In re Estate of Walker

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
In re Estate of Rita A. Walker, deceased.
Mark E. Walker, appellant, v.
Michael J. Walker, appellee.
___ N.W.3d ___
Filed October 17, 2025. 	No. S-24-680.
1. Judgments: Appeal and Error. The construction of a mandate issued
by an appellate court presents a question of law on which an appellate
court is obligated to reach a conclusion independent of the determination
reached by the court below.
2. Guardians and Conservators: Judgments: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code are
reviewed for error on the record. When reviewing a judgment for errors
on the record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Decedents’ Estates: Appeal and Error. An appellate court, in review-
ing a probate court judgment for errors appearing on the record, will
not substitute its factual findings for those of the probate court where
competent evidence supports those findings.
4. Appeal and Error: Words and Phrases. In appellate procedure, a
“remand” is an appellate court’s order returning a proceeding to the
court from which the appeal originated for further action in accordance
with the remanding order.
5. Courts: Appeal and Error. When a lower court is given specific
instructions on remand, it must comply with the specific instructions and
has no discretion to deviate from the mandate.
6. Judgments: Courts: Appeal and Error. When the judgment of a trial
court is reversed on appeal and the cause remanded without specific
instructions, it is the duty of the trial court to exercise its discretion in
the further disposition of the case.
7. Wills: Proof. A self-proved will establishes prima facie proof of testa-
mentary capacity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:47 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
8. Wills: Words and Phrases. One possesses testamentary capacity if the
testator understands the nature of the testator’s act in making a will or
codicil thereto, knows the extent and character of the testator’s property,
knows and understands the proposed disposition of that property, and
knows the natural objects of the testator’s bounty.
9. Wills. Testamentary capacity is tested by the state of the testator’s mind
at the time the will or codicil is executed.
10. Wills: Undue Influence. Undue influence sufficient to defeat a will
is manipulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s.
11. Wills: Undue Influence: Proof. To show undue influence, a will
contestant must prove the following elements by a preponderance of
the evidence: (1) The testator was subject to, or susceptible to, undue
influence; (2) there was an opportunity to exercise such influence; (3)
there was a disposition to exercise such influence; and (4) the result was
clearly the effect of such influence.
12. Undue Influence: Proof. Because undue influence is often difficult to
prove with direct evidence, it may be reasonably inferred from the facts
and circumstances surrounding the actor: his or her life, character, and
mental condition.
13. Undue Influence. Mere suspicion, surmise, or conjecture does not
warrant a finding of undue influence; instead, there must be a solid
foundation of established facts on which to rest the inference of
its existence.
Appeal 	from 	the 	County 	Court 	for 	Douglas 	County:
Stephanie S. Shearer, Judge. Affirmed.
Lisa M. Line, of Brodkey, Cuddigan, Peebles, Belmont &
Line, L.L.P., for appellant.
David D. Begley, of Elder Law and Estate Planning of
Nebraska, David D. Begley, P.C., L.L.O., for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Miller-Lerman, J.
NATURE OF CASE
In the first appeal of this matter, In re Estate of Walker,
315 Neb. 510, 997 N.W.2d 595 (2023), we determined that

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
the ruling of the county court for Douglas County excluding
exhibit 7—a purported will signed in 2016—must be reversed,
and the matter was remanded for reconsideration on the exist-
ing record with the sole addition of exhibit 7. Mark E. Walker
now appeals the order of the county court filed after remand
in which the court refused to admit for probate a will Mark
offered as that of his deceased mother, Rita A. Walker. The
court found that Mark failed to meet his burden to show that
Rita had testamentary capacity at the time she executed the
will, and the court also found that the will was the product of
undue influence. The court ordered probate of Rita’s estate as
an intestate estate and appointed Mark’s brother, Michael J.
Walker, as personal representative of Rita’s estate. We affirm
the county court’s order.
STATEMENT OF FACTS
Our statement of facts is based on the original record and the
proceedings on remand. Rita died on September 26, 2021. She
was survived by four sons—Michael, Richard Walker, Stephen
Walker, and Mark. On November 22, Mark filed a petition in
the county court in which he sought formal probate of a will
dated September 15, 2021, that he purported to be the validly
executed last will of Rita. The will offered by Mark named
Mark as the sole beneficiary and personal representative of
Rita’s estate, and it omitted Rita’s three other sons. This pro-
ceeding gave rise to the first appeal and, eventually, the current
appeal after remand.
Michael objected to the probate of the will offered by Mark.
He instead petitioned for a formal adjudication of intestacy
and nominated himself as personal representative. In opposing
the will offered by Mark, Michael alleged that (1) Rita lacked
testamentary capacity as of September 15, 2021, which was
11 days prior to her death, and (2) the will was the product of
undue influence.
The county court held a bench trial on Mark’s petition
for probate of the will. The court took evidence both from

