THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RIEDMANN, Judge.
Ellen Stride Bresnahan appeals the decision of the county court for Douglas County that admitted Eva Stride's October 25, 2005, will (2005 Will) into probate. Because we find that the trial court did not err, we affirm the judgment.
Eva died on July 11, 2011, while domiciled in Douglas County, Nebraska. Eva was survived by two daughters, Ellen Stride Bresnahan (Ellen) and Barbara J. Stride, as well as a grandson and a granddaughter.
Eva and her husband validly executed wills on June 27, 1979 (1979 Will). In the summer of 2005, Eva moved from her home in Omaha, Nebraska, to Texas, where she resided with Barbara. While in Texas, an attorney, Joseph Oswald, prepared wills for both Barbara and Eva. Eva's 2005 Will was drafted on October 25, 2005.
In 2006, Barbara and Eva moved back to Omaha. Eva lived with Barbara for a few months and then with Ellen until May 2008, at which time Eva moved to "Bickford Cottage."
After Eva's death, Ellen filed a petition offering for probate the 1979 Will and nominating herself as personal representative of Eva's estate. Barbara filed a responsive pleading and cross-petition, asserting that the 2005 Will revoked all prior wills and codicils. Barbara alleged that Ellen knew of the 2005 Will and willfully failed to produce it. Ellen filed a response to Barbara's cross-petition, asserting that the 2005 Will was the product of undue influence and that Eva lacked testamentary capacity when she executed the 2005 Will.
The first hearing on this matter was held in the county court for Douglas County on November 7, 2011. At that hearing, Ellen offered the original 1979 Will and the trial court received it into evidence. At the same hearing, Barbara offered a copy of the 2005 Will. Barbara did not have the original 2005 Will to offer into evidence; she alleged that Ellen had the original and refused to provide it. Ellen denied that she ever had the original 2005 Will and claimed that she had made a copy of Eva's copy of the will while Eva was living with her. As to Barbara's offer of the 2005 Will which was marked as exhibit 4, the record reflects the following exchange:
Barbara's counsel then proceeded to offer exhibit 5 before the trial court ruled upon the offer of the 2005 Will.
Later that day, when Barbara's counsel referenced the 2005 Will, the judge stopped Barbara's counsel and the following conversation occurred:
In the midst of the November hearing, Ellen was granted a continuance. Trial resumed on December 28, 2011, at which time the following exchange occurred when Barbara's counsel moved to have the 2005 Will admitted to probate:
In addition to discussing the two competing wills, both Barbara and Ellen testified at the hearing. Barbara testified that Eva moved to Texas and began living with her during the summer of 2005. She stated that Eva put her house on the market herself, handling the listing and the closing. She further related that Eva managed her own bank account and wrote checks to Barbara to compensate her for living expenses.
Barbara testified that both she and Eva had wills and powers of attorney drawn up by Oswald. She denied that she told Eva what to put in her will or to name Barbara as power of attorney. Barbara described Eva as energetic and carefree, although sometimes sad about recent family deaths. Barbara claimed that she was not aware of any illnesses that might have affected Eva at the time she executed the 2005 Will.
Barbara offered into evidence the deposition of Oswald, the attorney who drafted the 2005 Will. In this deposition, Oswald described his general practice and procedures for drafting wills. He stated that he destroys client files every 5 years and that Eva's file was destroyed by the time of litigation. He had a vague memory of Barbara and Eva and could not recall anything that was concerning about the way either of them acted. He testified that he always discusses with clients the natural objects of their bounty and the size of their estate. He said that Eva talked about both of her daughters and that nothing Eva did struck him as unusual or made him believe she was confused.
Barbara stated that Eva never told her she was going to destroy the 2005 Will or that she wanted it revoked. She said that Eva kept the 2005 Will in a metal box that she carried around. She said the box was last at Ellen's house. Barbara testified that in January 2009, Eva asked two attorneys to get her documents, stocks, and bonds from Ellen's house, but that Ellen refused to return the documents. Ellen admitted that she refused to turn Eva's documents over to Eva after being contacted by the attorneys, explaining that she "didn't feel [Eva] should be signing new papers with [an] Alzheimer's diagnosis [while residing] in a secure facility.
Ellen testified that she believed the 2005 Will was invalid because Eva was not of clear mind at the time she made the will. Ellen formed this belief based on letters Eva wrote to her, stating that she did not want the 2005 Will and that she was trying to get back to Omaha. Ellen testified that Eva did know who her children and grandchildren were and that she had a reasonable idea of what she owned.
