In re Estate of Knapp

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
In re Estate of Paul A. Knapp, deceased.
Barbara Knapp, appellant, v. Lance Knapp,
Personal Representative of the Estate
of Paul A. Knapp, deceased, appellee.
___ N.W.3d ___
Filed April 3, 2026. 	No. S-24-619.
1. Contracts: Judgments: Appeal and Error. The meaning of a contract
is a question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
2. Equity: 	Contracts: 	Specific 	Performance: 	Decedents’ Estates:
Appeal and Error. An action to compel specific performance of an
oral contract to devise real property by will is equitable in nature and is
reviewed by an appellate court de novo on the record.
3. Appeal and Error. In a de novo on the record review, an appellate
court makes findings independent of the trial court; however, where
credible evidence is in conflict on a material issue of fact, the appel-
late court considers and may give weight to the fact that the trial court
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. Words and Phrases. An ambiguity is an uncertainty of meaning based
not on the scope of a word or phrase but on a semantic dichotomy that
gives rise to any of two or more quite different but almost equally plau-
sible interpretations.
5. Reformation. Reformation is based on the premise that the parties had
reached an agreement concerning an instrument, but while reducing
their agreement to a written form, and as the result of mutual mistake or
fraud, some provision or language was omitted from, inserted, or incor-
rectly stated in the instrument intended to be an expression of the actual
agreement of the parties.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:45 AM CDT

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
6. Reformation: Evidence: Proof. Before reformation of an instrument
will be allowed, the party seeking such reformation on a claim of mutual
mistake must, by clear and convincing evidence, prove existence of such
mistake in reference to the instrument to be reformed.
7. Wills. Under Neb. Rev. Stat. §§ 30-2327 to 30-2329 (Reissue 2016),
wills must be in writing.
8. Contracts: Specific Performance: Decedents’ Estates: Proof. In an
action for specific performance of an oral agreement with a deceased
person to convey land, one trying to enforce such a contract must
prove (1) an oral contract the terms of which are clear, satisfactory,
and unequivocal and (2) that the thing done constituting performance
is such as is referable solely to the contract sought to be enforced, and
not such as might be referable to some other or different contract.
Appeal from the County Court for Dodge County: Francis
W. Barron III, Judge. Affirmed.
Mary L. Hewitt, of McGill, Gotsdiner, Workman & Lepp,
P.C., L.L.O., for appellant.
Sheila A. Bentzen, of Rembolt Ludtke, L.L.P., for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Bergevin, J.
INTRODUCTION
Barbara Knapp appeals from the county court’s order dis-
allowing, in part, her claims against the estate of her husband,
Paul A. Knapp. In dispute are her claims for proceeds from the
sale of their marital residence and for a statutory maintenance
fund. 1 Barbara’s claims arise out of her and Paul’s premarital
agreement and a purported subsequent oral agreement between
them. We affirm.
BACKGROUND
Paul was previously married to Diane Knapp, and their
marriage produced two children, including Lance Knapp, the
1 See Neb. Rev. Stat. §§ 30-2324 and 30-2325 (Reissue 2016).

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
personal representative of Paul’s estate. In 2010, Paul exe-
cuted a will leaving his property, less a few personal items,
to Diane. In the event Diane predeceased Paul, his property
was to be split between his children and grandchildren. Diane
predeceased Paul in 2011. The parties do not dispute that Paul
did not revoke that will or execute a subsequent will 2 before
his own death in April 2023. Lance, as personal representa-
tive of Paul’s estate, filed an action in the county court to
probate Paul’s 2010 will. Barbara filed various claims against
Paul’s estate in that action. Lance disallowed the claims,
and the matter proceeded to trial. The only two claims at
issue concerned the marital residence and a statutory mainte-
nance fund.
Marital Residence Remodel
After Diane’s death, Paul and Barbara began dating and
eventually got engaged to be married. In anticipation of mar-
riage, the couple agreed that Barbara would sell her home
and that they would reside in Paul’s home, which would be
remodeled. They chose Paul’s home because it had “less
stairs,” and both of them were having knee issues. Paul had
wanted to remodel his home for some time, and Barbara testi-
fied that he had asked her to contribute funds for the remodel.
The remodel included a full build-out. As Lance described the
remodel, “It was a house added onto a house,” and included,
among other things, the addition of a primary bedroom to the
first floor of the home and a sewing room for Barbara. The
construction of the remodel began in 2015 or 2016 and was
completed by the time the couple married in October 2016.
However, at the time they married, all the related invoices had
not yet been received, paid, or both.
Premarital Agreement
In September 2016, the month before they married, Paul and
Barbara, both represented by counsel, executed a premarital
2 See Neb. Rev. Stat. § 30-2332 (Reissue 2016).