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
Mark as the proponent of the will and from Michael as the
opponent of the will. Evidence received at the bench trial
included testimony by both Mark and Michael, as well as
their brothers, Richard and Stephen; testimony by other wit-
nesses; and various exhibits.
Mark testified in support of the offered will. Mark also
presented testimony by Thomas Kaspar, Jr., who was a friend
of Mark and had been a friend of Rita and her late husband.
Kaspar testified regarding his having notarized the will offered
by Mark.
During his testimony, Mark offered into evidence exhibit 7,
which was a typed document that Mark purported to be a prior
will that had been signed by Rita in February 2016. Exhibit 7
generally provided for the same disposition of the estate as the
will that Mark offered for probate and that named Mark as the
sole beneficiary and “Independent Executor” of Rita’s estate.
Michael objected to admission of exhibit 7 based on relevance.
The county court sustained Michael’s objection based on rel-
evance, and the court added that it found “a hearsay issue with
the document.” The court therefore refused to admit exhibit 7
into evidence.
Michael testified in opposition to the will. Michael called
Richard and Stephen as witnesses, and he recalled Mark to
testify. The brothers all generally testified regarding their inter-
actions with Rita and with one another in recent years. Michael
also presented testimony by Leslie Royal, a nurse who had
treated Rita at a rehabilitation facility a year or two prior to
Rita’s death. Rita had injured her back in a car accident in
which Mark had been driving. Royal testified, inter alia, that
one evening, she heard Mark “yelling” at Rita regarding the car
accident. Royal testified that Mark told Rita that she would “do
what [she was] told” or he would take her out of the rehabilita-
tion facility and she would “just die at home.” Royal testified
that she was alarmed by the incident and that she reported the
incident to the facility’s social services department.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
When Mark was recalled by Michael, he acknowledged he
had a tense discussion with Rita concerning Michael’s effort
to encourage Rita to pursue a personal injury action related to
the car accident. But Mark denied that he had said the specific
things that Royal had testified to, and he testified that while
he was aware a report had been made to the rehabilitation
facility’s social services department, no action was taken in
response to the incident.
Following the bench trial, on July 12, 2022, the county
court entered an order in which it concluded that the will
offered by Mark was validly executed, but the court refused
to admit the will for probate because it found that (1) Mark
failed to meet his burden to prove Rita’s testamentary capacity
at the time of the will’s execution in September 2021 and (2)
the will was the product of undue influence. In the order, the
court generally reviewed the testimony and evidence admitted
at the bench trial. The court noted the following evidence in
support of its findings.
Regarding its finding that Mark failed to prove Rita’s tes-
tamentary capacity, the county court stated that “testimony
about capacity from [Mark] was limited” but that the evi-
dence was clear that Rita was on hospice care and that she
“was taking pain medication as well as CBD oil, dying from
pancreatic cancer, and experiencing pain” when she signed
the will and that within 2 days of signing the will, Rita was
taken to the hospital “for a serious medical issue.” The court
noted testimony by Michael that “several days before signing
the Will, [Rita] was sleepy and unable to wake up because of
pain meds” and that “when talking she would lose her train
of thought and get frustrated.” The court stated that Mark
testified that he had drafted the will from a document he
obtained from the internet. The court stated that it “did not
hear evidence that [Rita] knew the nature of the acts she was
making in the Will, the nature and extent of her property, or
proposed disposition of her property.”

