In re Eileen Ryan Revocable Trust

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
In re Eileen Ryan Revocable Trust.
Constance M. Ryan, appellant, v.
The Ryan Foundation et al., appellees.
___ N.W.3d ___
Filed May 3, 2024. 	No. S-23-354.
1. Decedents’ Estates: Appeal and Error. Appellate review under the
Nebraska Probate Code is an issue-specific approach.
2. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
3. Declaratory Judgments. Whether an action for declaratory judgment is
to be treated as one at law or one in equity is to be determined by the
nature of the dispute. The test is whether, in the absence of the prayer
for declaratory judgment, the issues presented should properly be dis-
posed of in an equitable action, as opposed to a legal action.
4. Wills: Trusts: Judgments: Appeal and Error. The interpretation of the
words in a will or a trust presents a question of law. In instances when
an appellate court is required to review cases for error appearing on the
record, questions of law are nonetheless reviewed de novo on the record.
5. Equity: Reformation: Appeal and Error. A proceeding to reform
a written instrument is an equity action. Because reformation is an
equity issue, an appellate court reviews a reformation issue in a trust
administration proceeding de novo on the record. In a review de novo
on the record, an appellate court reappraises the evidence as presented
by the record and reaches its own independent conclusions with
respect to the matters at issue.
6. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:43 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
7. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
8. Declaratory Judgments: Parties. When declaratory relief is sought,
it is a statutory requirement that all persons shall be made parties who
have or claim any interest which would be affected by the declaration.
9. Parties: Words and Phrases. A party is “indispensable” when the party
has an interest in the controversy to an extent that such party’s absence
from the proceedings prevents the court from making a final determina-
tion concerning the controversy without affecting such party’s interest.
10. Trusts: Parol Evidence: Reformation. Parol evidence can be used in
actions seeking reformation of trust instruments, and a court may rely on
such extrinsic evidence.
Appeal from the County Court for Douglas County: Thomas
K. Harmon, Judge. Affirmed.
Daniel J. Welch and Damien J. Wright, of Welch Law Firm,
P.C., for appellant.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellee Steven Ryan.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Constance M. Ryan filed a petition in the county court for
Douglas County seeking to interpret and declare rights or
reform the trust instrument of her late mother, Eileen A. Ryan.
At the center of this appeal are competing interpretations of
a provision that bequeathed $5 million in what is referred
to as “Countable Assets” to each of Eileen’s five children.
Constance maintained she had not yet received the full amount
of Countable Assets. Constance specifically argued that cer-
tain inter vivos gifts she had received during Eileen’s lifetime
were intended by Eileen to be separate and distinct from the
testamentary bequests made in Eileen’s trust instruments and

