Bohling v. Bohling , 309 Neb. 625 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/06/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
BOHLING v. BOHLING
Cite as 309 Neb. 625Robert Bohling, appellant, v.
Kimberly Bohling, appellee.
___ N.W.2d ___
Filed July 2, 2021. No. S-20-502.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Wills: Appeal and Error. Whether a provision in a will is too uncertain
to be valid presents a question of law which an appellate court reviews
de novo.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court reaches a conclusion independent of the determination
reached by the court below.
5. Decedents’ Estates: Wills. When a will contest is transferred from
the probate court to the district court pursuant to Neb. Rev. Stat.
§ 30-2429.01 (Reissue 2016), the district court’s authority over the pro-
ceedings is limited to determining whether the decedent left a valid will.
6. ____: ____. Issues regarding construction of the will are properly left to
the probate court, except where they bear on the will’s validity.
7. ____: ____. A will’s validity can be attacked on grounds of lack of tes-
tamentary capacity, fraud, undue influence, improper execution, forgery,
or a subsequent revocation of the will by a later document. Additionally,
the validity of a provision in a will or codicil can be challenged on
grounds it is too indefinite or uncertain to effectuate any testamentary
purpose of a will under Nebraska law.
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BOHLING v. BOHLING
Cite as 309 Neb. 6258. ____: ____. Generally, in testamentary dispositions of property, both the
property and the person to whom it is given must be set forth with suf-
ficient certainty that the court can give effect to the disposition.
9. Summary Judgment: Affidavits. Affidavits used to support and oppose
a motion for summary judgment must be made on personal knowledge,
must set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters
stated therein.
10. Summary Judgment. Conclusions based upon guess, speculation, con-
jecture, or a choice of possibilities do not create material issues of fact
for purposes of summary judgment.
Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Affirmed.
Angelo M. Ligouri, of Ligouri Law Office, for appellant.
Richard R. Smith for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In this will contest case, Robert Bohling appeals from the
district court’s entry of summary judgment finding that his
father left a valid will. We affirm.
I. BACKGROUND
Willis D. Bohling (Bohling) died on March 27, 2018. He
was survived by two adult children, Kimberly Bohling and
Robert, as well as Robert’s two minor sons. Bohling left a self-
proved will, 1 dated July 13, 2015, which provided in part:
I, WILLIS BOHLING, presently of rural Tecumseh,
Johnson County, Nebraska, do make publish and declare
this to be my Last Will hereby revoking all Wills formerly
made by me.
FIRST: I do hereby appoint my daughter, Kimberly
Bohling, Personal Representative of my Estate. If
1
Neb. Rev. Stat. § 30-2329 (Reissue 2016).
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BOHLING v. BOHLING
Cite as 309 Neb. 625Kimberly Bohling is unable or unwilling to serve as
Personal Representative, then and in that event, I do hereby
appoint my son, Robert Bohling, Personal Representative
of my Estate. In either event, I do direct that my Personal
Representative shall not be required to post Bond.
SECOND: All of the balance residue and remainder
of my Estate, whether real or personal and regardless of
where situated, I do hereby give devise and bequeath unto
my daughter, Kimberly Bohling. I am not unmindful of
my son, Robert Bohling, but it is my Will that he receive
nothing hereunder.
Paragraph “SECOND” contains the only dispositional provi-
sion in Bohling’s will, and it is the focus of this will contest.
1. Probate Proceedings
In April 2018, Kimberly initiated informal probate proceed-
ings in the county court for Johnson County and was appointed
personal representative of Bohling’s estate. Thereafter, Robert
entered his appearance and objected to the application for
informal probate and to Kimberly’s appointment as personal
representative. Robert also filed a petition seeking dismissal of
the informal probate application and requesting a determina-
tion of intestacy, a determination of heirs, and appointment of
a special administrator.
In his objection, Robert presented three reasons why the
2015 will should not be probated. He claimed that (1) the 2015
will was “incomplete,” because it referred only to the “‘balance
residue and remainder’” of Bohling’s estate and thus failed to
make a devise of the entire estate; (2) Bohling lacked testamen-
tary capacity when he executed the will; and (3) the will was
the product of Kimberly’s undue influence. Kimberly denied
Robert’s allegations, and the will contest was transferred to the
district court for Johnson County to determine whether Bohling
left a valid will. 2
2
See Neb. Rev. Stat. § 30-2429.01(1) (Cum. Supp. 2020).