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
Regarding its finding that the proposed will was the prod-
uct of undue influence, the county court stated that it found
by a preponderance of the evidence that Rita “was sub-
ject to undue influence, Mark . . . had the opportunity to
exercise such influence on [Rita], there was a disposition to
exercise such influence, and the result was clearly the effect
of such influence.” In its July 12, 2022, order, the court set
forth the following evidence, some of which we have recited
above to support these findings:
The undisputed testimony is [Rita] was dying from
pancreatic cancer in September 2021. She was suffering
from pain, using prescription pain medication and CBD
oil, and on hospice care. The Will was executed 11 days
before her death. The Will was “written” by [Mark] who
admitted he “pulled it down of [sic] the internet.” There
was no evidence presented that [Rita] had the opportunity
to read or understand the contents of the Will. The Will
leaves everything to [Mark]. [Mark] signed as a witness as
did . . . Kaspar. Kaspar did not question [Rita] about the
contents of the Will. The Court found the testimony from
Royal to be credible and reliable. Mark threatened [Rita]
to do what he told her to, or she would die at home. The
Court acknowledges this was a year before the Will was
signed, however, the Court finds that evidence relevant to
[Mark’s] disposition to exercise influence. The evidence
shows [Mark] had every opportunity to exercise undue
influence. [Rita] lived with [Mark]. Evidence showed
[Rita’s] other three sons were making multiple visits a
week to visit [her]. [Mark] did not have any of them
serve as a witness to the execution of the Will. [Mark]
called a friend, Kaspar, to notarize the Will. The facts and
circumstances of the drafting of the Will, the nature and
timing of the execution, the opportunity and disposition
to exercise undue influence clearly prove to the Court the
Will is a product of undue influence.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
The court concluded its order by stating that the will would not
be admitted for probate. The court ordered probate to proceed
as an intestate proceeding, and the court appointed Michael to
be personal representative of the estate.
Mark filed a motion for new trial or, in the alternative, to
alter or amend the order. Mark argued, inter alia, that the court
erred when it refused to admit exhibit 7 into evidence. After a
hearing, the county court overruled the motion and specifically
rejected Mark’s argument regarding exhibit 7. The court stated
that exhibit 7 did not meet the statutory requirements of a valid
will and that its admission would not assist the court in deter-
mining the issues in this case.
Mark appealed the county court’s July 12, 2022, order to
this court. See In re Estate of Walker, 315 Neb. 510, 997
N.W.2d 595 (2023). On appeal, Mark challenged the county
court’s finding that the will he offered was void due to undue
influence, and he challenged the court’s order for the case to
proceed in intestacy with Michael as personal representative.
Mark also challenged the court’s refusal to admit exhibit 7 into
evidence, and he assigned error to the court’s determinations
that exhibit 7 was inadmissible hearsay and that exhibit 7 was
not relevant and, therefore, was inadmissible.
On appeal, we began our analysis by focusing on Mark’s
assignments of error regarding the admissibility of exhibit 7.
We prefaced our analysis of the exhibit 7 issues by stating:
The questions regarding exhibit 7 revolve around a
proposition long stated in our cases. A prior will, executed
when the testator’s testamentary or mental capacity was
and is unquestioned, and as to which the existence of
undue influence is not charged, and which conforms
substantially as to the results produced to the instrument
contested, may be considered as competent evidence for
the purpose of refuting charges of undue influence or
want of testamentary or mental capacity by showing that
the testator had a constant and abiding scheme for the
distribution of his or her property.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
In re Estate of Walker, 315 Neb. at 515, 997 N.W.2d at 601.
We first addressed the county court’s stated concern about the
“hearsay issue.” We determined that Mark’s stated purpose in
offering exhibit 7 was to show Rita’s “‘intent’” and “‘mind-
set,’” which we determined fit squarely within the hearsay
exception for a statement of a declarant’s then-existing state
of mind. Id. at 519, 997 N.W.2d at 603. We concluded that the
county court erred when it determined that exhibit 7 was inad-
missible hearsay.
We then addressed the county court’s decision to sustain
Michael’s objection to exhibit 7 based on relevance. We ref-
erenced the proposition and precedent set forth above to the
effect that a prior will may be considered competent evidence
for the purpose of refuting charges of undue influence or
want of capacity by showing a constant and abiding scheme.
We acknowledged Michael’s argument that exhibit 7 was not
a duly executed will and, therefore, was not relevant under
our precedent. However, we rejected this argument and held
that “competent evidence of a testator’s constant and abiding
scheme for the distribution of his or her property is not limited
to prior duly executed wills.” Id. at 522, 997 N.W.2d at 605.
We concluded that exhibit 7 was relevant for this precise pur-
pose and therefore was admissible.
Having concluded that exhibit 7 was admissible, we con-
sidered whether the county court’s exclusion of exhibit 7 was
harmless error. We noted that in its order overruling Mark’s
motion for new trial or to alter or amend its previous order, the
county court stated that any error in refusing to admit exhibit
7 was harmless because exhibit 7 did not meet the statutory
requirements of a valid will and did not assist the court in
determining the issues in this case. We stated that the county
court’s language indicated that it believed that exhibit 7 could
not be considered as competent evidence based on the court’s
implicit determination that it was not a duly executed will
and therefore was irrelevant. We further determined that the
court’s language did not demonstrate that it ever considered

