## Facts

- Bessie I. Peterson executed a will in 1972; its validity was undisputed.
- In January 1985, while in a nursing home and shortly before her death, she executed a codicil.
- The codicil devised livestock and certain personal property to her son Eldon J. Peterson and named him personal representative.
- All parties were Bessie’s five sons; three sons contested the codicil, and Eldon and Donald R. Peterson supported it.
- Evidence showed Eldon was the only son who permanently lived on and managed the family ranch.
- The codicil execution was videotaped; Bessie stated reasons for leaving the cattle to Eldon, including his care for her and ranch management.
- Contestants alleged (1) undue influence by Eldon and (2) lack of testamentary capacity at the time of execution.
- On capacity, contestants relied on nursing-home employees’ observations suggesting impairment; proponents relied on testimony from the drafting attorney and nursing-home administrator indicating Bessie understood the act, her property, her heirs, and her intended disposition.

## Issues

1. Whether the district court erred by directing a verdict for the proponents on undue influence.
2. Whether the district court erred by refusing to direct a verdict for the contestants on testamentary capacity.

## Decision

- The judgment upholding the codicil was affirmed.
- The directed verdict for proponents on undue influence was proper because the contestants’ evidence did not permit a reasonable finding that the codicil was the clear result of influence that destroyed the testator’s free agency.
- The testamentary-capacity question was properly submitted to the jury because the evidence was conflicting; the jury’s finding of capacity was supported by sufficient evidence.
- The appellate court declined to reweigh credibility and evidence where the record supported the verdict.

## Legal Principles

- A directed verdict is proper only when reasonable minds can draw but one conclusion after giving the nonmoving party all favorable evidence and reasonable inferences.
- Undue influence requires proof, by a preponderance of the evidence, that (1) the testator was subject to undue influence, (2) there was an opportunity to exercise it, (3) there was a disposition to exercise it, and (4) the challenged instrument was clearly the effect of influence that destroyed the testator’s free agency.
- Testamentary capacity exists when, at the time of execution, the testator understands the nature of the act, the extent and character of property, the intended disposition, and the natural objects of the testator’s bounty.
- When evidence on testamentary capacity is disputed and reasonable factfinders could differ, the issue is for the jury.

## Conclusion

The court affirmed admission of the codicil because the contestants failed, as a matter of law, to produce evidence supporting all elements of undue influence, and the conflicting evidence on testamentary capacity created a jury question that was resolved for the proponents on sufficient evidence.


In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (Neb. 1989)