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
agreement. 3 Specific relevant provisions of the agreement
are set forth below, but, generally, Paul and Barbara agreed
that their separate property would remain separate. The dis-
closures of their separate property were incorporated into
the agreement. 4
Relevant here, Paul and Barbara each disclosed that they
owned their respective personal residences. Paul’s disclosure
also listed a loan from Barbara of approximately $31,000 as
a liability. Barbara testified that the loan was for Paul’s credit
card debt because they did not want to carry that debt into the
marriage. Both of them had agreed that the funds were a loan,
not a gift, and Paul eventually repaid the debt in full.
Barbara’s counsel drafted the premarital agreement. It pro-
vided, generally, that separate property included “[a]ll prop-
erties so belonging to the party as of time of marriage to the
other party,” and separate property “shall cease” to be sepa-
rate property if one of them transferred title to both of their
names as joint tenants with rights of survivorship. Article
VII of the premarital agreement covered the parties’ sepa-
rate property rights. It provided that “[e]xcept as specifically
provided to the contrary elsewhere,” both Paul and Barbara
would remain “the sole owner of . . . all Separate Property
of any kind owned by such party at any time” and that upon
their deaths,
the Separate Property of the deceased spouse shall descend
to and vest in the deceased spouse’s beneficiaries, heirs
at law, distributees, legatees, or devisees, and in such
manner as may be prescribed by his or her Last Will and
Testament, Codicil, Trust, title, or beneficiary designation
(or in absence of such designations, by the statutory laws
3 See Neb. Rev. Stat. § 36-202 (Reissue 2016) (“every agreement, promise
or undertaking made upon consideration of marriage” shall be void unless
in writing and subscribed).
4 See Neb. Rev. Stat. § 30-2316 (Reissue 2016) (“fair and reasonable
disclosure of the property [and] financial obligations”).

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IN RE ESTATE OF KNAPP
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then in force), all as though no marriage had ever taken
place between them.
The particular issue in this appeal concerns “Article XI[:]
Control and Management of Property,” and its cross-reference
to “Article 9.4” (article 9.4). Article XI provided that each
party had the “full right to own, control, manage, and dispose
of his or her Separate Property” and that they each had the
“full right to encumber, sell, give away, or otherwise dispose
of any property owned by such party without the consent of
the other party.” The article also provided that they were each
“free to provide for disposition of their own estate at time of
death in any way that he or she wishes and to anyone that he
or she wishes.”
Finally, and most relevantly, the article provided that the
survivor of the two of them had “no claim against the estate
of the other” based on their relationship as husband and wife,
“[e]xcept for property which is titled between the two parties
as joint tenants with rights of survivorship, and the provisions
regarding the personal residence, maintenance fund, and
vehicle as set forth in Article 9.4 above.” (Emphasis sup-
plied.) However, the premarital agreement does not contain
an “Article 9.4.”
In response to a subpoena for documents, Barbara’s counsel
produced only a few documents, purportedly due to a merger
of law firms, which caused the loss of documents. None of the
produced documents specifically addressed article 9.4 or its
intended contents, if any.
Oral Agreement
Paul’s friend testified that Paul stated on multiple occa-
sions that after the remodel, Barbara would receive 40 percent
of the marital residence. The first time was when Paul and
Barbara were beginning the “project of adding onto the house
and they were talking about marriage and things like that.”
And the last time was “within a month before [Paul] passed.”
As he put it: “[Paul] had told me that everything was taken