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
the weight of exhibit 7. We reasoned that because exhibit 7
was relevant and admissible, the county court was required to
determine the weight of exhibit 7 as evidence to establish tes-
tamentary capacity and to rebut claims of undue influence. We
concluded that the exclusion of exhibit 7 unfairly prejudiced
Mark’s substantial rights.
Because we determined that the county court’s evidentiary
ruling must be reversed and the cause remanded, we did not
consider Mark’s remaining assignments of error. We stated
that we “express no opinion regarding the weight, if any, that
should be given on remand to exhibit 7 regarding testamen-
tary capacity and undue influence.” Id. at 526, 997 N.W.2d at
607. In our conclusion, we reversed the county court’s order
refusing to admit the will offered by Mark into probate, and
we remanded the cause to the county court with directions “to
reconsider the existing record, including exhibit 7, to determine
whether [Mark] met his burden of proving testamentary capac-
ity and whether [Michael] met his burden of proving undue
influence.” Id.
On remand, the county court held a hearing pursuant
to our mandate in which it stated that, in compliance with
our instructions, it received exhibit 7 into evidence. At the
hearing, Mark requested that the court allow testimony by
an additional witness, Mary Williamette Preston, who was
Rita’s sister. The county court refused to allow testimony by
Preston. The court stated that this court’s direction was clear
that the county court was to admit exhibit 7 and to consider
it with the existing record. The court reasoned that it was
not permissible under our mandate to admit new evidence,
including Preston’s testimony. The court allowed Mark to
make an offer of proof regarding Preston’s testimony, and at a
later hearing, the court received an affidavit of Preston as an
offer of proof. In the affidavit, Preston generally stated that
she had been close with Rita, that she knew that Mark had
taken care of Rita in her final years, and that Rita had told
her more than once that she intended for Mark to receive her

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
estate and to “‘get everything.’” Preston also generally stated
in the affidavit that Rita made all her own decisions up until
her death and that in her final weeks, Rita was able to make
decisions and was “clear in the head.”
The county court entered an order on August 15, 2024,
in which it again determined that the will that Mark offered
should not be admitted for probate. In its order, the county
court generally repeated the recounting of evidence from the
bench trial that it had set forth in its July 12, 2022, order.
The county court found in the August 2024 order that Mark
failed to meet his burden regarding Rita’s capacity “even when
considering the contents of Exhibit 7.” The court conceded that
the exhibit showed a constant and abiding scheme for the dis-
tribution of Rita’s estate and that the document was signed by
Rita and was notarized. The court found that exhibit 7 reflected
Rita’s state of mind in 2016. However, the court stated exhibit
7 was not the will being contested in this matter and evidence
regarding Rita’s capacity in 2016 was limited. The court turned
its focus to evidence of Rita’s capacity when she signed the
will in September 2021, and the court repeated the evidence
relevant to Rita’s capacity that it had set forth in the July 12,
2022, order. The court concluded its analysis of capacity by
again acknowledging that exhibit 7 showed a constant and
abiding scheme for distribution of Rita’s estate, but the court
stated that “given the facts and circumstances specific to the
signing of the Will on September 15, 2021,” it gave exhibit 7
“little or no weight in making its decision.”
The court then addressed the issue of undue influence. The
court again found by a preponderance of the evidence that Rita
was subject to undue influence, that Mark had the opportunity
to exercise such influence on Rita, that there was a disposition
to exercise such influence, and that the result was clearly the
effect of such influence. The court repeated much the same
evidence in support of these findings that it had set forth in its
July 12, 2022, order.

