202200334 - Laserfiche WebLink

Browse

202200334 resides in the home. See Exhibit 8. Howard also revoked her power of attorney and removed Defendant as a beneficiary to her estate. In her revised will, executed on April 10, 2018, Howard expressly stated that "I intentionally make no provision in this Will for Clayton L. Green. In my opinion, he is a thief- he took advantage of me for monetary gain, and should be prosecuted for abusing a vulnerable adult for financial gain." Exhibit 1. Defendant contested the will and the matter was set for trial with the probate court on November 5 and 6, 2020, but then continued at Defendant's request. The matter was rescheduled for trial on February 4 and 5, 2021, and Defendant again requested a continuance, but then withdrew that request, but did not appear at trial. He also withdrew his objection to the April 10, 2018 will, and filed for an elective share instead. The County Court declared the April 10, 2018 will to be valid and unrevoked and admitted to formal probate by way of order entered February 4, 2021. See Exhibit 13. The County Court later determined Defendant's conduct to be in bad faith and assessed attorney fees and court costs in the amount of $11,594.15 against him, and rejected as untimely his request for an elective share. See Exhibit 14. II. ANALYSIS Plaintiff claims that Defendant violated Nebraska's Uniform Power of Attorney Act, breached his fiduciary duties, and/or engaged in undue influence and constructive fraud. The Nebraska Supreme Court has held that "[o]ne does not exert undue influence in a crowd. It is usually surrounded by all possible secrecy; it is usually difficult to prove by direct evidence; and it rests largely on inferences drawn from facts and circumstances surrounding the testator's life, character, and mental condition." In re Est. of Hedke, 278 Neb. 727, 743-44, 775 N.W.2d 13, 28 (2009). Undue influence may be presumed if there exists a confidential or fiduciary relationship, coupled with "other suspicious circumstances." Id. In adopting the Nebraska Uniform Power of Attorney Act ("POAA"), Neb. Rev. Stat. §30-4001 et. seq., the Nebraska Legislature recognized "the manifold opportunities and temptations for self-dealing that are opened up for persons holding general powers of attorney." Cisneros v. Graham, 294 Neb. 83, 85-86, 881 N.W.2d 878, 881 (2016). The purpose of the act is to "provide[] a simple way for people to deal with their property," but 7 Certified Page 7 of 17