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
care of. It was going to be 60/40 and everybody knew it. . . .
The house would be 60/40, and [Barbara] could stay there as
long as she wanted.” Paul iterated this agreement “when they
got married, when they were building, [and] when Barb sold
her house. It was repeated.”
Barbara testified that when she and Paul were preparing
their premarital agreement, they had agreed that
I would try to pay half of — or close to half of whatever
needed to be paid in the house. And he would do the
same. And after the — if something happened to either of
us, we would stay in the house for as long as we wanted.
And then the house would be split.
However, she was “not sure [they] said 60/40 yet.” She tes-
tified that they reached that agreement “probably — I think
around the time that I sold my house. So, that was in 2017.”
Barbara asserted that she fulfilled her side of the agreement
with Paul and that she “tried to contribute everything [she]
could.” Accordingly, she contended that because Paul pre-
deceased her, she “could stay there as long as [she] wanted,”
and that she was entitled to receive 40 percent of the proceeds
upon the sale of the marital residence.
Barbara adduced expenses related to the remodel that she
paid between July 2016 and November 2017, specifically,
approximately $16,000 that was paid to various contractors and
sellers for things such as new gutters, paint, cabinets, blinds,
and furnishings.
When Barbara sold her home in 2017, she received pro-
ceeds of approximately $39,000. Initially, those proceeds were
placed in Barbara’s separate checking account. But later, Paul
and Barbara refinanced the marital residence, and Barbara tes-
tified that the proceeds from the sale of her home were used
to fund the refinancing. However, Barbara did not adduce evi-
dence that specifically traced the proceeds to the refinancing.
Both Paul and Barbara were borrowers on the new mortgage
and executed the deed of trust. Barbara testified that she
thought the deed of trust was “the deed on the house,” and

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
because it said, “Paul A. Knapp and Barb A. Knapp as hus-
band and wife,” she thought that she was a title owner of the
marital residence.
Throughout 	their 	marriage, 	Paul 	and 	Barbara 	divided
the responsibilities for their living expenses. Barbara paid
the bills for the homeowners’ association, utilities, internet,
lawn care, and the home security company, and Paul paid the
mortgage and sometimes the phone bill. When things would
break in the marital residence, such as the oven and refriger-
ator, if Paul could not repair the issue, Barbara would pay for
the “fix-it guys.” Occasionally, Barbara would contribute to
the mortgage payment “if [Paul] had a month that he needed
to have extra.”
Barbara also testified that she and Paul discussed a mainte-
nance fund for each other to ensure that either of them could
remain in the marital residence for as long as they wanted in
the event one of them died.
Paul was diagnosed with cancer in 2021. Barbara testified
that in 2022, she and Paul seriously discussed what would
happen upon his death, and that their prior agreement was reit-
erated: “That [Barbara] could stay in the house as long as [she]
wanted. And [Paul] preferred that [she] stay there. And that
when the house was sold, 60 percent would go to his children,
and 40 percent would go to [Barbara].” Before his death, Paul
did not update the deed to the marital residence or his will.
Barbara’s brother testified and recounted that in March 2023,
he had a private conversation with Paul. Paul told him that
“[Barbara] won’t have to worry. She’s welcome to live in
this house for as long as she wants.”
. . . “[A]nd besides that, if the house ever sells,
[Barbara] knows that she’s going to get 40 percent of the
proceeds and the rest of the family will get 60 percent.”
. . .
. . . .
. . . [Paul] indicated to me that he thought [the
remodel] would add 40 percent of the value of that house