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BOHLING v. BOHLING
Cite as 309 Neb. 6252. District Court Proceedings
In the district court, Kimberly moved for summary judg-
ment, asserting the will was valid and should be admitted to
probate. After an evidentiary hearing, the district court granted
summary judgment in Kimberly’s favor, and Robert appealed.
After moving the appeal to our docket, we noted that the bill
of exceptions contained only Robert’s evidence opposing sum-
mary judgment. Because Kimberly’s exhibits had not been
properly marked and received into evidence, we concluded
the appellate record did not support summary judgment in
Kimberly’s favor, and we reversed the judgment and remanded
the cause for further proceedings. 3
On remand, both parties moved for summary judgment. At
the hearing on the competing summary judgment motions,
the district court received a certified copy of Bohling’s 2015
will. Both parties offered affidavits, which the court received
over objections. In overruling the various objections, the court
stated it would not consider any evidence that lacked founda-
tion, was irrelevant, or amounted to inadmissible hearsay or
improper opinions and conclusions. As relevant to the issues on
appeal, we summarize the evidence received on the competing
summary judgment motions.
(a) Kimberly’s Evidence
To support her contention that Bohling’s 2015 will was
valid, Kimberly offered her own affidavit and the affidavit of
the attorney who drafted the will, Thomas Morrissey.
(i) Morrissey’s Affidavit
Morrissey averred that he has actively practiced law in
Nebraska for 59 years. Sometime in 2015, Bohling scheduled a
meeting at Morrissey’s office to discuss drafting a will. Bohling
arrived for the meeting alone, and he and Morrissey discussed
at length the nature and extent of Bohling’s property and
3
See Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
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BOHLING v. BOHLING
Cite as 309 Neb. 625the identity of Bohling’s natural heirs. Bohling expressed his
intent to leave all of his property to Kimberly and to disinherit
Robert, and he directed Morrissey to draft a will in accord­ance
with those intentions. After the consultation, Morrissey was
satisfied that Bohling had the capacity to make a will, and he
drafted a will pursuant to Bohling’s instructions.
Bohling returned to Morrissey’s office on July 13, 2015,
and again he was alone. Morrissey discussed the proposed will
with Bohling, and Bohling appeared to have no difficulty fol-
lowing the discussion. After Bohling reviewed the proposed
will, two witnesses joined them. While the witnesses were
present, Bohling confirmed he had read the proposed will, it
represented his last will and testament, he understood the attes-
tation clause of the will, and he wanted the individuals present
to witness him sign the will. Bohling also confirmed he was
signing the will freely and voluntarily, he was over 18 years
of age, he was of sound mind, and he was under no constraint
or undue influence. Morrissey was satisfied that Bohling had
testamentary capacity when he signed the will and that he was
not being unduly influenced by anyone to do so.
(ii) Kimberly’s Affidavit
Kimberly averred that Bohling lived alone from 2009 until
his death in 2018, during which time he managed his own
finances and generally took care of his own daily ­activities.
During Kimberly’s conversations with Bohling throughout
2015, she did not observe Bohling to be unclear in his thoughts,
to be unable to communicate his wishes clearly, or to exhibit
any memory problems. Kimberly denied ever discussing the
disposition of Bohling’s property with him. She also denied
encouraging Bohling to execute a will, and she averred that she
did not become aware of his 2015 will until after his death.
(b) Robert’s Evidence
At the summary judgment hearing, Robert offered his own
affidavit and affidavits from several of Bohling’s friends.
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BOHLING v. BOHLING
Cite as 309 Neb. 625We summarize only the portions of these affidavits that are
relevant to the issues raised on appeal.
(i) Robert’s Affidavit
Robert generally averred that he and his sons had a close
relationship with Bohling. They often worked together on
Bohling’s farm, splitting wood to heat the farm residence and
helping to maintain the farm, the fencing, and the equipment.
Robert’s sons also helped Bohling with weekly “dog chores,”
and Robert’s wife, a veterinarian, provided free vaccinations to
Bohling’s cattle.
