Joan Jane Barger died testate (with a will) in January 2012. In August 2019, the litigation finally ended. She had five children and one child was not a beneficiary under her will. Joan’s will also had a no contest provision stating essentially that if any beneficiary contested her will, then they would take nothing.
The omitted child, William, did contest the will and asserted that one of his brothers had asserted undue influence on their mother in drafting her final will. Some of Joan’s children who did take under the will helped pay for the will contest filed by William, but they were not plaintiffs in the case.
It was held that the children who helped pay for the will contest had violated the no contest clause in the will. They had aided William and hence indirectly contested the will. But a no contest clause is unenforceable in Nebraska if there is probable cause to file the challenge. In this case, there was ample evidence to file the will contest although it ultimately did not prevail. Among other things the final will was drafted and executed in one day and the “special” beneficiary was present the entire time. Joan had also drafted six wills in short order and the “special” beneficiary’s portion increased each time. Finally, Joan had an extensive history of medical issues including dementia.
Part of the county court’s reasoning for admitted the contested to will for probate was that Joan gave specific reasons for disinheriting William. The will also stated that some relatives received more real estate than others because Joan was of the belief that the farm would not be sold by that beneficiary.
It is interesting to note that after Joan passed away there was an actual reading of the will at an attorney’s office. 303 Neb. at 827. Just like in the movies!
In re: Estate of Barger, 303 Neb. 817 (August 2, 2019).