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320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
The court stated in conclusion that it gave “little or no
weight to Exhibit 7 when determining if [Rita] had capacity
on September 15, 2021, and if the Will signed on September
15, 2021, was the product of undue influence.” The court also
stated that it would not consider the Preston affidavit because
it was outside of “‘the existing record.’” The court ordered
that the will would not be admitted for probate and that the
case would proceed in intestacy, and it appointed Michael as
personal representative.
Mark appeals the county court’s August 15, 2024, order.
ASSIGNMENTS OF ERROR
Mark claims generally that the county court erred when it
ordered the probate of Rita’s estate to proceed in intestacy with
Michael as personal representative. He specifically claims that
the county court erred (1) when it failed to consider the Preston
affidavit or to allow Preston to testify, (2) when it concluded
that the will he offered for probate was void due to failure of
testamentary capacity, and (3) when it concluded that the will
was the product of undue influence.
STANDARDS OF REVIEW
[1] The construction of a mandate issued by an appellate
court presents a question of law on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. In re Masek Family Trust, 318
Neb. 268, 15 N.W.3d 379 (2025).
[2,3] Appeals of matters arising under the Nebraska Probate
Code are reviewed for error on the record. In re Estate
of Walker, 315 Neb. 510, 997 N.W.2d 595 (2023). When
reviewing a judgment for errors on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. An appellate court, in reviewing a probate
court judgment for errors appearing on the record, will not

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
substitute its factual findings for those of the probate court
where competent evidence supports those findings. Id.
ANALYSIS
County Court Properly Excluded Preston’s Testimony.
Mark first claims that the county court erred when it failed
to consider the Preston affidavit or to allow Preston to testify.
We agree with the county court’s determination that admitting
new evidence, including Preston’s testimony, was outside the
scope of our mandate on remand, and we therefore conclude
that the county court did not err in this respect.
[4-6] In appellate procedure, a “remand” is an appellate
court’s order returning a proceeding to the court from which
the appeal originated for further action in accordance with the
remanding order. In re Masek Family Trust, supra. When a
lower court is given specific instructions on remand, it must
comply with the specific instructions and has no discretion to
deviate from the mandate. Id. When the judgment of a trial
court is reversed on appeal and the cause remanded without
specific instructions, it is the duty of the trial court to exercise
its discretion in the further disposition of the case. Id.
In In re Estate of Walker, supra, we determined that the
county court’s evidentiary ruling excluding exhibit 7 must
be reversed and that the cause must be remanded based on
that reversal. We did not consider Mark’s remaining assign-
ments of error regarding the propriety of the county court’s
rulings that the will offered by Mark was not to be admitted
and that the probate of Rita’s estate should proceed in intes-
tacy with Michael as personal representative. We “express[ed]
no opinion regarding the weight, if any, that should be given
on remand to exhibit 7 regarding testamentary capacity and
undue influence.” Id. at 526, 997 N.W.2d at 607. In our
conclusion, we remanded the cause to the county court with
directions “to reconsider the existing record, including exhibit
7, to determine whether [Mark] met his burden of proving