Robert averred that “[t]hroughout my father’s lifetime, and
even as recently as a few months before his death, he told me
everything he owned would be split 50/50 between [Kimberly]
and me.” By way of example, Robert averred that the tract of
land on which Bohling lived “was owned by my sister and
I, together, as our parents wanted it that way,” and he stated
that after their mother died in 2009, he and Kimberly each
received some of their parents’ possessions because the parents
“wanted their property passed down to us equally.” Robert
posits that “[i]f [Bohling] had no intentions of me receiving
any of his possessions, then he would not have told me which
antiques, guns, farm equipment, tools, and safe deposit box to
keep.” According to Robert, Bohling had “specific things he
wanted to leave and pass down” to his only two grandsons,
and there was “no way that my father would have disinherited
me, because he would have known that meant disinheriting
my boys.”
Robert also expressed his opinion that Bohling’s 2015 will
was “incomplete” because it referred only to the “‘balance resi-
due and remainder’” of his estate and not to “his entire Estate.”
According to Robert, “[t]here would be absolutely no way
that my father would have known that ‘balance residue and
remainder’ was going to be turned into everything he owns,
and not the balance or residue that would be left over after
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BOHLING v. BOHLING
Cite as 309 Neb. 625[his] specific intentions were carried out.” Robert suggests the
language of the will showed that Bohling’s intentions “were to
only transfer the leftovers, the remains after his two children
split what he intended us to receive, just [as] he stated to us
and just as been done with us throughout our entire lives.”
Robert also opined that Bohling’s 2015 will was the product
of Kimberly’s undue influence. According to Robert, Kimberly
was “regularly” at Bohling’s house and “the only way [Bohling]
would have had a [w]ill is at Kimberly’s consistent demand
for one.”
(ii) Affidavits of Bohling’s Friends
Robert also submitted affidavits from four of Bohling’s
friends, including the woman Bohling was dating before his
death. As relevant to the issues on appeal, these individuals
generally averred that throughout his life, Bohling expressed
his intent to divide his personal property equally between
Robert and Kimberly. All of Bohling’s friends described a good
relationship between Bohling and Robert, and all expressed
their opinion that Bohling would not have deliberately dis-
inherited Robert. Specifically, one friend expressed that “[i]t
would’ve . . . been completely out of character for [Bohling] to
disinherit [Robert] and in turn disinherit his two grand­children,
considering how proud he always was of them.” Another
expressed that Bohling “always maintained a close relationship
with [Robert]” and “I can securely say, that he would never
have intentionally disinherited his son and grandchildren.”
Still another friend stated he did not “believe that there is any
circumstance that in sound mind and body [Bohling] would
have disinherited his son.” And the woman Bohling was dat-
ing stated that she did not think Bohling “would have chosen
or intended to disinherit his only son.” She believed “there
must have been a miscommunication, misunderstanding, or
misrepresentation to [Bohling] that would have created such
a circumstance.”
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BOHLING v. BOHLING
Cite as 309 Neb. 625(c) District Court’s Judgment
In an order entered June 19, 2020, the district court granted
summary judgment in favor of Kimberly, finding that she met
her burden of establishing a validly executed will pursuant to
Neb. Rev. Stat. § 30-2431 (Reissue 2016) and that Robert’s
evidence failed to create a genuine issue of fact regarding the
will’s validity.
The court specifically rejected Robert’s claim that the dispo-
sitional provision in the will was invalid. It noted that paragraph
“SECOND” contained the only dispositional provision in the
will, and although the court described the language as “some-
what unartful,” it concluded that the contested provision was a
“clear, unambiguous devise and/or distribution of [Bohling’s]
entire estate.” The court expressly rejected Robert’s contention
that a general residuary clause must be preceded by a specific
bequest to be effective, reasoning that such a position was con-
trary to the rule of construction expressed in Neb. Rev. Stat.
§ 30-2342 (Reissue 2016), which states that “a general resid­
uary clause in a will . . . is construed to pass all property which
the testator owns at his death including property acquired after
the execution of the will.”
The court also found no genuine issue of fact regarding
Bohling’s testamentary capacity. It reasoned that Bohling’s
self-proved will established prima facie proof of testamentary
capacity, 4 and Robert’s affidavits did not rebut that presump-
tion because they contained only “unsupported opinions” and
“no facts” from which the court could reasonably infer that
Bohling lacked testamentary capacity. The court further found
that Morrissey’s affidavit fully supported the conclusion that
Bohling possessed testamentary capacity at the time he exe-
cuted the will.
Finally, the court found no genuine issue of material fact
regarding Robert’s claim that Bohling’s will was the product
4
See In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994).
