue influence, a will contestant must
prove the following elements by a preponderance of the evidence:
(1) The testator was subject to undue influence, (2) there was an
opportunity to exercise such influence, (3) there was a disposition to
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IN RE ESTATE OF CLINGER
Cite as 292 Neb. 237exercise such influence, and (4) the result was clearly the effect of
such influence.
8. Wills: Undue Influence. Undue influence sufficient to defeat a will
is manipulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s.
9. Undue Influence: Proof. Because undue influence is often difficult to
prove with direct evidence, it may be reasonably inferred from the facts
and circumstances surrounding the actor: his or her life, character, and
mental condition.
10. ____: ____. Although the burden of going forward on the issue of
undue influence may shift to the proponent of the written instrument,
the ultimate burden of proof remains at all times on the party asserting
the issue.
11. Rules of Evidence: Presumptions: Proof. According to Neb. Evid. R.
301, Neb. Rev. Stat. § 27-301 (Reissue 2008), a presumption imposes
on the party against whom it is directed the burden of proving that the
nonexistence of the presumed fact is more probable than its existence.
12. Rules of Evidence: Presumptions. The “presumption of undue influ-
ence” is not a true presumption within the meaning of Neb. Evid. R.
301, Neb. Rev. Stat. § 27-301 (Reissue 2008).
13. Wills: Undue Influence: Presumptions. If a contestant’s evidence
shows a confidential or fiduciary relationship, coupled with other suspi-
cious circumstances, the contestant has introduced evidence sufficient to
justify an inference of undue influence.
14. Wills: Undue Influence: Presumptions: Proof. The inference of undue
influence may be rebutted by proof that the testator had competent inde-
pendent advice and that the will was his or her own voluntary act.
15. Undue Influence: Proof. The party seeking to establish undue influence
has not met his or her burden of proof if all of the evidence is circum-
stantial and the inferences to be drawn therefrom are equally consistent
with the hypothesis that undue influence was not exercised and the
hypothesis that such influence was exercised.
16. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
17. Jury Instructions: Appeal and Error. Jury instructions do not consti-
tute prejudicial error if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and evidence.
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Cite as 292 Neb. 23718. Jury Instructions. The general rule is that whenever applicable, the
Nebraska Jury Instructions are to be used.
19. Trial: Juries. The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has considerable
discretion in determining how to respond to communications indicating
that the jury is experiencing confusion.
20. Jury Instructions: Presumptions. It is presumed a jury followed the
instructions given in arriving at its verdict, and unless it affirmatively
appears to the contrary, it cannot be said that such instructions were
disregarded.
21. Wills. A prior will, executed when the testator’s testamentary or men-
tal capacity was and is unquestioned, and as to which the existence of
undue influence is not charged, and which conforms substantially as
to the results produced to the instrument contested, may be considered
as competent evidence for the purpose of refuting charges of undue
influence or want of testamentary or mental capacity by showing that
the testator had a constant and abiding scheme for the distribution of
his property.
22. Constitutional Law: Trial: Witnesses. The Sixth Amendment right
to confront witnesses and its Nebraska equivalent do not apply to a
civil case.
23. Rules of Evidence: Witnesses: Hearsay. When a witness is unavailable
for cross-examination, his or her statements are admissible only if they
bear adequate indicia of reliability.
24. Rules of Evidence: Hearsay: Presumptions. Hearsay that falls
within a firmly rooted hearsay exception is presumptively reliable and
trustworthy.
25. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely
objection waives the right to assert prejudicial error on appeal.
26. Appeal and Error. Error without prejudice provides no ground for
relief on appeal.
27. Courts: Appeal and Error. Upon further review from a judgment of
the Nebraska Court of Appeals, the Nebraska Supreme Court will not
reverse a judgment which it deems to be correct simply because its rea-
soning differs from that employed by the Court of Appeals.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and R iedmann and Bishop, Judges, on
appeal thereto from the District Court for Custer County, M ark
D. Kozisek, Judge. Judgment of Court of Appeals affirmed.
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IN RE ESTATE OF CLINGER
Cite as 292 Neb. 237Bradley 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, pre-
mised 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 cor-
rectly affirmed the district court’s refusal to give the contest­
ants’ 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
1
In re Estate of Clinger, 22 Neb. App. 692, 860 N.W.2d 198 (2015).