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
testamentary capacity and whether [Michael] met his burden
of proving undue influence.” Id.
In ordering remand to the county court, we did not mandate
a specific weight to be given to exhibit 7 or a specific judg-
ment to be entered. Instead, it was left to the county court to
make those determinations. However, we gave the specific
instruction that in making those determinations, the county
court was to “reconsider the existing record, including exhibit
7.” Id. This instruction required the county court to consider
only the evidence that was already in the existing record, with
the sole exception being the addition of exhibit 7 as evidence
to be considered.
Because the county court was given specific instruction on
remand, it was required to comply with the specific instruction,
and it had no discretion to deviate from the mandate by admit-
ting any additional evidence other than exhibit 7. We therefore
conclude that the county court did not err when it did not allow
Preston to testify and when it did not admit the Preston affida-
vit as evidence to be considered when it made its determina-
tions and orders. We reject this assignment of error.
County Court Did Not Err in Its Determinations
Regarding Testamentary Capacity
and Undue Influence.
Mark further claims that the county court erred when it
concluded that the will he offered for probate was void due
to failure of testamentary capacity and due to undue influence
and when it therefore ordered the probate of Rita’s estate to
proceed in intestacy with Michael as personal representative.
Mark’s argument focuses on the county court’s finding that he
did not meet his burden to prove Rita’s testamentary capacity
and the county court’s finding that the will was the product of
undue influence. Based on our review of the record, we find no
error on the record relating to these findings.

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
Regarding the issues of testamentary capacity and undue
influence in a contested case, Neb. Rev. Stat. § 30-2431
(Reissue 2016) provides in part:
Proponents of a will have the burden of establishing
prima facie proof of due execution, death, testamentary
capacity, and venue. Contestants of a will have the burden
of establishing undue influence, fraud, duress, mistake or
revocation. Parties have the ultimate burden of persuasion
as to matters with respect to which they have the initial
burden of proof.
In this case, Mark, as the proponent of the will, had the
burden of establishing prima facie proof of Rita’s testamentary
capacity, while Michael, as a contestant of the will, had the
burden of establishing undue influence. Each had the ultimate
burden of persuasion as to the respective issues.
The county court concluded that Mark did not meet his
burden to show that Rita had testamentary capacity when she
signed the will on September 15, 2021, and it concluded that
Michael showed by a preponderance of the evidence that Rita
was subject to undue influence. We review these conclusions
for error on the record, see In re Estate of Walker, 315 Neb.
510, 997 N.W.2d 595 (2023), and in that regard, we determine
that both conclusions conform to the law because the county
court applied the correct standards of law as set forth below.
We further determine that neither conclusion was arbitrary,
capricious, or unreasonable.
In addition, we must determine whether the county court’s
findings regarding testamentary capacity and undue influence
are supported by competent evidence. As we stated in In re
Estate of Walker, “[O]ur standard of review gives considerable
deference to the county court’s factual findings.” 315 Neb. at
525, 997 N.W.2d at 606. In reviewing the county court’s judg-
ment in this probate matter for errors appearing on the record,
we will not substitute our factual findings for those of the
county court where competent evidence supports the county
court’s findings. See In re Estate of Walker, supra.

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
Testamentary Capacity.
[7] We first review standards of law regarding testamentary
capacity and then consider whether competent evidence sup-
ported the county court’s finding regarding testamentary capac-
ity. While a self-proved will establishes prima facie proof of
testamentary capacity, In re Estate of Wagner, 246 Neb. 625,
522 N.W.2d 159 (1994), the county court in this case found
that the will offered by Mark was not self-proved because it
did not meet statutory requirements set forth in Neb. Rev. Stat.
§ 30-2329 (Reissue 2016). Mark does not challenge the county
court’s finding that the will was not self-proved. Instead, he
contends that he provided a prima facie case of testamentary
capacity and that Michael failed to present evidence that Rita
lacked testamentary capacity.
[8,9] One possesses testamentary capacity if the testator
understands the nature of the testator’s act in making a will
or codicil thereto, knows the extent and character of the testa-
tor’s property, knows and understands the proposed disposition
of that property, and knows the natural objects of the testa-
tor’s bounty. See In re Estate of Peterson, 232 Neb. 105, 439
N.W.2d 516 (1989). Testamentary capacity is tested by the
state of the testator’s mind at the time the will or codicil is
executed. Id.
Considering testamentary capacity, the county court noted
evidence that on September 15, 2021, Rita was dying from
pancreatic cancer, was experiencing pain, and was taking pain
medication, and that she was taken to the hospital with a seri-
ous medical issue 2 days later. The court also noted testimony
by Michael that in the days before signing the will, Rita was
“sleepy and unable to wake up because of pain meds” and
“when talking she would lose her train of thought and get
frustrated.” But more germane to its conclusion that Mark
failed to prove Rita’s testamentary capacity, the court char-
acterized Mark’s evidence as “limited” and stated that he had
not provided “evidence that [Rita] knew the nature of the acts