Ellen said that after Eva returned to Omaha, Eva continued writing checks and was frustrated by her inability to receive bank statements after she moved to "Bickford Cottage" in 2008. Eva's primary care physician, Dr. Karen Stacey, determined Eva was no longer capable of handling her finances in January 2009. Although Ellen would have liked a second opinion, she admitted that there had not been a medical determination that Eva was incapable of handling her finances before January 2009. In Ellen's opinion, Eva became incapable of handling her finances in 2001.
Ellen offered exhibits 9 through 12, which are medical records from Dr. Stacey. Except for the period of time Eva resided in Texas, Dr. Stacey was Eva's primary care physician from 2000 until her death. On April 27, 2004, Dr. Stacey wrote that Eva did not think her memory was as good as it had been. The next office record of July 28, 2005, makes no mention of memory problems and discusses Eva's upcoming move to Texas. On August 15, 2006, Barbara went with Eva to the doctor and was very concerned about Eva's memory loss, primarily short-term memory loss. In this record, Dr. Stacey listed "memory loss" as an impression. Eva saw Dr. Stacey again on November 13. At that time, Dr. Stacey indicated that Eva seemed to be confused and listed "Alzheimer's-type dementia" as an impression.
The trial court determined that Eva had the capacity to form donative intent until January 2009 and that the 2005 Will was validly executed. The court found no evidence of undue influence and no evidence that Eva revoked the 2005 Will. Based on these findings, the trial court ruled that the 2005 Will was Eva's last will and admitted it to probate. In accordance with the will, Barbara was appointed personal representative.
Ellen argues, restated, that the trial court erred in (1) finding sufficient evidence in the record to admit a copy of the 2005 Will into probate, (2) appointing Barbara as personal representative, (3) finding Barbara made a prima facie case that Eva had testamentary capacity when she executed the 2005 Will, (4) finding the 2005 Will was properly executed, (5) failing to apply the doctrine of animo revocandi to the 2005 Will, (6) failing to admit the 1979 Will in place of the 2005 Will, and (7) admitting Oswald's deposition into evidence despite a relevancy objection.
An appellate court reviews probate cases for errors appearing on the record. When reviewing a judgment for errors appearing on the record, a court decides whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001). The probate court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. Id.
Ellen argues that the trial court erred in admitting the 2005 Will into probate because the order was not based upon evidence offered and received at the hearing. Particularly, Ellen argues that the court never received the 2005 Will. The record shows that the judge did not rule upon the 2005 Will when it was offered into evidence. The record also reveals, however, that Ellen did not object to the offer of the 2005 Will, but rather stipulated that exhibit 4 was a copy of the 2005 Will. Because Ellen did not object to the offer, she waived whatever objection she may have had. See In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366 (1948).
In In re Estate of Kaiser, the court stated:
150 Neb. at 308, 34 N.W.2d at 374-75.
The court has cautioned both parties and their counsel that if they fail to object or insist upon a ruling to their objections, they do so at their own peril. See R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002).
In the present action, Ellen did not object when Barbara's counsel offered the 2005 Will during the November 2011 hearing and, in fact, stipulated that it was a copy of the disputed will. The only objection Ellen made to the 2005 Will occurred during the December 2011 hearing when Barbara's counsel moved to have the will admitted to probate. The court implicitly overruled that objection when it stated that "the will dated October 25, 2005, will be admitted as the last final will of the deceased, Eva R. Stride." Ellen made no earlier objection to the court's receiving exhibit 4 as a copy of the 2005 Will; therefore, she is considered to have waived whatever objection she may have had.
Aside from Ellen's failure to object, she stipulated that exhibit 4 was a copy of the 2005 Will. As a result, she cannot now complain that the court received the exhibit. A stipulation entered into by parties to a proceeding or by their attorneys within the scope of authority for representation of the parties, establishes the fact stipulated and binds the parties in the proceeding. Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325 (1993).
When Barbara's counsel offered exhibit 4, he stated: "I think we can offer by stipulation a copy of the 2005 [W]ill that was drafted in Texas, October 25, 2005." Ellen's counsel responded: "To the extent that it's being stipulated as a copy of the will, we will stipulate it is a copy of the will." This stipulation binds Ellen to the acknowledgment that exhibit 4 is a copy of the 2005 Will. Therefore, since Ellen acknowledged that exhibit 4 was a copy of the 2005 Will and did not object to its offer, the will was properly in the record for the trial court's consideration.