2
See id.- 241 -
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Cite as 292 Neb. 237b­ ackground 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. M ary A nn 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 perma-
nent conservator for Mary Ann in January 2001. The conserva-
torship 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
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Cite as 292 Neb. 237from 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 inten-
tionally 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 regard-
ing her feelings about the conservatorship.
During the trial, the parties also adduced evidence regard-
ing 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 testamen-
tary 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 ques-
tions 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
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Cite as 292 Neb. 237be considered by you as evidence on the issue of undue influ-
ence.” 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 A ppeals’ 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 rela-
tionship 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
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Cite as 292 Neb. 237when 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 pre-
sumption, but, rather, is a “bursting bubble” presumption that
disappears when evidence to rebut the presumption is intro-
duced. 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 con-
tained 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 evi-
dence of Mary Ann’s state of mind, with the limiting instruc-
tion 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
3
Id. at 708-09, 860 N.W.2d at 213.
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Cite as 292 Neb. 237video 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 the purpose for which it could be considered, the con-
testants were not denied their right to cross-examination.4
The Court of Appeals found no error in allowing the video
into the jury room during deliberation. The court stated that it
would analyze the issue despite the absence of an objection to
the video’s being taken into the jury room and the absence of
any indication that the jury replayed the video. In addressing
the merits of the argument, the Court of Appeals noted that
courts have broad discretion in allowing the jury unlimited
access to exhibits that constitute substantive evidence. Relying
upon our decision in State v. Vandever,5 the court concluded
that the video was nontestimonial evidence and that the district
court did not abuse its discretion in allowing the jury unlimited
access to it during deliberations.
We granted the contestants’ petition for further review.
III. ASSIGNMENTS OF ERROR
In the contestants’ petition for further review, they assign
that the Court of Appeals erred in affirming the district court’s
(1) refusal to instruct the jury on the presumption of undue
influence as proposed by the contestants, (2) refusal to further
instruct the jury in response to its question about the proper
burden of proof, and (3) admission into evidence of the video
of the 2001 will signing and allowing the jury access to it dur-
ing deliberation.
4
Id. at 703, 860 N.W.2d at 210.
5
State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).
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Cite as 292 Neb. 237IV. STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.6
[2] Whether to answer a question of law posed by a jury
which has retired for deliberations is a matter entrusted to the
discretion of the trial court, and in the absence of an abuse of
that discretion, its action will not be disturbed on appeal.7
[3-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.8 Because the exercise of judicial discretion is implicit
in determinations of admissibility under Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2008), the trial court’s deci-
sion will not be reversed absent an abuse of discretion.9 In a
civil case, the admission or exclusion of evidence is not revers-
ible error unless it unfairly prejudiced a substantial right of the
complaining party.10
V. ANALYSIS
1. Jury Instructions
(a) Proposed Instructions on
Undue Influence
The contestants challenge the district court’s refusal of their
proposed instructions regarding a presumption of undue influ-
ence. They offered two instructions, each of which addressed
this presumption.
The first instruction sought an addition to the statement of
the case. It proposed to instruct the jury that a presumption
of undue influence arose if the contestants’ evidence showed
6
Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014).
7
Sedlak Aerial Spray v. Miller, 251 Neb. 45, 555 N.W.2d 32 (1996).
8
Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014).
9
See Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
10
Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
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Cite as 292 Neb. 237that Calvin and/or Patricia had a confidential relationship
with Mary Ann, which was coupled with other suspicious
circumstances.
The second proposed instruction described a burden of proof
on undue influence. It proposed to instruct as follows:
In connection with this claim of undue influence, the
burden is on contestants to establish facts which show that
a confidential relationship existed between Mary Ann . . .
and her son, Calvin . . . , and/or his wife, Patricia . . . , and
the existence of suspicious circumstances. If such facts
are established, a presumption of undue influence arises
and the burden of going forward with the evidence to
rebut the presumption then shifts to the proponent[s].
The proponent[s] may rebut this presumption by evi-
dence which shows that there was no undue influence or
by evidence which shows that Mary Ann . . . had compe-
tent independent advice and that [the will] was her own
voluntary act.