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
that therefore, such gifts would not reduce the amount she
would receive under the Countable Assets provision. Based
on the language of the trust instrument and evidence, the
county court found that Constance had already received more
than the $5 million due in Countable Assets. The county court
granted summary judgment against Constance on all issues
and dismissed Constance’s petition. Constance appeals. We
affirm the orders of the county court.
II. STATEMENT OF FACTS
On October 19, 2007, Eileen executed the “Third Amended
and Restated Trust Agreement” (Trust Agreement) that cre-
ated the Eileen Ryan Revocable Trust. The Trust Agreement
used a marital and family trust arrangement such that if Eileen
predeceased her husband, Wayne L. Ryan, her assets would be
divided into “marital” and “family” shares. The marital and
family shares would then be further divided into subtrusts.
The assets would be held in subtrusts for the remainder of
Wayne’s lifetime, with provisions for distribution of income
or principal under certain circumstances.
Eileen 	died 	in 	2013, 	at 	which 	point 	the 	Eileen 	Ryan
Revocable Trust was created and funded. This proceeding con-
cerns a portion of the Trust Agreement governing the Eileen
Ryan Marital Trust (Marital Trust) that bequeathed $5 million
in Countable Assets to each of Eileen’s children. Eileen and
Wayne had five children: Constance, Timothy Ryan, Stacy
Ryan, Carol Ryan, and Steven Ryan (collectively the children).
Only the Countable Assets provision in the Marital Trust is
specifically at issue in this case, and we sometimes refer to the
provision at issue as falling under the Trust Agreement for ease
of reference.
After Wayne died in 2017, the children began disputing
the Countable Assets bequest, some asserting that the $5
million bequest had already been satisfied by amounts each
child previously received from “Grantor Retained Annuity
Trusts” (GRATs) established by Eileen and Wayne prior to
Eileen’s death.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
1. The Contested Trust
Language of Section 9
Below, we set forth relevant portions of the Trust Agreement
concerning the Countable Assets included in Eileen’s bequests
to each of the children. Section 9(e)(i) of the Trust Agreement
provided that the amount distributed to a particular child of the
settlor would be “[the] amount, if any, as needed at the time
of the death of the survivor of Settlor and Settlor’s husband
to give [$5 million] in Countable Assets (as defined below) to
each of Settlor’s children.” Section 9(e)(i) explained that
[t]o the extent that the Wayne L. Ryan Revocable Trust
Agreement contains a similar bequest, the total of such
bequests per child shall be [$5 million] and, to the extent
assets are available within the Wayne L. Ryan Revocable
Trust, shall be satisfied first pursuant to the Wayne L.
Ryan Revocable Trust Agreement.
Countable Assets were defined in section 9(e)(i)(1) as follows:
“Countable Assets” for purposes of computing this [$5
million] shall include any amount(s) currently distribut-
able to a child pursuant to other provisions of the Eileen
Ryan Revocable Trust or the Wayne L. Ryan Revocable
Trust, any amount passing to Settlor’s children pursu-
ant to any Irrevocable Trust which either Settlor and/
or Settlor’s husband have established during their life-
times, and any amounts passing automatically to any of
Settlor’s children by reason of either of the deaths of
Settlor and/or Settlor’s husband by virtue of beneficiary
designation, survivorship, payable on death transfer or
joint title (or joint ownership). Countable Assets shall
also include any assets, at their current values, from any
of the above sources even if not currently distributable
to such child if the only reason such amounts are not
currently distributable is because the beneficiary has not
reached a required age for distribution. Any debt owing
to Settlor by a child, as evidenced by a promissory note
or other loan documentation, shall be extinguished and

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
the amount of remaining unpaid principal and accrued
interest, if any, otherwise due and owing to Settlor shall
count toward such [$5 million] for such child.
(Emphasis supplied.)
The Trust Agreement was written and updated several times.
The final and controlling version was made on October 19,
2007, and the Countable Assets provision contained in the
Marital Trust remained substantially the same as it was in
a 2004 version of the Trust Agreement. In the 2007 Trust
Agreement, the residuary from the bequest of Countable Assets
would be split one-half to the Ryan children and one-half to
The Ryan Foundation.
2. The GRATs
In July 2007, Eileen and Wayne each implemented GRATs
funded by Streck, Inc., shares. The record shows that GRATs
are a type of irrevocable gifting trust that allow a grantor to
pass wealth to the next generation with little or no gift tax cost.
GRATs allow a grantor to transfer property to a beneficiary
while retaining the right to an annuity from the transferred
property. Badgley v. U.S., 957 F.3d 969 (9th Cir. 2020). The
grantor creates an irrevocable grantor trust for a fixed term of
years, transfers assets into it, and designates trustees and ben-
eficiaries. Id. The grantor receives an annuity for a specified
term of years. Id.
In earlier proceedings in this case, and prior to Constance’s
present petition, the county court made a specific finding that
each of the children had received 2,665,346 shares of Streck
from the GRATs of Eileen and Wayne. At that time, the court
valued the shares of each child at $7,383,008.
3. Proceedings
Constance petitioned the county court to interpret the trust
instrument and declare rights or to reform the trust. The peti-
tion alleged that a dispute existed as to the interpretation of
the provisions of section 9 regarding the Countable Assets
bequest because other beneficiaries had asserted that the