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IN RE ESTATE OF KNAPP
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at that — you know. And that’s kind of how he came up
with the numbers 60/40. And that’s kind of roughly what
he told me.
One of Barbara’s friends, who became a friend of Paul,
testified that she had a private conversation with Paul in
October 2022:
[H]e said, you know, I don’t know what’s going to go on
from here. But everything is all cut and dried. And this
is what I want. These are my wishes. And, you know,
[Barbara] is supposed to get 40 percent. And Diane’s chil-
dren are supposed to get 60.
. . . .
. . . [Barbara] could live there as long as she wanted to
live there. And then it should be divided.
. . . .
. . . I’m not the only one that knew this. [Paul] was
very open about his wishes. So, I’m sure everyone
knew this.
Barbara’s daughter testified that she first had a conversa-
tion with Paul about the marital residence within the month or
two of Paul and Barbara’s marriage in October 2016. She was
worried about what would happen to Barbara if something
were to happen to Paul, so she asked him. He said, “[Barbara]
can live there . . . as long as she wants. When the house
is sold, he would like the proceeds to be split 60/40 with
[Barbara] getting 40. . . . Because of the — what [Barbara]
had put into the remodel of the house.” When asked whether
this arrangement was something Paul had just thought of,
Barbara’s daughter stated that it “was a plan.” Barbara’s
daughter also recounted a conversation she had with Paul in
December 2022, wherein Paul reiterated the plan.
Disallowance of Claims
Lance testified that he denied Barbara’s claim for 40 percent
of the proceeds from the sale of the marital residence

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IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
[b]ecause that claim ha[d] no basis in law. It’s something
that they verbally discussed towards the end of his life
when they knew that he was not going to survive. The
first I ever heard about it was, you know, approximately
October or later of 2022. . . .
. . . .
. . . [Paul] was exceedingly brief about it. He just
said that when the house was sold that she should get 40
percent of the proceeds and the family should get the rest.
Lance also denied Barbara’s alternative claim for reimburse-
ment of the funds she spent on the remodel, “[b]ecause they
[were] not in a timely manner. There’s no proof of any of this.
I was never made aware of that — of this, as the [personal
representative] of the estate. This is all something I just came
upon after he passed.”
Jointly Titled Property
At trial, Lance argued that despite the premarital agree-
ment’s reference to “the personal residence, maintenance
fund, and vehicle” and the omitted article 9.4, property needed
to be jointly titled to give Barbara or Paul a claim against the
other’s estate. Lance relied heavily on two facts to show that
the marital residence remained Paul’s separate property at the
time of his death. The first was that in 2018, Paul traded in a
truck for a new one, which was jointly titled. Second, a month
before Paul’s death, he added Barbara as a named depositor
of his checking account. Lance implied that Paul knew how
to jointly title property to transmute separate property into
marital property. Thus, Paul knew he had to, and could have,
added Barbara to the deed of the personal residence, but he
did not.
County Court’s Order
The 	court 	considered 	whether 	Barbara 	was 	entitled 	to
40 percent of the proceeds for the sale of the marital res-
idence and a maintenance fund “by virtue” of the parties’

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IN RE ESTATE OF KNAPP
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premarital agreement or by a subsequent oral agreement, as
Barbara argued.
As for the premarital agreement, the court reasoned that if
the premarital agreement was written in clear and unambigu-
ous language, it must be enforced according to its terms. The
court found that article XI was unambiguous, but there was
“no evidence . . . that [the omission of article 9.4] was not
done intentionally or by mistake.” The court determined that
Barbara was “trying to add terms to the contract that were not
even discusse[d] until after the contract was signed.” It con-
cluded that there was “no mention of a maintenance fund or
a 40/60 in the [premarital agreement].” The court concluded
that under the premarital agreement, the marital residence
remained Paul’s separate property in its entirety because
Barbara was never added to the title as a joint tenant with
rights of survivorship. Similarly, the court rejected Barbara’s
contention that she was entitled to a statutory maintenance
fund as there was “no mention of a maintenance fund in
the contract.”
The court then considered whether there was evidence of
an oral contract to convey property at death that is outside
the effect of the statute of frauds due to partial performance.
The court found that the remodel project started in 2015 and
was mostly completed before Paul and Barbara married in
October 2016. The court further found that Barbara’s sale
proceeds were not spent on the marital residence until after
her home was sold in October 2017 and that Barbara had pre-
viously loaned money to Paul for his credit card debt, which
he repaid.
Under those facts, the court could not “find that by clear
and convincing evidence that at the time the terms of the con-
tract were clear,” because the alleged contract was entered into
when Barbara sold her home in 2017, 2 years after the remodel
project began and was near its completion, and 1 year after
her marriage to Paul. The court further could not find that “the