The district court declined both instructions. The court
explained that the burden of proof always remained on the
contestants to show undue influence. Without referring to any
presumption of undue influence, the court instead instructed
the jury that the burden of proving undue influence was on the
contestants. The instruction given by the court stated in perti-
nent part:
The contestants . . . claim that [the will] is not the valid
Will of Mary Ann . . . because Calvin . . . and/or Pat[ricia]
. . . exerted undue influence over Mary Ann . . . .
(2) BURDEN OF PROOF: In connection with contest­
ants’ claim, the burden is on the contestants to prove by
the greater weight of the evidence each of the following:
(a) That Mary Ann . . . was a person who would be
subject to undue influence;
(b) That there was an opportunity to exercise undue
influence upon Mary Ann . . . ;
(c) That there was a disposition to exercise undue
influence upon Mary Ann . . . ; and
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Cite as 292 Neb. 237(d) That [the will] was the result of such undue
influence.
(3) EFFECT OF FINDINGS:
(a) If the contestants have not met this burden of proof,
your verdict must be that [the will] is the valid Will of
Mary Ann . . . .
(b) If the contestants have met this burden of proof,
then your verdict must be that [the will] is not the valid
Will of Mary Ann . . . .
This instruction was consistent with Nebraska’s pattern jury
instruction explaining the statement of a claim of undue influ-
ence.11 And the court’s instructions defined undue influence
using another pattern jury instruction.12
[6-10] We first recall several well-settled principles of the
law of undue influence. By statute, contestants of a will have
the burden of establishing undue influence and carry the ulti-
mate burden of persuasion.13 Because the specific language
will become important, we quote it here: “Contestants of a
will have the burden of establishing undue influence . . . .
Parties have the ultimate burden of persuasion as to matters
with respect to which they have the initial burden of proof.”14
To show undue influence, a will contestant must prove the
following elements by a preponderance of the evidence: (1)
The testator was subject to undue influence, (2) there was an
opportunity to exercise such influence, (3) there was a disposi-
tion to exercise such influence, and (4) the result was clearly
the effect of such influence.15 Undue influence sufficient to
defeat a will is manipulation that destroys the testator’s free
agency and substitutes another’s purpose for the testator’s.16
11
See NJI2d Civ. 16.06.
12
See NJI2d Civ. 16.07.
13
See Neb. Rev. Stat. § 30-2431 (Reissue 2008).
14
Id.15
In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
16
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Cite as 292 Neb. 237Because undue influence is often difficult to prove with direct
evidence, it may be reasonably inferred from the facts and
circumstances surrounding the actor: his or her life, character,
and mental condition.17 Although the burden of going forward
on the issue of undue influence may shift to the proponent of
the written instrument, the ultimate burden of proof remains at
all times on the party asserting the issue.18
[11] The contestants rely on a concept referred to as a
“presumption of undue influence.” According to statute, a pre-
sumption “imposes on the party against whom it is directed the
burden of proving that the nonexistence of the presumed fact is
more probable than its existence.”19
[12] But nearly 40 years ago, we held that the “presump-
tion of undue influence” was not a true presumption within
the meaning of § 27-301.20 We explained that in connection
with undue influence, “presumption” appeared to have been
intended to mean a permissible or probable inference.21 And
several of our cases thereafter spoke of an “inference” of undue
influence.22 But occasionally, we have reverted to the former
17
Goff v. Weeks, 246 Neb. 163, 517 N.W.2d 387 (1994).
18
See id.19
See Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2008).
20
See McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977). See,
also, Anderson v. Claussen, 200 Neb. 74, 262 N.W.2d 438 (1978).
21
See McGowan v. McGowan, supra note 20.
22
See, Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002) (deed); In
re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919 (1996) (elective share
of augmented estate); In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d
159 (1994) (will); Goff v. Weeks, supra note 17 (life insurance proceeds);
Pruss v. Pruss, 245 Neb. 521, 514 N.W.2d 335 (1994) (constructive trust);
Miller v. Westwood, 238 Neb. 896, 472 N.W.2d 903 (1991) (installment
contract); Pawnee County Bank v. Droge, 226 Neb. 314, 411 N.W.2d
324 (1987) (guaranty); In re Estate of Price, 223 Neb. 12, 388 N.W.2d
72 (1986) (will); In re Estate of Wagner, 220 Neb. 32, 367 N.W.2d 736(1985) (conservatorship); Craig v. Kile, 213 Neb. 340, 329 N.W.2d 340(1983) (deed); McDonald v. McDonald, 207 Neb. 217, 298 N.W.2d 136(1980) (deed).