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
bequest had been satisfied by distributions that the children
received in 2009 from the GRATs. The petition alleged that
such interpretation was contrary to the language of the trust
instrument and contrary to Eileen’s actual intention that each
of the children would receive $5 million from the Marital
Trust. To the extent the language of the trust instrument did
not reflect Eileen’s actual intent, the petition also sought ref-
ormation to bring certain Trust Agreement provisions concern-
ing the Marital Trust in line with Eileen’s intentions. See Neb.
Rev. Stat. § 30-3841 (Reissue 2016). See, also, Unif. Trust
Code § 415, 7D U.L.A. 176 (2018).
4. Cross-Motions for
Summary Judgment
On January 28, 2022, Constance filed a motion for summary
judgment. On July 21, 2022, Steven, acting as personal rep-
resentative of Wayne’s estate (Personal Representative), filed
a motion for partial summary judgment as to the interpreta-
tion of the trust. Through counsel, The Ryan Foundation and
Timothy, Carol, and Steven, acting individually, filed joinders
to the motion filed by the Personal Representative. Present
at the hearing on the motions were counsel for Constance;
Timothy, Carol, and Steven; the Personal Representative; The
Ryan Foundation; First National Bank of Omaha, the current
trustee (FNBO-Trustee); and the Attorney General’s office.
The county court admitted affidavits and extensive docu-
mentary evidence. Constance offered extrinsic evidence to
support her argument for reformation of Eileen’s trust. The
extrinsic evidence includes estate planning memorandums,
other versions of the Trust Agreement, and affidavits, includ-
ing Constance’s affidavit testimony regarding meetings she
attended at which the trust was discussed. They were offered
for the limited purpose of determining the question of whether
the Trust Agreement should be reformed.
In an order filed March 24, 2023, the county court deter-
mined that the Trust Agreement was not ambiguous and found
that Eileen’s intent could be clearly ascertained from the

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
language of the bequest. It noted that Eileen was a sophis-
ticated businesswoman, as well as an experienced creator of
trusts, and that the Trust Agreement was executed after Eileen
consulted privately with counsel. The court’s order addressed
the issue of whether the GRATs were includable as irrevo-
cable trusts under the second clause of section 9(e)(i)(1). The
court determined that the amounts the children received from
the GRATs were Countable Assets because they satisfied the
trust language as “any amount passing to Settlor’s children
pursuant to any Irrevocable Trust which either Settlor and/or
Settlor’s husband have established during their lifetimes.”
Our record shows that the proceedings in this matter con-
tinued for several years prior to the present motions and that
some of the issues in the matter before us implicate disputes
regarding when and how shares of Streck stock should be
valued. The county court found that assets received from the
GRATs satisfied the distributions of $5 million to Constance
and the other children. The court found that Constance was
not entitled to additional assets under equalizing provisions
in the Trust Agreement. The court rejected Constance’s argu-
ment to the effect that distributions from the GRATs were inter
vivos rather than testamentary gifts and, in her view, were
ineligible to be treated as Countable Assets. The county court
granted the partial summary judgment motion filed by the
Personal Representative.
Subsequently, Constance moved to alter or amend the order.
At the hearing on the motion, the parties made stipulations and
jointly asked the county court to grant the motion to alter or
amend all issues presented, resulting in rulings to the effect
that the Personal Representative’s motion for partial summary
judgment was treated as a motion for full summary judgment
and was granted, and all issues raised in Constance’s petition
for declaratory relief and for reformation were decided unfa-
vorably against her. On April 27, 2023, the county court filed
the second order that granted summary judgment on all issues
and denied and dismissed Constance’s petition.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
In its April 27, 2023, order, the county court reiterated its
determination that the language of the Trust Agreement was
not ambiguous. It further determined that Constance did not
present the court with evidence to create a question of fact
as to whether, through mistake, the trust failed to contain
the terms that Eileen intended. It found no genuine issue of
material fact as to whether a mistake of fact or law affected
the specific terms of the document or were inconsistent
with Eileen’s intent at the time the trust was created. See
§ 30-3841.
5. Motion in Limine
Also relevant in this appeal are issues stemming from a
motion filed by Constance prior to the hearing on the motions
for summary judgment. Constance’s motion in limine chal-
lenged Steven’s participation and asserted that Steven, acting
as the Personal Representative, “is not a beneficiary” and “is
not an interested party.” The motion in limine sought to pro-
hibit any “evidence, argument, questioning of witnesses, or
statements of counsel referring or relating to the Estate’s tax
filing, tax payment, or alleged IRS ‘approval’ of its tax filing.”
Steven, as the Personal Representative, had appeared in prior
proceedings in this matter for several years prior to the motions
for summary judgment, and notably, his motion for summary
judgment herein was joined by some of the other children and
other parties. The court denied Constance’s motion in limine
and found that the Personal Representative’s administration
of Wayne’s estate and its obligation for estate and inheritance
taxes owed by Eileen’s estate are intertwined matters. Steven
was permitted to introduce evidence of valuations of assets
and the process by which tax filings on behalf of Wayne’s
estate were prepared pursuant to court order in collaboration
with the FNBO-Trustee and the Attorney General. As part of
this tax filing, Countable Assets were valued, calculated, and
accepted by an Internal Revenue Service determination, the
Attorney General, the trustee for federal estate tax purposes,