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BOHLING v. BOHLING
Cite as 309 Neb. 625of Kimberly’s undue influence. The court reasoned that to pre-
vail on such a claim, Robert had to prove by a preponderance
of the evidence that (1) the testator was subject to undue influ-
ence, (2) there was an opportunity to exercise such influence,
(3) there was a disposition to exercise such influence, and (4)
the result was clearly the effect of such influence. 5 It found that
Robert had failed to adduce any evidence “as to how or when
[the undue influence was] to have taken place” and that there-
fore, he had not established there was a factual issue to prevent
summary judgment on the issue of undue influence.
After concluding the evidence was undisputed that Bohling
left a valid will, the district court sustained Kimberly’s
motion for summary judgment, overruled Robert’s competing
motion, and certified its judgment to the county court. 6 Robert
timely appealed, and we moved the case to our docket on our
own motion.
II. ASSIGNMENTS OF ERROR
Robert assigns five errors, which we consolidate and restate
into two. He claims the district court erred in granting summary
judgment in favor of Kimberly because (1) the dispositional
provision in Bohling’s will was incomplete, and therefore
invalid, and (2) there were genuine factual disputes regarding
testamentary capacity and undue influence which should have
precluded summary judgment, but the court failed to consider
Robert’s evidence or afford him the benefit of all reasonable
inferences from that evidence.
III. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
5
See In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). See, also,
§ 30-2431 (contestant of will has burden to establish undue influence).
6
See § 30-2429.01(5).
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BOHLING v. BOHLING
Cite as 309 Neb. 625or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. 7 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 8
[3,4] Whether a provision in a will is too uncertain to be
valid presents a question of law which an appellate court
reviews de novo. 9 When reviewing questions of law, an appel-
late court reaches a conclusion independent of the determina-
tion reached by the court below. 10
IV. ANALYSIS
1. Will Contests Transferred
to District Court
[5] Before analyzing Robert’s assigned errors, we address
the jurisdictional constraints that are present when a will con-
test is transferred from probate court to district court pursuant
to § 30-2429.01. It is necessary to address jurisdiction because
both parties’ appellate briefing devotes considerable argument
to how certain provisions in Bohling’s will—namely the dis-
positional provision and the provision regarding disinheritance
in paragraph “SECOND”—should be construed. But when
a will contest is transferred to the district court pursuant to
§ 30-2429.01, the district court’s authority over the proceed-
ings is limited to “determin[ing] whether the decedent left a
valid will.” 11 And once the county court clerk transmits the
7
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
8
Id.
9See In re Estate of Casselman, 219 Neb. 516, 364 N.W.2d 27 (1985). See,
also, Foster v. Foster, 196 W. Va. 341, 472 S.E.2d 678 (1996) (whether
will is invalid due to uncertainty presents legal question).
10
See In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).
11
§ 30-2429.01(4). See, also, In re Estate of Casselman, supra note 9.
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Cite as 309 Neb. 625required certification and docket fee to the district court clerk,
the district court has “jurisdiction over the proceeding on the
contest.” 12 Given the jurisdictional parameters of a will con-
test transferred from probate court to district court pursuant to
§ 30-2429.01, the narrow question before the district court in
this case was whether Bohling left a valid will. 13 Similarly, our
appellate review is confined to whether the district court erred
in granting summary judgment in favor of Kimberly on the
question of whether Bohling left a valid will.
[6] Consequently, although the parties have focused much
of their argument on how to construe provisions in the will,
we will consider such arguments only insofar as they bear on
the will’s validity. Similarly, to the extent some of the district
court’s comments can be read to express an opinion on the
proper construction of the will’s dispositional language or the
disinheritance provision, we disapprove of such a reading. Any
issues regarding construction of the will are properly left to the
probate court, except where they bear on the will’s validity. 14
With this framework in mind, we address Robert’s assign-
ments of error.
2. Validity of Bohling’s Will
[7] A will’s validity can be attacked on grounds of “‘lack
of testamentary capacity, fraud, undue influence, improper
execution, forgery, or a subsequent revocation of the will by a
12
See § 30-2429.01(3) (emphasis supplied).
13
See § 30-2429.01(3). See, also, In re Estate of Sehi, 17 Neb. App. 697,
772 N.W.2d 103 (2009) (holding district court’s jurisdiction to hear will
contest pursuant to § 30-2429.01 is limited to determining validity).
