Dad’s will provided that his wife would have a life estate in 200 acres of Buffalo County, Nebraska real estate. Smart move as that meant that the full value of the real estate was not in her estate for Medicaid purposes. In fact, the Unicameral closed this loophole in 2017 but there are still ways for mom to qualify for Medicaid without becoming impoverished.
Dad’s will also provided that his son had a remainder interest in the real estate subject to paying 40% of the appraised value to his sisters. There was an equitable lien on the real estate too if the brother didn’t pay his sisters. After Dad died and his will probated, a Deed of Distribution was filed.
Mom died in 2014. Son doesn’t pay his sisters. Sisters file a lawsuit. Appraisers set value of the land at $5,816 per acre. Brother then pays his sisters $232,645.
New lawyer comes onto the scene and says the provision about paying the sisters is void and unenforceable. I read the briefs. He argues about the law of future interests.
Long story short, brother loses. Basically, he didn’t enter into a settlement agreement so he couldn’t rescind it. He just paid his sisters based upon what his first lawyer told him to do. Neither the trial court or the appellate court needed to reach the issue of whether the provisions of the will were valid. That’s standard practice and legally sound.
Judges are attuned to the fact that it isn’t a good idea to try to be cute and beat your siblings out of what their parents wanted them to have by using some half-clever lawyer arguments about the law of future interests. That’s the rough justice view. If brother would have won, he’d get all the real estate and his sisters would have received nothing. Not Nebraska nice!
Source: Adelung v. Heiden, Nebraska Court of Appeals, November 17, 2020.