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
the Douglas County Attorney, and the county court for inherit-
ance tax purposes.
Constance appeals from the orders of March 24 and April
27, 2023. The Personal Representative filed a brief responding
to Constance’s assignments of error.
III. ASSIGNMENTS OF ERROR
Constance generally claims that the county court erred
when it granted summary judgment against her and denied and
dismissed her petition. Constance specifically claims, summa-
rized and restated, that the county court erred when it deter-
mined that (1) the GRATs distributed to the children prior to
Eileen’s death were irrevocable trusts and satisfied Eileen’s
Countable Assets bequest of $5 million to each of the children
and (2) the evidence did not require reformation of the trust
instrument. She further claims that (3) the court erred when
it permitted Steven, acting as the Personal Representative
of Wayne’s estate, to offer evidence and argument on the
Countable Assets issue.
IV. STANDARDS OF REVIEW
[1] Appellate review under the Nebraska Probate Code is
an issue-specific approach. See In re Margaret L. Matthews
Revocable Trust, 312 Neb. 381, 979 N.W.2d 259 (2022).
[2] Absent an equity question, an appellate court reviews
trust administration matters for error appearing on the record;
but where an equity question is presented, appellate review of
that issue is de novo on the record. Id.
[3,4] Whether an action for declaratory judgment is to be
treated as one at law or one in equity is to be determined by
the nature of the dispute. Id. The test is whether, in the absence
of the prayer for declaratory judgment, the issues presented
should properly be disposed of in an equitable action, as
opposed to a legal action. Id. The interpretation of the words
in a will or a trust presents a question of law. In re Estate of
Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021). In instances
when an appellate court is required to review cases for error

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
appearing on the record, questions of law are nonetheless
reviewed de novo on the record. In re William R. Zutavern
Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).
[5] A proceeding to reform a written instrument is an
equity action. In re Trust Created by Isvik, 274 Neb. 525,
741 N.W.2d 638 (2007). Because reformation is an equity
issue, an appellate court reviews a reformation issue in a
trust administration proceeding de novo on the record. See id.
In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue. Id.
[6,7] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d
39 (2023). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. Id.
V. ANALYSIS
In this appeal, Constance repeats her arguments made below,
including that the Countable Assets in the Trust Agreement
do not include completed lifetime gifts such as the distribu-
tions from the GRATs. Constance claims that the county court
improperly “relied upon a technical definition” when it found
that the Trust Agreement was unambiguous, brief for appel-
lant at 36, and instead should have found that Eileen’s actual
intent was for the children to receive an additional $5 million,
even if each child had received assets from irrevocable sources
in Eileen’s lifetime. Alternately, Constance contends the trust
should be reformed based on extrinsic evidence she claims
demonstrates Eileen’s true intentions.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
The 	Personal 	Representative 	contends 	that 	the 	Trust
Agreement is not ambiguous, that there are no genuinely
controverted issues of material fact, and that Constance has
already received the $5 million in Countable Assets. He asserts
that Constance’s evidence was not sufficient to establish a
genuine issue of material fact as to whether Eileen’s intent and
the terms of the Trust Agreement in section 9(e)(i)(1) were
affected by a mistake of fact or law. The county court found
merit to the contentions of the Personal Representative, as
do we.
1. The County Court Did Not Err When It Denied
Constance’s Motion in Limine Concerning
the Personal Representative
As an initial matter, we address Constance’s claim that
Steven, acting as the Personal Representative of Wayne’s
estate, should not have been allowed to participate in the
present proceedings, including the filing of the motion for
partial summary judgment. We note that other parties joined
the motion for partial summary judgment and that the motion
was squarely before the county court. Constance asserted that
Steven should not have been allowed to offer evidence of the
interpretation and valuation of the Countable Assets. Although
there may be other impacts, Steven’s primary asserted basis
for participation was that the outcome would affect the tax
returns he was obligated to file as the Personal Representative
of Wayne’s estate, which returns are impacted by the value of
Eileen’s estate. We believe this assignment of error is with-
out merit.
[8,9] This is an appeal from Constance’s request to declare
rights under the Trust Agreement. When declaratory relief is
sought, it is a statutory requirement that “all persons shall
be made parties who have or claim any interest which would
be affected by the declaration.” Neb. Rev. Stat. § 25-21,159
(Reissue 2016). See SID No. 2 of Knox Cty. v. Fischer, 308
Neb. 791, 957 N.W.2d 154 (2021). Our cases have generally