14
See Neb. Rev. Stat. § 30-2211 (Reissue 2016) (providing county courts
have jurisdiction over decedents’ estates, including construction of wills).
See, also, Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019)
(holding, in declaratory judgment action seeking construction of will, that
when county courts and district courts have concurrent jurisdiction over
construction of will, doctrine of jurisdictional priority applies and first
court to acquire jurisdiction retains it).
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Cite as 309 Neb. 625later document.’” 15 Additionally, the validity of a provision in
a will or codicil can be challenged on grounds it is too indefi-
nite or uncertain to effectuate any testamentary purpose of a
will under Nebraska law. 16 In this will contest, Robert origi-
nally challenged the validity of Bohling’s 2015 will on three
grounds: lack of testamentary capacity, undue influence, and
uncertainty of the will’s only dispositional provision.
When the validity of a will is contested, the proponent of the
will has “the burden of establishing prima facie proof of due
execution, death, testamentary capacity, and venue,” whereas
contestants have “the burden of establishing undue influence,
fraud, duress, mistake[,] or revocation.” 17
Robert has never claimed that Kimberly failed to meet her
burden of establishing death, venue, or due execution, and
we discern no genuine issue of material fact regarding any of
those issues. We therefore focus our analysis on whether the
district court erred in granting summary judgment in favor of
Kimberly on the contested issues of (1) whether the disposi-
tional provision of the will fails for uncertainty, (2) whether
Bohling lacked testamentary capacity, and (3) whether the will
was the result of Kimberly’s undue influence.
(a) Dispositional Provision Does
Not Fail for Uncertainty
We understand Robert’s primary challenge to the valid-
ity of the will to center on the first sentence of paragraph
“SECOND,” which provides: “All of the balance residue and
15
Martin v. Ullsperger, 284 Neb. 526, 530, 822 N.W.2d 382, 385 (2012),
quoting Annot., 3 A.L.R. 5th 590 (1992). See, also, In re Estate of Barger,
303 Neb. 817, 931 N.W.2d 660 (2019).
16
See, In re Estate of Casselman, supra note 9 (holding provisions in
codicil failed for uncertainty, and thus entire codicil was invalid); Kepley
v. Caldwell, 96 Neb. 748, 148 N.W. 966 (1914) (holding residuary clause
in will was too indefinite and uncertain for enforcement and thus was
invalid).
17
§ 30-2431.
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Cite as 309 Neb. 625remainder of my Estate, whether real or personal and regardless
of where situated, I do hereby give devise and bequeath unto
my daughter, Kimberly Bohling.” Robert describes this provi-
sion as a residuary clause that devised only the “leftovers” 18 of
Bohling’s estate. To the extent Robert’s arguments can be con-
strued as challenging the validity of the will at all, he suggests
the will is invalid because its only dispositional provision is
“explicitly reliant on a prior transfer occurring,” 19 and the will
contains no other defined bequests. His argument, essentially,
is that this provision is too incomplete, indefinite, or uncertain
to effectuate any testamentary disposition. The district court
rejected Robert’s suggestion, and so do we.
[8] As already noted, the validity of a provision in a will
or codicil can be challenged on grounds it is too indefinite or
uncertain to effectuate any testamentary purpose. 20 Generally,
in testamentary dispositions of property, both the property and
the person to whom it is given must be set forth with sufficient
certainty that the court can give effect to the disposition. 21 And
since paragraph “SECOND” is the only dispositional provision
in Bohling’s will, it follows that if the only dispositional pro-
vision fails, the will would be invalid because a testamentary
disposition is a necessary component of a valid will. 22 But we
agree with the district court that the dispositional provision in
Bohling’s will does not fail for uncertainty.
The district court characterized the dispositional provision
in paragraph “SECOND” as a general residuary clause, and it
18
Brief for appellant at 24.
19
Id.
20See, In re Estate of Casselman, supra note 9; Kepley, supra note 16.
21
See 1 Jeffrey A. Schoenblum, Page on the Law of Wills, § 5.11 (2003).
22
See Neb. Rev. Stat. § 30-2209(53) (Reissue 2016). See, also, 1 Schoenblum,
supra note 21, §§ 5.3 and 5.4 (noting even when instrument is executed
with formalities prescribed for wills, if it makes no effective disposition
of property whatsoever, it is nontestamentary instrument not admissible
to probate).