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IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
she was making in the Will[,] the nature and extent of her
property, or proposed disposition of her property.”
In arguing that he provided a prima facie case of testamen-
tary capacity, Mark mainly relies on his own testimony that
Rita was making her own decisions and directing her own
affairs, that the specific medication she was taking allowed her
to remain clear, and that she continued to socialize with family
and neighbors. Mark also cites testimony by Kaspar that Rita
appeared to sign the will voluntarily, that she read the will
before she signed it, and that she did not appear to be confused.
Mark also notes the similarity in the dispositional terms of
exhibit 7 to the will he offered for probate.
We determine that competent evidence supports the county
court’s finding that Mark did not show that Rita had testamen-
tary capacity on September 15, 2021. Because the will was not
self-proved, Mark needed to present other evidence to provide
a prima facie case of testamentary capacity. As noted above,
Mark cites evidence regarding Rita’s general capacity to make
decisions and think clearly. However, the county court prop-
erly focused on the factors specific to testamentary capacity,
such as understanding the nature of Rita’s act in making a will,
knowing the extent and character of her property, and knowing
and understanding the proposed disposition of her property,
and the court found that Mark did not provide sufficient evi-
dence of those specific factors.
On the other hand, the court noted evidence provided by
Michael regarding Rita’s physical and mental state at the time
the will was executed. Whether such evidence would have
been sufficient to overcome a prima facie case of testamentary
capacity if Mark had made such a showing, Michael’s evidence
provided context and was relevant to the county court’s deter-
mination regarding Rita’s testamentary capacity. Addressing
exhibit 7, the county court acknowledged that it was evidence
of a constant and abiding scheme for distribution of Rita’s
property, but the court focused on the evidence regarding
Rita’s testamentary capacity in 2021 and did not find evidence

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320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
of Rita’s signing of a document in 2016 to be controlling as
to her capacity in 2021. Whether we would have given more
weight to exhibit 7 or would have made different findings
regarding testamentary capacity, we cannot say that there was
not competent evidence to support the county court’s finding
that Rita lacked testamentary capacity.
Undue Influence.
[10,11] We next review standards of law regarding undue
influence and then consider whether competent evidence sup-
ported the county court’s finding that the will was the product
of undue influence. Undue influence sufficient to defeat a will
is manipulation that destroys the testator’s free agency and
substitutes another’s purpose for the testator’s. In re Estate of
Koetter, 312 Neb. 549, 980 N.W.2d 376 (2022). To show undue
influence, a will contestant must prove the following elements
by a preponderance of the evidence: (1) The testator was sub-
ject to, or susceptible to, undue influence; (2) there was an
opportunity to exercise such influence; (3) there was a disposi-
tion to exercise such influence; and (4) the result was clearly
the effect of such influence. Id.
[12,13] Because undue influence is often difficult to prove
with direct evidence, it may be reasonably inferred from the
facts and circumstances surrounding the actor: his or her life,
character, and mental condition. Id. Mere suspicion, surmise,
or conjecture does not warrant a finding of undue influence;
instead, there must be a solid foundation of established facts on
which to rest the inference of its existence. Id.
Considering undue influence, the county court noted evi-
dence of Rita’s physical and mental condition on September
15, 2021, the date the will was signed, which was 11 days
prior to her death, as well as evidence that Mark prepared the
will and signed it as a witness. Although the court acknowl-
edged that Kaspar notarized the will and witnessed Rita’s
reading and signing the will, it noted that Kaspar did not
question Rita regarding the contents of the will. The court