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
described those who must be made parties as statutorily
mandated necessary parties, interested or necessary parties,
significant necessary parties, or necessary and indispensable
parties. Id. A party is “indispensable” when the party has
an interest in the controversy to an extent that such party’s
absence from the proceedings prevents the court from mak-
ing a final determination concerning the controversy without
affecting such party’s interest. Id.
Here, the county court could not make a final determina-
tion concerning the controversy without affecting the interest
of the Personal Representative. Neb. Rev. Stat. § 30-3812
(Reissue 2016) allows the court to intervene in the adminis-
tration of a trust, including an action to declare rights, to the
extent its jurisdiction is invoked by an interested person or
as provided by law. See Unif. Trust Code § 201, 7D U.L.A.
114 (2018).
Constance argues that since a personal representative may
lack standing to challenge an order of distribution, or appeal
the distribution of a probate estate, see 34 C.J.S. Executors
and Administrators § 673 (2022) and In re Estate of Craig,
101 Neb. 439, 163 N.W. 765 (1917), then it follows that he or
she would not be allowed to participate in an action to declare
rights under a trust. We do not agree.
In this case, the Personal Representative was not taking
an appeal or challenging an order of distribution but was
participating in an action to declare rights. He had been part
of the proceedings and participated for several years prior
to this matter. Although Steven was not a beneficiary in his
capacity as the Personal Representative, he was indispensable
because the proceedings affected his interests, which, in the
instant case, were to dutifully administer and settle Wayne’s
estate. Eileen’s Marital Trust assets were subject to estate
taxes under Wayne’s estate under the structure of the estate
plan. Because Eileen’s trust was included in Wayne’s estate
for various tax purposes, including a marital deduction, the
size of Eileen’s trust impacted Wayne’s estate. There are other

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
impacts on Wayne’s estate not repeated here. The county court
had recognized the interconnectedness of the two estates for
Nebraska inheritance tax calculations for Wayne’s estate, and
the Personal Representative had been discharged from per-
sonal liability by the Internal Revenue Service after a deter-
mination of the tax paid. A recalculation of the Countable
Assets would affect the Personal Representative’s duties.
Thus, Steven was an indispensable party in this case and
properly participated in the proceedings. This assignment of
error is without merit.
2. Constance Received Sufficient Distributions
in Eileen’s Lifetime to Satisfy the $5 Million
Countable Assets Bequest in Section 9
of the Trust Agreement
Constance 	asserts 	that 	we 	should 	interpret 	the 	Trust
Agreement such that lifetime distributions such as those from
the GRATs would not be Countable Assets under section
9(e)(i) of the Trust Agreement. We believe the interpretation
urged by Constance is not consistent with the unambiguous
language of the Trust Agreement, and there is no genuine
issue of material fact that the children received more than $5
million in Countable Assets from, inter alia, distributions from
irrevocable trusts such as the GRATs.
(a) Article 9(e) of the Trust Agreement
Is Not Ambiguous
Constance urges us to find that the Trust Agreement is
ambiguous and that the “Irrevocable Trust” in section 9(e)(i)(1)
pertains only to assets received from irrevocable trusts after
Eileen’s death. We decline to do so. The Trust Agreement’s
definition of Countable Assets is not ambiguous, as the county
court correctly determined.
Pursuant to section 9, the Trust Agreement provides that
the amount distributed from the Marital Trust on behalf of a
particular child of the settlor would be “[the] amount, if any,
as needed at the time of the death of the survivor of Settlor