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Cite as 309 Neb. 625noted the rule of construction established in § 30-2342, which
states “a general residuary clause in a will or a will making
general disposition of all of the property of the testator is con-
strued to pass all property which the testator owns at his death
including property acquired after the execution of the will.”
Robert takes issue with the district court’s characterization. He
argues the dispositional provision in Bohling’s will should not
be construed as a “‘general residuary clause’ capable of trans-
ferring [Bohling’s] entire estate,” but, rather, as “a balance and
remainder clause, transferring only the leftovers.” 23 Robert’s
brief cites to no legal authority supporting the distinction he
proposes. But in this will contest, it is not necessary to decide
whether the sole dispositional provision in Bohling’s will is a
general residuary clause, some other type of residuary clause,
or even whether it is a residuary clause at all. 24 That is because,
as already discussed, matters of will construction, includ-
ing Robert’s claim that paragraph “SECOND” should not be
construed as a general residuary clause under § 30-2342, are
properly left to the probate court. 25
This will contest is confined to the relevant question of
the will’s validity, and Robert has directed us to no author-
ity supporting a conclusion that the dispositional provision in
Bohling’s will is too incomplete, indefinite, or uncertain to be
valid. We review our prior cases addressing invalidity based on
uncertainty, and find them instructive.
In Kepley v. Caldwell, 26 we considered a challenge to the
validity of a residuary clause that provided:
23
Brief for appellant at 26.
24
See, e.g., In re Estate of Johnson, 260 Neb. 91, 615 N.W.2d 98 (2000)
(discussing split of authority on whether provision purporting to dispose
of entire estate can ever constitute residuary devise).
25
See, §§ 30-2211 and 30-2429.01; In re Estate of Casselman, supra note 9;
Brinkman, supra note 14; In re Estate of Sehi, supra note 13.
26
Kepley, supra note 16, 96 Neb. at 749, 148 N.W.2d at 966.
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Cite as 309 Neb. 625“All personal property, except money, not otherwise dis-
posed of herein, is to be paid and distributed by my
executor as follows: To such persons, respectively, as
were my friends in my lifetime, and he may think suitable
and appropriate, observing my wishes in regard thereto
so far as he may know or have reason to believe what
they were.”
We held that the legatees and bequests in the residuary clause
were too indefinite and uncertain for enforcement, and thus the
clause was invalid. 27
In In re Estate of Casselman, 28 we considered a challenge
to the validity of a four-page codicil, which we described
as follows:
The introductory statement in the codicil sets out that
[the testator] declares “this to be a codicil to alter a will
and testiment [sic] . . . which at this time it is my feel-
ing is necessary to alter to fit the times and the changed
sit­uations.” Paragraph “1st” then states: “I hereby revoke
and hold for naught any or all bequests made to and on
behalf of [the testator’s son James] in my will or any other
manner.” In succeeding paragraphs the codicil expresses
[the testator’s] dissatisfaction with the property settlement
in a divorce case between [the testator] and his former
wife [and] provides that [the testator’s daughter Cynthia]
should have a place to live and should be helped through
school “by a loan of about half what a kid going through
on a shoe string would get”; . . . and that if [the testa-
tor’s son James] were to quit high school, he “shall be
provided a room, a TV[,] and $10.00 a month for funny
books or records until he reaches legal age although if [his
custody] goes to either one or the other of the executors
27
See id.
28In re Estate of Casselman, supra note 9, 219 Neb. at 518-19, 364 N.W.2d
at 29.
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Cite as 309 Neb. 625they shall recieve [sic] the same compensation for sup-
port as the other children and the TV, Records Books and
room is out.” The codicil further provided that if James
were to stay in school and go through college, he was
to be helped through with “a nominal amount” and that
“[i]n event James over comes his laziness disinterest in
property and management, sloppy and slothful living, lay-
ing around, lazyness [sic] and is not so influenced by his
mother to follow in her footsteps and he has proven him-
self then he maybe come [sic] a joint administrator of this
trust . . . .” “This trust” refers to [the testator’s] intention,
expressed later in the codicil, that “[a]ll of the Casselman
property shall be a sacared [sic] and God given trust be
used, beautified and held for our successors” and “for a
living and forwarding our education.” Paragraph “5th”
provided: “In event no one is interested in this property
after the above is fulfilled then a conference shall be held
equally between the Seventh Day adventist church and
Harvard preferably Law School, or business School, or
Divinity School to dispose or use the property . . . .”