As a result, the trial court did not err in finding sufficient evidence in the record to admit a copy of the 2005 Will into probate.
Ellen argues that the trial court could not have made findings of fact to appoint Barbara as personal representative because the contents of the 2005 Will were not in evidence; therefore, the trial court could not have ascertained what the 2005 Will declared. Because the trial court had sufficient evidence to admit the 2005 Will to probate and the 2005 Will nominated Barbara as personal representative, the trial court had a sufficient basis upon which to make its appointment.
In a contested case, the proponents of a will have the burden of establishing prima facie proof of due execution, death, testamentary capacity, and venue. Neb. Rev. Stat. § 30-2431 (Reissue 2008); In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001). Death and venue are not at issue in this appeal. Ellen argues that Barbara did not meet either her prima facie burden of proof for admitting the 2005 Will to probate or her burden of proof that the 2005 Will was duly executed. We disagree.
Ellen argues that the court's failure to receive the 2005 Will into evidence meant Barbara presented insufficient evidence to make a prima facie case that Eva duly executed the 2005 Will at a time when she had testamentary capacity. Ellen argues that the trial court could not determine whether the 2005 Will constituted a testamentary document, whether it was properly executed, whether it was self-proving, whether the statements of attesting witnesses were adequate, whether it contained a notary jurat, whether it was notarized, or whether any notary jurat conformed to the law of any state. We have already determined that the 2005 Will was properly considered as evidence in this case. Eva's signature, the self-proving clause, and the witnesses' signatures on the 2005 Will are sufficient to make out a prima facie case of due execution. The argument that Barbara presented insufficient evidence to make a prima facie case that Eva duly executed the 2005 Will is without merit. Proving that the 2005 Will was duly executed, however, requires more than proving a prima facie case.
We note that although the 2005 Will was executed in Texas, both parties rely on Nebraska law to make their arguments as to whether or not the 2005 Will was duly executed. "`In the absence of pleading and proof to the contrary, the statutes of a sister state are presumed to be the same as those of this state.'" Scott v. Scott, 153 Neb. 906, 908, 46 N.W.2d 627, 630 (1951). Because both parties plead Nebraska law only, we evaluate the execution of the 2005 Will under Nebraska law.
A will is duly executed if it complies with the formalities of Neb. Rev. Stat. § 30-2327 (Reissue 2008). In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982). The requirements of § 30-2327 are satisfied if a will is (1) in writing, (2) signed by the testator, and (3) signed by at least two individuals, each of whom witnessed either the signing or the testator's acknowledgment of the signing of the will. If a will is not self-proved and also contested, at least one witness to the will must testify if the witness is located within the state and competent. Neb. Rev. Stat. § 30-2430 (Reissue 2008).
A will is self-proving if it complies with the requirements of Neb. Rev. Stat. § 30-2329 (Reissue 2008). Ellen is correct to point out that the language used in the self-proving clause of the 2005 Will only substantially complies with Nebraska's self-proving statute. The 2005 Will does, however, comply with § 30-2327. As required by § 30-2327, Eva's 2005 Will is in writing and contains Eva's signature, as well as the signatures of two attesting witnesses. None of the witnesses are located within the State of Nebraska and so they are not compelled to testify under § 30-2430. Regardless, Barbara presented the deposition of Oswald, who drafted Eva's 2005 Will and witnessed her signature. Even if his testimony could have been made stronger by including the 2005 Will as an exhibit to the deposition, Oswald's testimony did provide evidence that Eva properly executed the 2005 Will. Furthermore, the self-proving clause that Eva signed recited many facts necessary to prove a valid execution and, therefore, bolsters the evidence of proper execution already submitted to the trial court. See Thomas v. Vaughan, 181 Neb. 673, 150 N.W.2d 241 (1967). The trial court had evidence of a self-proving clause that substantially complied with Nebraska's requirements as well as the deposition of Oswald and the testimony of both Ellen and Barbara before it when it determined that Eva validly executed the 2005 Will.
