Cassel, J.
This appeal arises from an unsuccessful will contest, premised upon undue influence and tried to a jury. The Nebraska Court of Appeals affirmed the district court's judgment.
The facts are set forth in greater detail in the Court of Appeals' published decision.
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.
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 permanent conservator for Mary Ann in January 2001. The conservatorship 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
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 from 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 intentionally 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.
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 regarding her feelings about the conservatorship.
During the trial, the parties also adduced evidence regarding 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 testamentary 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 questions 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 be considered by you as evidence on the issue of undue influence." 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 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.
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 relationship 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 when 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 presumption, but, rather, is a "bursting bubble" presumption that disappears when evidence to rebut the presumption is introduced. 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."
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 contained 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 evidence of Mary Ann's state of mind, with the limiting instruction 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 video did not violate the contestants' rights to cross-examine witnesses against them. The court stated:
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,
We granted the contestants' petition for further review.
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 during deliberation.
Whether a jury instruction is correct is a question of law, which an appellate court independently decides.
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.
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.
The contestants challenge the district court's refusal of their proposed instructions regarding a presumption of undue influence. 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 that 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:
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 pertinent part:
This instruction was consistent with Nebraska's pattern jury instruction explaining the statement of a claim of undue influence.
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 ultimate burden of persuasion.
The contestants rely on a concept referred to as a "presumption of undue influence." According to statute, 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."
But nearly 40 years ago, we held that the "presumption of undue influence" was not a true presumption within the meaning of § 27-301.
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 determined that in a will contest tried to the bench, the trial court was clearly wrong in rejecting the contestant's claim of undue influence.
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 instruction defining undue influence. Under this instruction, one of the comments states, "Further instruction may be necessary in a case that involves a confidential or fiduciary relationship." The comment cites to three cases,
An earlier case discussing instructing the jury on a presumption of undue influence is likewise of little assistance. In that case,
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 proponent provided sufficient evidence to meet his or her burden of producing evidence, the statute
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 persuaded 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.
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
We reaffirm our prior holding from McGowan v. McGowan,
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 circumstances, the contestant has introduced evidence sufficient to justify an inference of undue influence.
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 influence was exercised.
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 failure 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.
The jury instructions as a whole correctly charged the jury regarding undue influence. Jury instructions do not constitute 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.
Our opinion should not be interpreted to mean that it would never be appropriate to include an instruction regarding a permissible 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.
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 "shadow of doubt." The court merely referred the jury to instruction No. 7, which defined the burden of proof primarily using the pattern instruction.
The Court of Appeals determined that this instruction was a correct statement of the law. On further review, the contestants do not quarrel with this assessment. And the general rule is that whenever applicable, the Nebraska Jury Instructions are to be used.
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."
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.
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 attorney regarding influence and whether Calvin influenced Mary Ann. The court further instructed the jury that those questions and answers could not be considered
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 substantially 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.
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.
We agree with the Court of Appeals that the district court did not abuse its discretion under § 27-403.
In an effort to establish unfair prejudice, the contestants argue that the district court could not "`unring the bell'" regarding the questions and Mary Ann's answers on undue influence.
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
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 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.
Finally, the contestants argue that they had no opportunity 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.
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. . . ."
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 execution—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 evidence recognize such impossibilities and provide numerous exceptions to the hearsay rule.
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.
In Vandever, we interpreted the meaning of the word "testimony" used in the statute
But the Court of Appeals first acknowledged that there was no indication in the record that the jury had the necessary 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 contestants 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.
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 further review, we conclude that the Court of Appeals did not err in affirming the district court's
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.
AFFIRMED.
