Ensuring Your Will Reflects Your Testamentary Intent

In an opinion issued on April 3, 2026, the Nebraska Supreme Court decided a case that doubled as, in the Court’s words, “a cautionary tale about the importance of ensuring that your will reflects your testamentary intent.”

In re Estate of Knapp involved a recently-deceased husband (Paul) who was married to his second wife (Barbara). Paul did not update his will, which left his estate to his children. Paul and Barbara had a premarital agreement that kept their separate property separate. Paul was the sole owner of the residence.

Most if not all of the family appeared to be in agreement that Paul and Barbara had an intent and understanding that Barbara could live in the residence as long as she wanted after Paul’s death, and that Barbara could have 40% of the proceeds if the house was sold. Paul never put this in his will or otherwise in writing and never added Barbara as co-owner of the house. When Barbara filed a claim against the estate to this effect, the Personal Representative denied it.

Barbara presented two main arguments in support of her claim that she was entitled to possession of the house and 40% of its sale proceeds, both of which failed.

1) Premarital agreement clause

The premarital agreement provided generally that the survivor would have no claim against the estate of the other, “except for . . . the provisions regarding the personal residence, maintenance fund, and vehicle as set forth in Article 9.4 above.” However there was no Article 9.4 in the agreement.

Barbara argued that this was an ambiguity permitting the consideration of certain outside evidence to show what Article 9.4 was, but the court disagreed, saying that the term was not ambiguous because it was not susceptible to more than one meaning. An omitted term is not an ambiguity if it doesn’t create this susceptibility.

Instead the court said Barbara was seeking reformation of the agreement, and reformation based on mistake requires proving the existence of the mistake by clear and convincing evidence. Barbara could not do that, despite multiple family members testifying about the intention for the 60/40 split. Despite general agreement that this was their understanding in the time leading up to Paul’s death, Barbara could not get as far as to prove it was their intent to include that understanding in the agreement at the time of the agreement’s execution.

Other relevant evidence included that Paul had made title changes to other assets after his marriage to Barbara, but not to the house.

2) Oral contract

Barbara tried arguing an exception to the statute of frauds—longstanding doctrine requiring that certain agreements be in writing in order to be binding. Barbara claimed they had an oral contract regarding her possession of the house and entitlement to 40% of the proceeds. Again the court seemed to agree that Paul in fact intended the 60/40 split, but Barbara could not show the existence of an actual enforceable contract to this effect, oral or otherwise.

Main takeaways:

• A missing/orphan cross-reference is not automatically ambiguous. Reforming an agreement based on this requires clear and convincing evidence that a mistake was made.
• Repeated statements of testamentary intent and universal familial understanding of the same do not create enforceable rights without putting them properly in writing.

A cautionary tale indeed. Do not assume that your family’s understanding of and consent to your wishes is enough to ensure they will be put into effect. That’s what a will is for!