In a recent estate case, the Nebraska Supreme Court applied a hearsay exception to allow the decedent's prior will as evidence of her testamentary capacity to execute the will contested by one of her sons.

In the Estate of Walker, the decedent, Rita Walker, died at the age of 84 and left her estate to Mark Walker, her son, naming him sole beneficiary and personal representative. Rita's will excluded her three other sons. Michael Walker, one of these sons, sued to contest the will on the grounds that Rita lacked testamentary capacity to execute the will, which was executed on September 15, 2021, eleven days before her death. Michael alleged Rita was unduly influenced to execute the will. Undue influence can invalidate a will or contract when one party is unable to exercise his or her independent volition freely.

The county court determined the will was the product of undue influence and ordered that Rita's property proceed intestate, appointing Michael as personal representative. However, on appeal, the Nebraska Supreme Court held that the lower court erred in excluding evidence of Rita's prior will, signed in February of 2016. While this document was hearsay because it was not a statement of Mark himself, it fell within a hearsay exception and was relevant. The prior will served to demonstrate Rita's "constant and abiding scheme" for her property and was relevant to Rita's testamentary capacity at the time of the subsequent will's execution.

Therefore, the Nebraska Supreme Court reversed the lower court's rejection of Rita's will and remanded the case to the lower court to re-examine the issues of testamentary capacity and undue influence in consideration of Rita's prior will.

This ruling serves as a reminder to prioritize comprehensive estate planning methods to mitigate the risk of courts rejecting valid estate planning documents. Recognizing and addressing the risk that your will may be vulnerable to allegations of undue influence is crucial to ensuring your final wishes are honored.