Nebraska Supreme Court Affirms Will Contestant’s Challenge of Lack of Capacity and Undue Influence

In an October 17, 2025 decision, the Nebraska Supreme Court affirmed a will contestant’s challenge of lack of capacity and undue influence in In re Estate of Walker.

The decedent in Walker (Rita) was a mother of four sons. One son (Mark) offered a will for probate that purported to leave the entire estate to Mark. Another son (Michael) challenged this will based on lack of capacity and undue influence. The court held that 1) Mark failed to carry his burden of showing Rita had capacity when she signed the offered will 11 days before her death, and 2) Michael provided enough evidence for a finding that Mark exerted undue influence over Rita.

The case has good discussions on the burdens of proof and evidence needed for each claim.

The proponent of a will has the burden to show the decedent had capacity when making her will; typically a self-proved will is prima facie proof of capacity, but the will Mark offered did not qualify, as Mark was one of the witnesses. Mark offered evidence of Rita’s general thinking and decision-making capacity, but nothing specific to her testamentary capacity, i.e. knowing the extent and nature of her property and its proposed disposition under the will. Evidence that Rita had signed a prior document also leaving her estate to Mark was not enough to show her specific testamentary capacity for the offered will.

Conversely, Michael provided enough evidence for the Supreme Court to uphold the county court’s finding of undue influence. This included testimony from an employee of the facility where Rita lived that, a year prior, Mark yelled at Rita and threatened he would remove her from the facility if she didn’t do what he wanted. Mark prepared the will himself and Rita was in a weak state, dying from cancer. Additionally, despite the three other brothers frequently visiting Rita, Mark did not have any of them witness the purported will. The evidence was sufficient to meet the four elements of undue influence: 1) the testator was susceptible to undue influence, 2) there was an opportunity to exert undue influence, 3) there was a disposition to exert undue influence, and 4) the result was clearly the effect of such influence.