A person who understands the nature of his acts, the extent of his property, the proposed disposition of it, and the natural objects of his bounty is competent to make a will. In re Estate of Kleeb, 211 Neb. 763, 320 N.W.2d 459 (1982). The trial court had sufficient evidence that Eva was competent to make a will in 2005. In addition to Eva's signature on the self-proving clause of the 2005 Will, the attorney who drafted the will testified by deposition that Eva was of sound mind. Eva's medical records provide evidence that she was competent. Finally, Ellen herself testified that Eva knew who her heirs were and that she had a general understanding of her property in 2005. Based on this evidence, we cannot find the trial court erred in finding that Eva was competent at the time she made the 2005 Will.
Ellen argues that the trial court erred in failing to apply the doctrine of animo revocandi to the 2005 Will because Barbara could not produce the original will. We find that the trial court did not err in rejecting the doctrine.
The doctrine of animo revocandi is derived from a Latin phrase meaning "with the intention to revoke a will." Whether a trial court should have applied the doctrine of animo revocandi is a question of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001).
A lost will may be proved valid by clear and convincing secondary evidence. Id. Before a lost will may be received into probate, "it is incumbent upon the proponent of a lost will to explain why the original will is not being offered." Id. at 501, 633 N.W.2d at 899. A proponent of a lost will must also overcome the presumption that the testator destroyed the will animo revocandi. Id. The logic behind the doctrine of animo revocandi is that if the testator was the last person with the will and it subsequently cannot be located, the reason it cannot be located is presumed to be because the testator destroyed the will. Id. However, the In re Estate of Mecello court also explained:
262 Neb. at 504-05, 633 N.W.2d at 901.
In this case, the evidence is conflicting as to whether Eva or Ellen last had possession of the 2005 Will. Barbara testified that Eva kept the 2005 Will in a metal box she carried around after its execution. Barbara also testified, however, that Eva subsequently moved in with Ellen and that Ellen retained possession of the metal box. Ellen testified that she never had the original 2005 Will but that she obtained her copies of the will by copying a copy of it. Ellen admitted that she had possession of the original 1979 Will, copies of the 2005 Will, Eva's life insurance policy information, Eva's father's death certificate, and other important documentation. She further admitted that she refused to provide these documents to Eva's counsel when requested.
From the record, it is unclear whether the original 2005 Will was in Eva's possession at the time of her death. There is some evidence that the 2005 Will may have been in Ellen's possession at Eva's death because Barbara testified the metal box was in Ellen's possession and Eva undertook actions to retrieve documents from Ellen. In these circumstances, where there is conflicting evidence, Barbara's explanation for her failure to produce the original 2005 Will is adequate. Further, we cannot say the trial court erred in failing to apply the doctrine of animo revocandi because it is not clear that Eva possessed the 2005 Will at the time of her death.
Because the trial court did not err in admitting the 2005 Will into probate as Eva's last will, it did not err in failing to admit Eva's 1979 Will to probate.
In a proceeding where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004). The Nebraska Evidence Rules define relevant evidence and require that relevant evidence be admitted. Neb. Rev. Stat. §§ 27-401 and 27-402 (Reissue 2008). The exercise of judicial discretion is implicit in decisions to admit evidence based on relevancy or admissibility and those decisions will not be overturned by an appellate court absent an abuse of discretion. Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009).
Ellen argues that Oswald's deposition was not relevant and should not have been admitted. She argues that he did not refer to any wills and that he did not testify that the 2005 Will offered as exhibit 4 was a true and complete copy of the will he prepared. Additionally, Ellen argues that Oswald did not state that he knew it was Eva who signed the will and that the lack of foundation for his testimony makes it irrelevant.
Barbara argues that Oswald's deposition is relevant evidence because it makes facts in evidence more or less probable than they would be without the evidence under § 27-401. She argues that Oswald's testimony regarding Eva's appearance, demeanor, and ability to understand the drafting and execution process are relevant to Eva's state of mind at the time of the drafting of the 2005 Will and that this evidence goes directly to her testamentary capacity. We agree.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." § 27-401. In this action, Eva's testamentary capacity and undue influence were both at issue. Oswald's deposition testimony was relevant to both of these issues. As such, the trial court did not abuse its discretion by admitting Oswald's deposition.
Because we find that the trial court did not err in admitting the 2005 Will into probate, in appointing Barbara as personal representative, in rejecting the doctrine of animo revocandi, or in admitting Oswald's deposition into evidence, we uphold the trial court's decision to admit Eva's 2005 Will into probate as her last will and testament. The judgment of the trial court is affirmed.
AFFIRMED.