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Cite as 292 Neb. 237nomenclature.23 Most recently, in In re Estate of Hedke,24 we
discussed in detail a “presumption of undue influence” and
noted tension concerning the proof necessary to rebut a pre-
sumption of undue influence.
But none of these later cases referring to a “presumption”
of undue influence involved the instructions to be given to
a jury in a will contest. In In re Estate of Hedke, we deter-
mined that in a will contest tried to the bench, the trial court
was clearly wrong in rejecting the contestant’s claim of undue
influence.25 Thus, we applied the usual standard of review of
a probate court’s factual findings.26 In In re Estate of Novak,27
we reviewed a will contest where a verdict was directed at the
close of the contestant’s evidence. In that situation, the motion
for directed verdict admits the truth of all material and relevant
evidence submitted by the contestant, and the contestant is to
have it and all inferences fairly deducible therefrom viewed in
the most favorable light in testing the correctness of the court’s
granting the motion.28 Each of the other cases involved an
action in equity to set aside a deed. And, of course, equitable
actions are tried to the bench.29
Although a comment in NJI2d seems to suggest that such
an instruction might be given, the cited cases do not support
giving one. NJI2d Civ. 16.07 provides the pattern instruc-
tion defining undue influence. Under this instruction, one of
23
See, In re Estate of Hedke, supra note 15 (will); In re Estate of Novak, 235
Neb. 939, 458 N.W.2d 221 (1990) (will); Schaneman v. Schaneman, 206
Neb. 113, 291 N.W.2d 412 (1980) (deed); Rule v. Roth, 199 Neb. 746, 261
N.W.2d 370 (1978) (deed).
24
In re Estate of Hedke, supra note 15.
25
Id.26
Id. (probate court’s factual findings have effect of verdict and will not be
set aside unless clearly wrong).
27
In re Estate of Novak, supra note 23.
28
Id.29
See Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
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Cite as 292 Neb. 237the comments states, “Further instruction may be necessary
in a case that involves a confidential or fiduciary relation-
ship.” The comment cites to three cases,30 but these cases
shed little light on instructions to be given the jury. In one
case,31 we recited that a confidential relationship between the
testator and a beneficiary does not raise a presumption that
the beneficiary exercised undue influence, but that the rela-
tionship between the two may be considered along with all
of the other facts and circumstances in determining whether
undue influence existed. In another case,32 we merely deter-
mined that the evidence was insufficient to justify submitting
the issue of undue influence to the jury. And in the last case
cited in the comment,33 we upheld a trial court’s refusal to
give proffered instructions to the effect that a confidential
relationship existed between the testatrix and a beneficiary
and that undue influence was largely a matter of inference
and facts surrounding the testatrix and would rarely be estab-
lished by direct proof. We stated that the instructions given
by the court adequately covered the matters contained in the
proposed instructions and that the relationship between the
testatrix and beneficiary may be considered along with all of
the other facts and circumstances in the case in determining
undue influence.
An earlier case discussing instructing the jury on a pre-
sumption of undue influence is likewise of little assistance.
In that case,34 the trial court instructed the jury that a pre-
sumption of undue influence arose in the case of a confi-
dential adviser who was a beneficiary. We stated that the
30
Cook v. Ketchmark, 174 Neb. 222, 117 N.W.2d 375 (1962); In re Estate
of Thompson, 153 Neb. 375, 44 N.W.2d 814 (1950); In re Estate of Goist,
146 Neb. 1, 18 N.W.2d 513 (1945).
31
Cook v. Ketchmark, supra note 30.
32
In re Estate of Thompson, supra note 30.
33
In re Estate of Goist, supra note 30.
34
In re Estate of Kajewski, 134 Neb. 485, 279 N.W. 185 (1938).
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Cite as 292 Neb. 237court correctly instructed the jury that when a beneficiary
assisted in the preparation of the will, there was a presump-
tion that undue influence secured the will. But we explained
that because “the presumption is the only evidence of undue
influence, and the presumption is not evidence, there is no
evidence sufficient to submit the question of undue influence
to the jury.”35 Thus, we stated that the matter of undue influ-
ence as to a particular beneficiary was erroneously submitted
to the jury.
