## Facts

- Joseph L. McGowan, an 80-year-old bachelor, died in 1973, leaving an estate consisting almost entirely of personal property (stocks, bonds, and cash) valued at approximately $770,000.
- About $40,000 of the estate consisted of stock in a closely held family corporation, Uncle Sam Breakfast Food Company.
- McGowan executed a will making minor bequests and then leaving all of the family-corporation stock in equal shares to five nieces and nephews (or the survivors of them).
- The will left the residue to First National Bank of Omaha as trustee to pay income and/or benefits to Thomas F. McGowan (the testator’s second cousin and godson) for life, with the remainder to Thomas’s two sons (or their issue) when the younger son reached age 25 or at Thomas’s death, whichever occurred later.
- The nieces and nephews were McGowan’s heirs at law and had maintained cordial relations with him over the years; trial testimony included that one niece was a favorite.
- The heirs at law contested the will’s admission to probate, alleging (1) lack of testamentary capacity and (2) undue influence by Thomas, who was a principal beneficiary under the residuary trust and was also named executor.
- The county court admitted the will to probate over the objections.
- On appeal to the district court, the case was tried to a jury, which found for the will’s proponent and against the contestants on both testamentary capacity and undue influence; the district court entered judgment admitting the will to probate.
- The contestants appealed to the Nebraska Supreme Court, arguing chiefly that the jury instructions improperly left the burden of proving undue influence on the contestants even after evidence that (in their view) established a prima facie case and a presumption of undue influence.

## Issues

1. In a Nebraska will contest, does evidence that would support a presumption or prima facie case of undue influence shift the burden of proof to the will’s proponent to disprove undue influence?
2. Did the trial court err by instructing the jury that the contestants bore the burden of proving undue influence, without instructing that the burden shifted to the proponent upon a prima facie showing?
3. Was there sufficient evidence to submit testamentary capacity and undue influence to the jury and to sustain the jury’s verdict for the proponent?

## Decision

- The Nebraska Supreme Court affirmed the district court’s judgment admitting the will to probate.
- The court held that the burden of proof to establish undue influence rests on the contestants and remains on them throughout the trial; evidence giving rise to an inference or “presumption” of undue influence does not shift the ultimate burden of persuasion to the proponent.
- The court concluded that the jury instructions, considered as a whole, correctly stated Nebraska law by placing the burden of proving undue influence on the contestants.
- The court upheld the submission of testamentary capacity and undue influence to the jury and sustained the jury’s findings for the proponent.

## Legal Principles

- In Nebraska, undue influence in a will contest is an affirmative ground for invalidating the will, and the contestants carry the burden of proof on that claim throughout the case.
- Evidence of suspicious circumstances (such as a close relationship with a beneficiary, opportunity to influence, or participation connected to the will) may permit an inference of undue influence, but it does not transfer the ultimate burden of proof to the will’s proponent.
- Jury instructions in a will contest are reviewed as a whole; an instruction is not reversible error if, taken together with the rest of the charge, it correctly states the governing law and fairly submits the issues to the jury.
- Where the evidence supports competing views on capacity and influence, those issues are for the jury to decide, and an appellate court will not reweigh the evidence merely because a different result could have been reached.

## Conclusion

The Nebraska Supreme Court affirmed probate of Joseph L. McGowan’s will, rejecting the contestants’ argument that a prima facie showing of undue influence shifts the burden of proof to the proponent; under Nebraska law, suspicious circumstances may support an inference for the factfinder, but the contestants retain the burden of persuasion on undue influence, and the jury was properly instructed and supported by the evidence in finding for the proponent.


Master of Estate of McGowan, 250 N.W.2d 234 (1977)