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IN RE ESTATE OF KNAPP
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money given to [Paul] was for this project or for a different
contract” because of the prior loan from Barbara to Paul for
his credit card debt.
Barbara filed a timely appeal, which we moved to our
docket on our own motion. 5
ASSIGNMENTS OF ERROR
Barbara assigns, reordered, that the county court erred in
(1) finding that the premarital agreement was clear and unam-
biguous for which extrinsic evidence could not be considered
to determine the meaning of the missing article 9.4, (2) hold-
ing the language of the premarital agreement constituted a
waiver by Barbara for a right to proceeds from the marital
residence and a maintenance fund, and (3) determining that
the undisputed facts were not clear and convincing evidence
of an enforceable oral contract that was supported by the per-
formance of the parties.
STANDARD OF REVIEW
[1] The meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below. 6
[2,3] An action to compel specific performance of an oral
contract to devise real property by will is equitable in nature
and is reviewed by an appellate court de novo on the record. 7
In a de novo on the record review, an appellate court makes
findings independent of the trial court; however, where cred-
ible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that
5 See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
6 White v. White, 316 Neb. 616, 6 N.W.3d 204 (2024).
7 Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).

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IN RE ESTATE OF KNAPP
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the trial court heard and observed the witnesses and accepted
one version of the facts rather than another. 8
ANALYSIS
We first consider Barbara’s claims for 40 percent of the
proceeds from the sale of the marital residence and a statu-
tory maintenance fund under Paul and Barbara’s premarital
agreement. We then consider whether Paul and Barbara had an
enforceable oral agreement.
Premarital Agreement
Barbara first argues that the cross-reference in article XI
of the premarital agreement to a “non-existent section, cre-
ates an inherent ambiguity.” 9 Barbara’s argument misuses the
term “ambiguity.”
[4] As we have recognized, an ambiguity is “‘[a]n uncer-
tainty of meaning based not on the scope of a word or phrase
but on a semantic dichotomy that gives rise to any of two or
more quite different but almost equally plausible interpreta-
tions.’” 10 Here, Paul and Barbara’s premarital agreement does
not contain a semantic dichotomy—nor does Barbara argue
that it does. In essence, Barbara contends that article 9.4 is
ambiguous because article 9.4 does not exist. However, arti-
cle 9.4 is an omitted term. Neither it nor its cross-reference
contains a word or phrase that gives rise to different plausi-
ble interpretations.
[5,6] The remedy that Barbara seeks is more properly
characterized as reformation. Reformation is based on the
premise that the parties had reached an agreement concerning
an instrument, but while reducing their agreement to a written
form, and as the result of mutual mistake or fraud, some pro-
vision or language was omitted from, inserted, or incorrectly
8 See id.
9 Brief for appellant at 21.
10 Dirt Road Development v. Hirschman, 316 Neb. 757, 772, 7 N.W.3d 438,
449 (2024) (quoting Black’s Law Dictionary (11th ed. 2019)).