Observing that the purported codicil recited “conflicting meth-
ods and aims,” 29 we ultimately concluded the entire codicil
failed for uncertainty and was not entitled to probate.
In contrast to the failed residuary clause in Kepley, and the
failed codicil in In re Estate of Casselman, the single disposi-
tional provision in Bohling’s will provides: “All of the balance
residue and remainder of my Estate, whether real or personal
and regardless of where situated, I do hereby give devise and
bequeath unto my daughter, Kimberly Bohling.” This provision
purports to make a testamentary devise of ascertainable real
and personal property to an identifiable devisee. 30 It is not in
conflict with any other provision in the will, and neither the
29
Id. at 520, 364 N.W.2d at 30.
30
See 1 Schoenblum, supra note 21.
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Cite as 309 Neb. 625subject nor the object of the devise is so indefinite or uncertain
as to be invalid. 31
While the proper construction of the language in paragraph
“SECOND” is a matter properly left to the probate court, we
conclude as a matter of law that the provision does not fail for
uncertainty; it is valid and entitled to probate.
(b) No Factual Dispute Regarding
Testamentary Capacity or
Undue Influence
In his remaining assignment of error, Robert claims that
when the court granted summary judgment in favor of Kimberly
on the issues of testamentary capacity and undue influence,
it “only considered the evidence presented by Kimberly.” 32
Robert argues that the court ignored statements contained in
his affidavit and in the affidavits of Bohling’s friends, which
he claims showed that Bohling “definitely would not have
disinherited or left his son out of his estate.” 33 Robert does not
quote or discuss any of the statements he claims were ignored,
but we understand his argument to pertain to the opinions we
quoted earlier in the background section, expressing the belief
that Bohling would not have deliberately disinherited Robert.
We limit our analysis accordingly.
According to Robert, these opinions created a material issue
of fact as to both testamentary capacity and undue influence,
because they suggested “the only way a disinheritance . . . could
have possibly happened, would have been purely by mistake,
confusion, miscommunication, or undue influence.” 34 Setting
aside whether Robert has proposed a reasonable inference
31
See, e.g., Blacker v. Thatcher, 145 F.2d 255 (9th Cir. 1944) (holding will
with single dispositional provision referencing residuum of estate was
sufficiently definite to pass entire estate to identified legatee).
32
Brief for appellant at 27.
33
Id.
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Cite as 309 Neb. 625from the opinions contained in the affidavits, we soundly reject
Robert’s claim that the district court improperly ignored this
evidence. Instead, we conclude the court aptly characterized
the statements to which Robert refers as “unsupported opin-
ions” which did not create a genuine issue of fact for purposes
of summary judgment.
[9,10] Affidavits used to support and oppose a motion for
summary judgment must be made on personal knowledge,
must set forth such facts as would be admissible in evidence,
and “shall show affirmatively that the affiant is competent to
testify to the matters stated therein.” 35 Moreover, conclusions
based upon guess, speculation, conjecture, or a choice of pos-
sibilities do not create material issues of fact for purposes of
summary judgment. 36
In this case, Robert and Bohling’s friends used slightly dif-
ferent language in their affidavits to express the same general
opinion or belief: that because Bohling had a good relationship
with Robert, he would not have intentionally disinherited him.
Kimberly objected to these opinions as being factually unsup-
ported, conclusory, and speculative. The court noted the objec-
tions and received the affidavits with the caveat that it would
“ignore any . . . unsupported conclusions.” Robert should not
have been surprised, then, when the court expressly found
that the “unsupported opinions” in Robert’s affidavits did not
create a genuine issue of material fact for purposes of sum-
mary judgment.
Robert does not assign error to the district court’s eviden-
tiary rulings, nor does he argue that the court’s characteriza-
tion of the statements as “unsupported opinions” was errone-
ous. Instead, he summarily argues that the district court erred
when it “failed to consider” 37 the opinions expressed in his
affidavits. This argument has no merit.
35
Neb. Rev. Stat. § 25-1334 (Reissue 2016).
36
Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
37
Brief for appellant at 28.
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Cite as 309 Neb. 625V. CONCLUSION
Because there is no merit to any of Robert’s assignments
of error, we affirm the judgment of the district court insofar
as it determined that Bohling’s 2015 will is valid and entitled
to probate.
Affirmed.