And we note that these earlier cases, including the three
cases mentioned in the comment to NJI2d Civ. 16.07, predate
the probate code. To the extent any of those cases indicate that
a presumption of undue influence would remain after the pro-
ponent provided sufficient evidence to meet his or her burden
of producing evidence, the statute36 overrules that notion.
At oral argument, the proponents’ counsel asserted that he
was unable to find any decision of this court sanctioning a jury
instruction regarding a presumption of undue influence. The
contestants did not cite to any such decision. And we are per-
suaded that sound reasons dictate against using the language of
presumption in charging the jury in a will contest.
Where an appellate court reviews a bench trial or a ruling
granting a directed verdict, it makes little difference whether
the court speaks of a presumption or a permissible or probable
inference. As we said in In re Estate of Hedke, one does not
exert undue influence in a crowd.37 It is usually surrounded by
all possible secrecy; it is usually difficult to prove by direct
evidence; and it rests largely on inferences drawn from facts
and circumstances surrounding the testator’s life, character,
and mental condition. In determining whether undue influ-
ence existed, a court must also consider whether the evidence
35
Id. at 493, 279 N.W. at 189.
36
See § 30-2431.
37
In re Estate of Hedke, supra note 15.
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Cite as 292 Neb. 237shows that a person inclined to exert improper control over the
testator had the opportunity to do so.38 It was in that context
that we referred to a presumption of undue influence arising
from a contestant’s evidence of a confidential or fiduciary
relationship, coupled with other suspicious circumstances. And
where a court is considering whether the evidence was suffi-
cient to sustain a contestant’s burden of producing evidence, or
whether the burden of going forward with evidence has shifted
to a proponent, it may be that using the terminology of pre-
sumption causes no harm.
But where a contestant has met the burden of going forward
and a proponent has met the burden of producing contrary
evidence in response, the language of presumption becomes
unimportant and potentially misleading. An instruction that a
“presumption” of undue influence exists would conflict with
the statutory burden of persuasion that must be satisfied by the
contestant. And it could easily be seen by a jury as placing the
judge’s imprimatur on the contestant’s claim.
We reaffirm our prior holding from McGowan v. McGowan,39
and declare that the concept referred to as a “presumption of
undue influence” in will contests is not a true presumption. We
discourage continued use of this terminology, particularly in a
matter tried to a jury.
[13,14] A trial court should focus instead on the evidence
presented. If a contestant’s evidence shows a confidential
or fiduciary relationship, coupled with other suspicious cir-
cumstances, the contestant has introduced evidence sufficient
to justify an inference of undue influence.40 In other words,
that evidence is sufficient to sustain the contestant’s prima
facie case of undue influence. The inference of undue influ-
ence may be rebutted by proof that the testator had competent
38
Id.39
McGowan v. McGowan, supra note 20.
40
See In re Estate of Novak, supra note 23.
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Cite as 292 Neb. 237i­ndependent advice and that the will was his or her own vol-
untary act.41 Throughout the proceeding, the statute places the
ultimate burden of persuasion on the contestant.
[15] And a “tie” is not enough to sustain a contestant’s
burden of persuasion. The party seeking to establish such
influence has not met his or her burden of proof if all of the
evidence is circumstantial and the inferences to be drawn
therefrom are equally consistent with the hypothesis that undue
influence was not exercised and the hypothesis that such influ-
ence was exercised.42
[16] The district court did not err in refusing the contestants’
proposed instructions, because there is no true presumption of
undue influence where both the contestant and the proponent
have met their respective burdens of production of evidence.
The contestants did not assign error to the court’s submission
of the factual issue to the jury. Rather, they argue that the jury
should have been instructed in the language of presumption.
We disagree. To establish reversible error from a court’s fail-
ure to give a requested jury instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted
by the evidence, and (3) the appellant was prejudiced by the
court’s failure to give the requested instruction.43 At the time
of submission of the issue to the jury, the court had determined
that each side had produced sufficient evidence, if believed,
to sustain its respective burden of going forward. Because the
contestants’ proposed instructions referred to a “presumption of
undue influence” and at that stage, there was no such presump-
tion, their tendered instructions were not a correct statement of
the law and could mislead the jury.