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stated in the instrument intended to be an expression of the
actual agreement of the parties. 11 In such cases, reformation
may be granted to correct an erroneous instrument to express
the true intent of the parties to the instrument. 12 However,
before reformation of an instrument will be allowed, the party
seeking such reformation on a claim of mutual mistake must,
by clear and convincing evidence, prove existence of such
mistake in reference to the instrument to be reformed. 13
Here, contrary to Barbara’s assertion in her assignment of
error, the county court did consider the extrinsic evidence
adduced at trial. In its written judgment, the court specifically
noted that Barbara “even testified that the 40/60 split was
first discussed when she sold her home after the marriage and
after the signing of the premarital agreement.” We too find
Barbara’s testimony belies her assertion that article 9.4 was
supposed to entitle her to 40 percent of the proceeds of the
marital residence. Paul and Barbara could not have intended
article 9.4 to provide for Barbara to have 40 percent of the
proceeds from the marital residence when they had not yet
reached that agreement. Additionally, no evidence was adduced
to support a finding that the provision was omitted by mistake.
We agree with the county court that reformation of the pre-
marital agreement to supply the contents of the omitted article
9.4 is inappropriate in this case.
As for Barbara’s claim to a statutory maintenance fund,
she argues that in the absence of article 9.4, the premarital
agreement provision that states “[e]xcept for . . . the provi-
sions regarding the personal residence, maintenance fund, and
vehicle as set forth in Article 9.4 above” should be read as a
11 In re Estate of Wiggins, 314 Neb. 565, 992 N.W.2d 429 (2023); Jelsma
v. Acceptance Ins. Co., 233 Neb. 556, 446 N.W.2d 725 (1989); Haines v.
Mensen, 233 Neb. 543, 446 N.W.2d 716 (1989); Newton v. Brown, 222
Neb. 605, 386 N.W.2d 424 (1986).
12 In re Estate of Wiggins, supra note 11; Jelsma v. Acceptance Ins. Co.,
supra note 11.
13 Haines v. Mensen, supra note 11; Newton v. Brown, supra note 11.

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general exception. She contends that because she released all
claims “[e]xcept for” a “maintenance fund,” her claim for a
statutory maintenance fund should be allowed. We disagree.
The plain language of the agreement does not set forth that
the exception is for a maintenance fund, as Barbara contends.
Instead, it excepts the “provisions” regarding the mainte-
nance fund “as set forth in Article 9.4.” (Emphasis supplied.)
However, in this case, the provisions of article 9.4 are omitted,
and the premarital agreement does not include a provision
regarding “the . . . maintenance fund.” (Emphasis supplied.)
Therefore, this language cannot be read to create an exception.
Instead, it merely references the exception that it purports is
in the omitted article 9.4. Accordingly, under the premarital
agreement, Barbara’s claim for a statutory maintenance fund
was properly disallowed.
Subsequent Oral Contract
Barbara next argues that the county court erred in failing
to find that she and Paul had an oral contract that she would
receive 40 percent of the marital residence upon Paul’s death
in exchange for her contributions to the payment of remodel-
ing costs, her assistance in refinancing the marital residence,
and their split of the household expenses. We note that the
record is devoid of documentary evidence showing Barbara’s
financial contribution to the refinance of the marital resi-
dence. The documentary evidence shows only that she was
a named borrower for the mortgage and executed the deed
of trust.
What the record does show is that Barbara “would try to
pay half of — or close to half of whatever needed to be paid
in the house” and that she paid for some remodel expenses
between July 2016 and November 2017. The record also
establishes that the parties executed their premarital agreement
in September 2016, in which Paul disclosed a debt owed to
Barbara for his credit card debt, and that the parties married
in October 2016. The record further shows that Barbara sold