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
further noted evidence that although Rita’s other sons made
multiple visits to Rita around the time the will was signed,
Mark did not have any of the other sons serve as a witness to
the execution of the will. The court found credible the testi-
mony of Royal to the effect that Mark had threatened Rita to
do what he told her. The court stated that it considered exhibit
7 but gave little or no weight to the exhibit when determining
whether the will was the product of undue influence. Based on
the evidence of facts and circumstances surrounding the draft-
ing and execution of the will, the court found that Rita was
subject to undue influence, that Mark had the opportunity to
exercise such influence on Rita, that Mark had the disposition
to exercise such influence, and that the result was clearly the
effect of such influence.
On appeal, Mark contends that Michael did not meet his
burden to establish undue influence. Mark argues that although
the evidence might show he had an opportunity to exert undue
influence, there was no evidence to show that he was disposed
to exert undue influence or that the will was clearly the result
of undue influence. Mark also argues that the county court
inappropriately shifted the burden to him to disprove undue
influence, and he references in his appellate brief the portion
of the county court’s order that states “The Court, even con-
sidering exhibit 7, is not satisfied the Will was not the result
of undue influence.” Mark further argues that the county court
abused its discretion when it afforded exhibit 7 little to no
weight, despite acknowledging that it showed a constant and
abiding scheme for the distribution of Rita’s property.
We determine that competent evidence supports the county
court’s 	finding 	that 	Michael 	established 	undue 	influence.
Because undue influence is often difficult to prove with direct
evidence, it may be reasonably inferred from the facts and
circumstances surrounding the actor: his or her life, charac-
ter, and mental condition. In re Estate of Koetter, 312 Neb.
549, 980 N.W.2d 376 (2022). Based on evidence concerning
Rita’s condition and Mark’s relationship with Rita at the time

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
the will was signed, the county court could reasonably infer
that Rita was subject to undue influence and that Mark had
an opportunity to exercise such influence. Regarding whether
Mark had a disposition to exercise such influence, in addition
to the evidence of Rita’s condition and Mark’s relationship at
the time Rita signed the will, the county court noted Royal’s
testimony that Mark had threatened Rita. The court stated that
it found Royal’s testimony to be credible and reliable, and
it specifically stated that although the testimony involved an
incident that occurred a year before the will was signed, the
evidence was relevant to Mark’s disposition to exercise influ-
ence. The county court also noted facts and circumstances sur-
rounding the signing of the will, including that Mark did not
have any of Rita’s other sons serve as a witness to the execu-
tion of the will, in order to support its finding that the will was
the product of undue influence. In this regard, we note that as
the fact finder, it was the county court’s role to determine the
credibility of Royal and the other witnesses, including Mark
and Michael. The court observed Mark as a witness, and the
court’s determination of Mark’s credibility appears to have
factored into its finding of undue influence.
Contrary to Mark’s assertion, we do not read the county
court’s order as shifting the burden to Mark to disprove undue
influence. Despite the isolated sentence highlighted by Mark
in his appellate brief, the county court was clear in its order
that as the party contesting the will, Michael had the burden of
proof and the ultimate burden of persuasion regarding undue
influence. We also reject Mark’s argument that the county
court abused its discretion when it gave little or no weight to
exhibit 7. As the fact finder, the county court was to deter-
mine the weight to give to evidence, and the court emphasized
that in considering both testamentary capacity and undue
influence, its focus was on September 15, 2021, when Rita
signed the will. Whether we would have given more weight
to exhibit 7 or would have made a different finding regarding
undue influence, we cannot say that there was not competent

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320 Nebraska Reports
IN RE ESTATE OF WALKER
Cite as 320 Neb. 139
evidence to support the county court’s finding that the will
was the product of undue influence.
CONCLUSION
We conclude that the county court did not err when it did
not allow Preston to testify and when it did not consider the
Preston affidavit as evidence relevant to testamentary capac-
ity or undue influence. In our review of the county court’s
determinations that Rita lacked testamentary capacity and
that the will was the product of undue influence for error on
the record, we conclude that such determinations conformed
to the law, were supported by competent evidence, and were
neither arbitrary, capricious, nor unreasonable. We therefore
affirm the county court’s order.
Affirmed.