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Nebraska Supreme Court Construes Will: Intent To Disinherit Heir Must Be Express Or Necessarily Implied In Will

In In re Estate of Brinkman, the Nebraska Supreme Court construed the terms of a will to determine that a decedent did not intend to disinherit his daughter under the terms of his will.

The Facts Of In re Estate Of Brinkman

Michael Brinkman died on December 23, 2016 survived by two children, Nicole and Seth.  Michael’s will was admitted to probate, naming Kimberly Milius as personal representative.  Kimberly is Seth’s mother, but is not Nicole’s mother.  Nicole claimed that she was entitled to an undivided one-half interest in Michael’s estate — Kimberly and Seth argued that decedent sought to and did disinherit Nicole under the terms of the will.

The relevant portions of the will stated as follows:

ARTICLE I. The references in this Will to my “son” refer to my son, SETH MICHAEL BRINKMAN. The references in this Will to my “children” and/or my “issue” shall include my son, SETH MICHAEL BRINKMAN, and all children of mine born or adopted after the execution hereof.” . . . .

ARTICLE V. I give the residue of my estate to my issue, per stirpes. . . . .

ARTICLE VII. If at any time before final distribution there shall not be in existence anyone who is, or might become, entitled to receive benefits under the foregoing provisions of this Will, any portion remaining shall be distributed to the persons to whom and in the proportions in which the same would have been distributed had I died intestate, domiciled in the State of Nebraska, owning such assets immediately following the death of the last survivor of the class composed of my issue and myself.

Nicole is not mentioned by name in the will.

Nicole filed a motion to construe the will under Nebraska law, contending that an ambiguity existed in the term “issue.”  Nicole asserted that the term “issue” included both Nicole and Seth.  Kimberly (Seth’s mom and the personal representative) contended that the will was not ambiguous and that it disinherited Nicole.

The Nebraska county court found that the will was ambiguous with regard to whether Michael intended to disinherit Nicole.  The court interpreted the will and found that its language did not disinherit Nicole, because although the terms “issue” and “child” were defined in the will to include Seth, they did not clearly exclude Nicole.  Simply put, to include is not to exclude.  Thus, the county court determined that Nicole, as the decedent’s daughter, was included under the will as a child, an issue, and an heir of Michael. Kimberly and Seth appealed the decision.

When Does The Nebraska Supreme Court Have Subject Matter Jurisdiction Over a Probate Appeal?

Nicole first challenged the jurisdiction of the Nebraska Supreme Court to hear the will construction appeal.

In probate cases, Neb. Rev. Stat. § 30-1601(2) provides that “[a]n appeal may be taken by any party and may also be taken by any person against whom the final judgment or final order may be made or who may be affected thereby.”

The Nebraska Supreme Court stated that the grant of the right to appeal in probate cases is generous:

We have previously explained that the distribution of assets from an estate is a proceeding in rem and that every person interested in the distribution is entitled to appear on appeal. See Clutter v. Merrick, 162 Neb. 825, 77 N.W.2d 572 (1956). Heirs of the decedent are interested persons. See id. Under § 30-1601(2), Seth, individually, as an heir to Michael, was directly “affected” by the county court’s “final order” ruling that Nicole is also an heir under the decedent’s will, and therefore, Seth was enabled by statute to appeal, even if he had not appeared below. Section 30-1601(2) also enables “any party” to take an appeal. Milius, as personal representative of the estate, was a party in the county court. Nicole’s contention that Milius, as personal representative, lacks standing on appeal is without merit.

How To Construe a Will Under Nebraska Law

The primary issue reviewed by the Nebraska Supreme Court was whether the decedent had the intent to disinherit his daughter Nicole. The Nebraska Supreme Court reviewed the well-established rules of will construction:

The cardinal rule concerning a decedent’s will is the requirement that the intention of the testator shall be given effect, unless the maker of the will attempts to accomplish a purpose or to make a disposition contrary to some rule of law or public policy. In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536 (2017). To arrive at a testator’s intention expressed in a will, a court must examine the decedent’s will in its entirety, consider and liberally interpret every provision in a will, employ the generally accepted literal and grammatical meaning of words used in the will, and assume that the maker of the will understood words stated in the will. Id. [9,10]

When language in a will is clear and unambiguous, construction of a will is unnecessary and impermissible. Id. Ambiguity exists in an instrument, including a will, when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings. Id. Parol evidence is inadmissible to determine the intent of a testator as expressed in his or her will, unless there is a latent ambiguity therein which makes his or her intention obscure or uncertain. In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006).

A latent ambiguity exists when the testator’s words are susceptible of more than one meaning, and the uncertainty arises not upon the words of the will as looked at in themselves, but upon those words when applied to the object or subject which they describe. Id. In contrast, a patent ambiguity is one which exists on the face of an instrument. Id. A patent ambiguity must be removed by interpretation according to legal principles, and the intention of the testator must be found in the will. Id.

Here, the dispute regarding construction focused on the definition of “children” and “issue” to include Seth “and all children of mine born or adopted after the execution hereof,” and the residue clause leaving the residue of the estate to “my issue, per stirpes.”

“Include” Does Not Mean “Exclude”

The Nebraska Supreme Court reviewed the legal and dictionary definitions of include to help them construe the will, stating:

Particularly in legal contexts, the “participle including typically indicates a partial list,” and this meaning holds true whether or not the drafter(s) added emphatic language such as “including but not limited to.” Obviously, interpretative aids cannot override the parties’ clear intent when a contract is considered as a whole. But the word “include” preceding a list does not indicate an exclusive list absent other language showing a contrary intent.

What Does “Issue” Mean Under the Nebraska Probate Code?

The Nebraska Supreme Court also looked to the Nebraska Probate Code’s definition of issue:

Under the default definition provided of “issue of a person” in the Nebraska Probate Code, Nicole is a linear descendant and thus a child or issue of Michael. Neb. Rev. Stat. § 30-2209(23) (Reissue 2016) provides that “[i]ssue of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in the Nebraska Probate Code.” Consistent with the statutory provision, Nicole is not excluded from Michael’s use of “issue” simply because he wished to note that Seth and other children born or adopted later should be included. To include is not to exclude in this context. And, article I’s reference to “issue” is consistent with our conclusion under article I that both Seth and Nicole take under the will.

Intent To Disinherit an Heir Must Be Express Or Necessarily Implied From the Will

Using the established rules of will construction, the terms of the will, and the Nebraska Probate Code, the Nebraska Supreme Court determined that the testator did not intend to disinherit his daughter under the terms of the will:

“‘[A] testator will not be held to have disinherited an heir except where that conclusion is impelled by the express provisions or by necessary implication from provisions specifically set forth.’ . . .” Jacobsen v. Farnham, 155 Neb. 776, 784, 53 N.W.2d 917, 922 (1952).  No express statement disinherits Nicole or otherwise provides that she not receive from the estate, and we will not speculate as to Michael’s intentions not contained in his will.

Will construction cases in Nebraska can turn on one or two words that determine the status of an heir or devise.  Careful drafting and knowledge of a decedent’s family structure and testamentary wishes are an essential part of avoiding will construction litigation.

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