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
and Settlor’s husband to give [$5 million] in Countable
Assets (as defined below) to each of Settlor’s children.” We
repeat the contested portion of section 9(e)(i)(1):
“Countable Assets” for purposes of computing this [$5
million] shall include any amount(s) currently distribut-
able to a child pursuant to other provisions of the Eileen
Ryan Revocable Trust or the Wayne L. Ryan Revocable
Trust, any amount passing to Settlor’s children pursu-
ant to any Irrevocable Trust which either Settlor and/
or Settlor’s husband have established during their life-
times, and any amounts passing automatically to any of
Settlor’s children by reason of either of the deaths of
Settlor and/or Settlor’s husband by virtue of beneficiary
designation, survivorship, payable on death transfer or
joint title (or joint ownership). Countable Assets shall
also include any assets, at their current values, from any
of the above sources even if not currently distributable
to such child if the only reason such amounts are not
currently distributable is because the beneficiary has not
reached a required age for distribution. Any debt owing
to Settlor by a child, as evidenced by a promissory note
or other loan documentation, shall be extinguished and
the amount of remaining unpaid principal and accrued
interest, if any, otherwise due and owing to Settlor shall
count toward such [$5 million] for such child.
(Emphasis supplied.)
Constance 	suggests 	several 	interpretations, 	focusing 	on
the testamentary nature of the Countable Asset bequest and
emphasizing the language of the first clause. She argues that
phrases 	like 	“currently 	distributable” 	are 	testamentary 	in
nature, and thus the section is “intended to capture amounts
passing through irrevocable trusts that exist at the time of
[Wayne’s] death.” Brief for appellant at 29. We disagree with
this interpretation.
The interpretation of the words in a will or a trust presents
a question of law. In re Estate of Brinkman, 308 Neb. 117,

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
953 N.W.2d 1 (2021). The clauses in section 9(e)(i)(1) are not
uncertain, and reading the Trust Agreement as a whole does
not make these terms ambiguous. For purposes of computing
the $5 million, the definition of Countable Assets, as printed
in italics and quoted above, includes “any amount passing to
Settlor’s children pursuant to any Irrevocable Trust, which
either Settlor and/or Settlor’s husband have established dur-
ing their lifetimes.” We believe “any amount . . . pursuant
to any Irrevocable Trust” includes the amount the children
received from the irrevocable GRATs, and such distributions
were therefore Countable Assets. Eileen was a sophisticated
businesswoman and an experienced creator of trusts, and the
Trust Agreement was executed after consulting privately with
counsel. She was capable of excluding inter vivos gifts from
the “Irrevocable Trusts” provision included in the Countable
Assets, as illustrated by the previous clause that targeted
amounts “currently distributable” at the time of Wayne’s
death. When considering the complete provision, the reason-
able interpretation is to include distributions from the GRATs
as Countable Assets.
(b) Under Section 9’s Unambiguous Language,
Constance Received $5 Million
in Countable Assets
Because in earlier proceedings the county court had valued
the shares of Streck that each child received at $7,383,008,
the county court found that Constance had received more than
$5 million from the GRATs distributions. The fact that the
shares were valued at more than $5 million is not contested.
Because these distributions were Countable Assets, there is no
question that Constance was not entitled to additional assets
to satisfy the $5 million bequest under the provisions in sec-
tion 9.
3. Reformation of Trust
Constance also argues that regardless of whether the Trust
Agreement was ambiguous, it should be reformed because