[17] The jury instructions as a whole correctly charged
the jury regarding undue influence. Jury instructions do not
41
Id.42
See Goff v. Weeks, supra note 17.
43
Hike v. State, supra note 8.
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Cite as 292 Neb. 237constitute prejudicial error if, taken as a whole, they correctly
state the law, are not misleading, and adequately cover the
issues supported by the pleadings and evidence.44 In instruct-
ing the jury as to direct and circumstantial evidence, the dis-
trict court informed the jury that “[c]ircumstantial evidence
is evidence of one or more facts from which another fact can
logically be inferred” and that “[a] fact may be proved by
either direct evidence or circumstantial evidence or both.”
As part of the instruction on the burden of proof, the court
advised the jury that “[w]here two inferences may be drawn
from the facts proved, which inferences are opposed to each
other but are equally consistent with the facts proved, a party
having the burden of proof on an issue may not meet that
burden by relying solely on the inference favoring that party.”
And with regard to undue influence, the court provided the
jury with the correct definition and with the correct elements
that the contestants had the ultimate burden to prove. The
court did not err in instructing the jury.
Our opinion should not be interpreted to mean that it would
never be appropriate to include an instruction regarding a per-
missible inference in a will contest involving undue influence.
But no such instruction was requested in this case, and we
decline to expound on a hypothetical situation.
Although our reasoning differs somewhat from that of the
Court of Appeals, we affirm its determination that the district
court did not err in refusing to give the contestants’ tendered
jury instructions.
(b) Jury Question on
Burden of Proof
The contestants also argue that the district court erred by
refusing to further instruct the jury on the burden of proof.
During deliberation, the jury asked the court to explain the
difference between “[g]reater weight of the evidence” and
44
Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
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Cite as 292 Neb. 237“shadow of doubt.” The court merely referred the jury to
instruction No. 7, which defined the burden of proof primarily
using the pattern instruction.45
[18] The Court of Appeals determined that this instruction
was a correct statement of the law. On further review, the con-
testants do not quarrel with this assessment. And the general
rule is that whenever applicable, the Nebraska Jury Instructions
are to be used.46
The contestants do not dispute that the district court’s action
is reviewed for abuse of discretion. They argue that the jury’s
question showed its confusion with regard to the meaning
of the instruction and that the court should have “responded
with a simple ‘no’ or with some explanation of the difference
between civil and criminal burdens of proof.”47
[19] The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has con-
siderable discretion in determining how to respond to commu-
nications indicating that the jury is experiencing confusion.48
None of the instructions referred to “shadow of doubt.” By
directing the jury back to the correct burden of proof, the dis-
trict court declined to inject law that did not pertain to the case.
And the Court of Appeals correctly held that in so doing, the
district court did not abuse its discretion.
2. Video
The district court received into evidence the video of Mary
Ann’s execution of her 2001 will but instructed the jury to
disregard the specific questions asked by Mary Ann’s attor-
ney regarding influence and whether Calvin influenced Mary
Ann. The court further instructed the jury that those ques-
tions and answers could not be considered as evidence on the
45
See NJI2d 2.12A (defining “greater weight of the evidence”).
46
Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
47
Brief for appellants on petition for further review at 50.
48
See U.S. v. Parker, 903 F.2d 91 (2d Cir. 1990).
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Cite as 292 Neb. 237issue of undue influence. The jury viewed the video during
the trial, and the video was sent into the jury room during
deliberation.
(a) Admission of Video
The contestants argue that the video should not have been
admitted into evidence for three reasons. First, they contend
that it was inadmissible hearsay. Second, they argue that the
district court abused its discretion in failing to exclude the
video under § 27-403, which, they claim, provided two bases
for its exclusion: that the video’s probative value was substan-
tially outweighed by the danger of unfair prejudice and that it
was cumulative. Finally, they argue that admission of the video
violated their right of cross-examination.
(i) Hearsay
We find no merit to the contestants’ hearsay objection. The
district court excluded the questions and answers regarding
undue influence. As a result, the video’s content largely fell
outside the definition of hearsay.49 Proof of Mary Ann’s con-
duct, demeanor, and statements not admitted for the truth of
what she said, was not hearsay. And contrary to the contest­
ants’ argument, the “state of mind” exception applied to her
statements regarding her intentions for the disposition of her
property.50 Because the portions of the video admitted by the
district court communicated Mary Ann’s state of mind at the
time, the Court of Appeals correctly rejected the contestants’
hearsay argument.