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her home in October 2017, Barbara signed a deed of trust to
refinance the mortgage on the marital residence, and Paul paid
the mortgage while Barbara paid other household expenses
throughout the marriage. Finally, the record establishes that
Paul expressed the “60/40” arrangement around October 2016,
October 2017, in 2022, and in 2023. Despite Paul’s intention
for Barbara to receive 40 percent of the proceeds from the sale
of the marital residence, we find that the evidence is insuffi-
cient to establish an enforceable contract.
[7] Under Neb. Rev. Stat. § 36-103 (Reissue 2016),
No estate or interest in land, other than leases for a
term of one year from the making thereof, nor any trust
or power over or concerning lands, or in any manner
relating 	thereto, 	shall 	hereafter 	be 	created, 	granted,
assigned, surrendered, or declared, unless by operation
of law, or by deed of conveyance in writing, subscribed
by the party creating, granting, assigning, surrendering or
declaring the same.
However, property may also be transferred by a last will,
even though it is not a deed. 14 Neb. Rev. Stat. § 36-104
(Reissue 2016) provides that “[s]ection 36-103 shall not be
construed to affect in any manner the power of a testator in
the disposition of his real estate by a last will and testament,
nor to prevent any trust from arising or being extinguished by
implication or operation of law.” Like conveyances by deed,
wills must also be in writing. 15
Undisputedly, Paul did not execute a deed of conveyance
in writing that conveyed an interest in the marital residence
to Barbara. Nor did Paul execute a superseding last will and
testament that devised 40 percent of the proceeds of the marital
residence to Barbara.
Instead, Barbara relies upon the statutory exception to the
writing requirement for the conveyance of real property found
14 See Neb. Rev. Stat. § 76-203 (Reissue 2018).
15 See Neb. Rev. Stat. §§ 30-2327 to 30-2329 (Reissue 2016).

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Cite as 321 Neb. 155
in Neb. Rev. Stat. § 36-106 (Reissue 2016): “Nothing con-
tained in sections 36-103 to 36-106 shall be construed to
abridge the powers of a court of equity to compel the specific
performance of agreements in cases of part performance.”
[8] We have long held that in an action for specific per-
formance of an oral agreement with a deceased person to
convey land, one trying to enforce such a contract must prove
(1) an oral contract the terms of which are clear, satisfactory,
and unequivocal and (2) that the thing done constituting per-
formance is such as is referable solely to the contract sought
to be enforced, and not such as might be referable to some
other or different contract. 16
Here, we agree with the county court that Barbara has
failed to prove the terms of the oral contract and her partial
performance thereof. To create a contract, there must be both
an offer and an acceptance. 17 Generally, mutuality of obli-
gation is an essential element of every enforceable contract
and consists in the obligation on each party to do, or permit
something to be done, in consideration of the act or promise
of the other. 18
There is no question that Barbara proved Paul’s expressions
of an intent that she receive 40 percent of the proceeds from
the sale of the marital residence. However, Paul did not exe-
cute a subsequent will; thus, his intention alone is not enough.
Barbara needed to prove a contract existed. Upon our de novo
review of the record in this case, we cannot say that Barbara
clearly, satisfactorily, and unequivocally proved the essential
element of her obligation under the contract. As a result, she
has failed to prove her partial performance.
16 See, Eggers v. Rittscher, supra note 7; In re Estate of Layton, 212 Neb.
518, 323 N.W.2d 817 (1982); Busteed v. Sheffield, 153 Neb. 253, 44
N.W.2d 471 (1950); Overlander v. Ware, 102 Neb. 216, 166 N.W. 611
(1918), supplemented by 103 Neb. 375, 171 N.W. 901 (1919).
17 Morris v. Dall, 320 Neb. 122, 26 N.W.3d 304 (2025).
18 Id.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
IN RE ESTATE OF KNAPP
Cite as 321 Neb. 155
This case represents a cautionary tale about the importance
of ensuring that your will reflects your testamentary intent. 19
Paul did not revise his will to provide for Barbara to receive 40
percent of his home. If he had done so, the result in this matter
would have been different. 20
CONCLUSION
Paul and Barbara’s premarital agreement is unambiguous,
and reformation to supplement an omitted term is inappro-
priate on the facts of this case. Additionally, the premarital
agreement failed to except a maintenance fund from its bar on
claims against their respective estates. Furthermore, Barbara
has failed to prove the terms of an oral contract and her partial
performance thereof by clear, satisfactory, and unequivocal
evidence. Disallowance of Barbara’s claims was proper, and
we affirm the judgment of the county court.
Affirmed.
Miller-Lerman, J., not participating in the decision.
19 See §§ 30-2327 to 30-2329 (requirements that wills must be in writing)
and 30-2332 (revocation of will).
20 See Neb. Rev. Stat. § 30-2401 (Reissue 2016) (“[u]pon the death of a
person . . . property devolves to the persons to whom it is devised”).