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
it did not reflect Eileen’s actual intent. She relies on affida-
vit evidence discussing Eileen’s estate planning process and
identifies testimony that Eileen made subsequent statements
to the effect that her estate plan included a $5 million bequest
to each of her children. She argues that this extrinsic evidence
creates a genuine issue of material fact as to Eileen’s intent
and requires reformation of the Trust Agreement. We do
not agree.
[10] As an initial matter, we recognize that parol evidence
can be used in actions seeking reformation of trust instruments,
and a court may rely on such extrinsic evidence. See In re
Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).
Here, Constance’s central argument is that a settlor’s subse-
quent acts are of significance in construing an ambiguous trust
instrument. See, 90 C.J.S. Trusts § 230 (2020); Restatement
(Third) of Property: Wills and Other Donative Transfers § 10.2,
comment g. (2003). However, the Trust Agreement was not
ambiguous, and Constance’s speculation regarding construction
is not productive in this case.
We turn to the court’s power to reform an unambiguous
trust agreement. Constance’s petition sought reformation under
§ 30-3841. In this regard, Constance suggests that this statu-
tory section empowers a court to reform an unambiguous trust
to conform to “the settlor’s true intention,” brief for appel-
lant at 39, which she claims is shown by extrinsic evidence.
However, her partial excerpt of § 30-3841 does not include
the statute’s focus on correcting mistakes. The full language of
§ 30-3841 provides:
The court may reform the terms of a trust, even if
unambiguous, to conform the terms to the settlor’s inten-
tion if it is proved by clear and convincing evidence that
both the settlor’s intent and the terms of the trust were
affected by a mistake of fact or law, whether in expression
or inducement.
(Emphasis supplied.)

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
Thus, the question before us in this case under § 30-3841 is
whether there exists a genuine issue of material fact concerning
whether both Eileen’s intent and the terms of the trust “were
affected by a mistake of fact or law, whether in expression or
inducement.” Of course, a “‘post-execution change of mind’”
would not afford a basis for reformation of a trust. In re Trust
Created by Isvik, 274 Neb. at 537, 741 N.W.2d at 648 (citing
Restatement (Third) of Property: Wills and Other Donative
Transfers § 12.1, comment h. (2003)).
Even considering Constance’s extrinsic evidence, we do not
agree with Constance that the issues she identifies raise a gen-
uine issue of material fact under § 30-3841. In this proceed-
ing on summary judgment, where Constance would have the
burden of proof regarding reformation at trial, the Personal
Representative as movant may satisfy its prima facie burden
either by citing to materials in the record that affirmatively
negate an essential element of Constance’s claim for reforma-
tion or by citing to materials in the record demonstrating that
the evidence is insufficient to establish an essential element of
Constance’s claim. See Clark v. Scheels All Sports, 314 Neb.
49, 989 N.W.2d 39 (2023). The Personal Representative satis-
fied this burden. Constance has identified no evidence in the
record other than speculation that shows or infers that both
the intent and the terms of the Trust Agreement were affected
by a mistake of fact or law. Constance’s conjectures regarding
Eileen’s understandings are thin. After viewing the pleadings
and evidence in the light most favorable to Constance and
giving her the benefit of all reasonable inferences deduct-
ible from the evidence, we determine that evidence on the
reformation issue did not present a genuine issue of material
fact as to whether both Eileen’s intent and the terms of the
Countable Assets provision were affected by a mistake of fact
or law. The county court did not err when it granted summary
judgment on the reformation issue and denied and dismissed
Constance’s petition. Constance’s assignment of error regard-
ing reformation is without merit.

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IN RE EILEEN RYAN REVOCABLE TRUST
Cite as 316 Neb. 524
VI. CONCLUSION
Constance’s assignment of error regarding the participa-
tion of the Personal Representative is without merit. Under
the unambiguous language of section 9(e)(i)(1) of the Trust
Agreement, the distribution from the irrevocable GRATs to
Constance satisfied the $5 million Countable Assets bequest,
and Constance is not entitled to further distribution pursuant
to this provision. Constance has not identified evidence that
both the intent and the terms of the Trust Agreement were
affected by a mistake of fact or law under § 30-3841 preclud-
ing summary judgment, and the county court did not err when
it rejected her request to reform the Trust Agreement. We
affirm the orders of the county court.
Affirmed.
Funke, J., not participating.