49
Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008) (hearsay
is statement, other than one made by declarant while testifying at trial or
hearing, offered in evidence to prove truth of matter asserted).
50
§ 27-803(2) (excluding from hearsay rule “[a] statement of the declarant’s
then existing state of mind, emotion, sensation, or physical condition
. . . , but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant’s will”).
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We agree with the Court of Appeals that the district court
did not abuse its discretion under § 27-403.51 The contestants
raise the same two arguments here.
[20] In an effort to establish unfair prejudice, the contest­
ants argue that the district court could not “‘unring the bell’”
regarding the questions and Mary Ann’s answers on undue
influence.52 But the court directed the jury to disregard those
questions and answers. It is presumed a jury followed the
instructions given in arriving at its verdict, and unless it affirm­
atively appears to the contrary, it cannot be said that such
instructions were disregarded.53 The contestants have failed to
point to anything in the record showing that the instructions
were disregarded. They also argue that Mary Ann’s attorney’s
questions were leading, but they fail to explain how the ques-
tions were unfairly prejudicial.
The contestants also argue that the video was cumulative.
At the time the video was offered into evidence, the 2001
will had already been received into evidence and Mary Ann’s
attorney at the time of its execution had testified regarding her
testamentary capacity and reasoning. We digress to observe
that the admission of a video recording showing the execution
of a will is not novel in Nebraska54 or elsewhere.55
51
§ 27-403 (“evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence”).
52
Brief for appellants on petition for further review at 47.
53
Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122(2004).
54
See In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989).
55
See, e.g., Patterson-Fowlkes v. Chancey, 291 Ga. 601, 732 S.E.2d 252(2012); Corley v. Munro, 631 So. 2d 708 (La. App. 1994); Geduldig v.
Posner, 129 Md. App. 490, 743 A.2d 247 (1999); Matter of Burack, 201
A.D.2d 561, 607 N.Y.S.2d 711 (1994); Matter of Estate of Seegers, 733
P.2d 418 (Okla. App. 1986).
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Cite as 292 Neb. 237[21] Although the action focused on the 2011 will, the
proponents offered evidence of the 2001 will in order to
establish a consistent estate plan. We have stated that a prior
will, executed when the testator’s testamentary or mental
capacity was and is unquestioned, and as to which the exis-
tence of undue influence is not charged, and which conforms
substantially as to the results produced to the instrument
contested, may be considered as competent evidence for the
purpose of refuting charges of undue influence or want of
testamentary or mental capacity by showing that the testator
had a constant and abiding scheme for the distribution of his
property.56 Here, both the 2001 will and the 2011 will left the
entire farm to Calvin. If the contestants were not challenging
the validity of the 2001 will, their argument regarding the
cumulative nature of the video might have merit. But when
the video was offered and received, both wills were under
attack based upon lack of testamentary capacity and undue
influence. As the Court of Appeals observed, “the jury had
not observed nor heard, firsthand, from Mary Ann.”57 The
video provided the jury with a direct opportunity to assess
Mary Ann’s testamentary capacity. And after the directed ver-
dict on testamentary capacity, the record shows no attempt to
have the video stricken.
(iii) Cross-Examination
[22] Finally, the contestants argue that they had no oppor-
tunity to cross-examine Mary Ann. This is a civil case,
and the Sixth Amendment right to confront witnesses and
its Nebraska equivalent do not apply.58 But the contestants
appear to assert a broad entitlement to cross-examination
rather than a constitutional right. The principles underlying
56
See In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).
57
In re Estate of Clinger, supra note 1, 22 Neb. App. at 703, 860 N.W.2d at
209.
58
See Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
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Cite as 292 Neb. 237the right to confront witnesses as part of the factfinding
process are also applicable in civil cases. We recognize that
Nebraska’s evidentiary rules contemplate cross-examination
of witnesses in all cases.59
[23,24] Closely related to the right of confrontation or cross-
examination is the hearsay rule. “[I]t may readily be conceded
that hearsay rules and the Confrontation Clause are generally
designed to protect similar values . . . .”60 The idea behind both
concepts is that the witness should be made available at trial
so that he or she may be subjected to cross-examination under
oath. When a witness is unavailable for cross-examination, his
or her statements are admissible only if they bear adequate
indicia of reliability.61 Hearsay that falls within a firmly rooted
hearsay exception is presumptively reliable and trustworthy.62
We recognize that this principle cannot be applied in a crimi-
nal case, because it would violate the current understanding of
the Confrontation Clause.63 But the principle remains valid in
the context of a civil case.
Here, there was no infringement of the contestants’ broad
right to cross-examination. The contestants were able to cross-
examine the individual who supervised the 2001 will execu-
tion—and who was the person responsible for making and
preserving the video. And while neither the video itself nor
Mary Ann could be cross-examined at trial, our rules of evi-
dence recognize such impossibilities and provide numerous
59
See Neb. Evid. R. 611, Neb. Rev. Stat. § 27-611 (Reissue 2008).
60
California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 26 L. Ed. 2d 489(1970).
61
State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007),
citing Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597(1980), overruled, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004).
62
See State v. Sheets, supra note 61.
63
See Crawford v. Washington, supra note 61.
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Cite as 292 Neb. 237exceptions to the hearsay rule.64 As we determined above,
the video’s content was admissible because it either was not
hearsay or fell within an exception to the hearsay rule. To the
extent it fell within a firmly rooted hearsay exception, there
was sufficient indicia of reliability such that the contestants’
right to cross-examination was not violated.
(b) Use of Video in
Jury Deliberations
Finally, the contestants argue that the Court of Appeals
erred in affirming the district court’s decision to allow the
jury access to the video during its deliberations. The Court
of Appeals ultimately founded its decision on our opinion in
State v. Vandever.65
In Vandever, we interpreted the meaning of the word “testi-
mony” used in the statute66 permitting a court to allow a jury
to rehear testimony during deliberation. We determined that it
encompassed evidence authorized as “testimony” under another
statute,67 which enumerated the four modes of taking the “tes-
timony of witnesses.”68 Thus, we held that a jury’s request to
rehear an 8-minute investigator interview recording was not a
request relating to “testimony” as used in the first statute.
But the Court of Appeals first acknowledged that there
was no indication in the record that the jury had the neces-
sary equipment to replay the video and that the record did
not show that the contestants ever objected to the delivery of
the video to the jury room with the other exhibits. Neither the
64
See § 27-803 and Neb. Evid. R. 804, Neb. Rev. Stat. § 27-804 (Reissue
2008).
65
State v. Vandever, supra note 5.
66
See Neb. Rev. Stat. § 25-1116 (Reissue 2008).
67
Neb. Rev. Stat. § 25-1240 (Reissue 2008).
68
Id. (affidavit, deposition, oral examination, and “videotape of an exam­
ination conducted prior to the time of trial for use at trial in accordance
with procedures provided by law”).
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Cite as 292 Neb. 237contestants nor the proponents dispute the state of the record.
Thus, the record does not establish either that the contestants
objected or that the jury replayed the video.
[25-27] Two principles of appellate review preclude us
from reaching this assignment. We have often stated that a
litigant’s failure to make a timely objection waives the right
to assert prejudicial error on appeal.69 And an equally funda-
mental principle is that error without prejudice provides no
ground for relief on appeal.70 On the state of the record, we
cannot reach this issue without indulging in pure speculation
beyond the record. Upon further review from a judgment of the
Nebraska Court of Appeals, the Nebraska Supreme Court will
not reverse a judgment which it deems to be correct simply
because its reasoning differs from that employed by the Court
of Appeals.71
VI. CONCLUSION
On further review, we conclude that the Court of Appeals
did not err in affirming the district court’s
• refusal of the contestants’ proposed instructions regarding a
“presumption of undue influence”;
• refusal, in response to a jury question, to further instruct the
jury regarding the burden of proof; and
• admission into evidence of the video of the 2001 will exe-
cution subject to an instruction to disregard a portion of
the exhibit.
We also determine that the contestants did not preserve an
objection to, or show prejudicial error from, the district court’s
decision to allow the jury access to the video during its
deliberations. We therefore affirm the decision of the Court
of Appeals.
A ffirmed.
69
In re Estate of Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
70
See Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789(2015).
71
Id.