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IN RE ESTATE OF TIEDEMAN

Cite as 25 Neb. App. 722

In re Estate of Brian L. Tiedeman,

Dustin Lovorn, Special Administrator 

of Brian L. Tiedeman, deceased, app

cross-appellee, v. Su Ann Brethouwer, ap

and cross-appellant, and David L. Clark, 

Sheila G. Casares, Copersonal Represent

of the Estate of Jody Clark, deceased

appellees and cross-appellan

___ N.W.2d ___

Filed April 10, 2018. Nos. A-16-887, A-16-933.

1. Decedents’ Estates: Wills: Trusts: Judgments: Appeal and Error.

The interpretation of the words in a will or a trust presents a question of 

law. When reviewing questions of law in a probate matter, an appellate 

court reaches a conclusion independent of the determination reached by 

the court below.

2. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing cross-motions for summary judgment, an appellate court acquires 

jurisdiction over both motions and may determine the controversy that 

is the subject of those motions; an appellate court may also specify the 

issues as to which questions of fact remain and direct further proceedings as the court deems necessary.

3. Wills: Intent: Words and Phrases. Material provisions of a will are 

defined as those provisions which express donative and testamentary intent.

4. ____: ____: ____. Donative intent relates to words reflecting specific 

bequests to particular beneficiaries, and testamentary intent concerns 

whether the document was intended to be a will.

5. Wills: Words and Phrases. No particular words or conventional forms 

of expression are necessary to enable one to make an effective testamentary disposition of his or her property.

6. ____: ____. When construing the meaning of words in a document, 

the process requires determining the correct sense, real meaning, or 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/01/2018 01:09 AM CDT
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proper explanation of an ambiguous term, phrase, or provision in a written instrument.

7. ____. ____. Ambiguity exists in an instrument, including a will, when a 

word, phrase, or provision in the instrument has, or is susceptible of, at 

least two reasonable interpretations or meanings.

8. Parol Evidence: Wills: Intent. Parol evidence is inadmissible to determine the intent of a testator as expressed in his or her will, unless there 

is a latent ambiguity therein which makes his or her intention obscure 

or uncertain.

9. Wills: Words and Phrases. A patent ambiguity is an ambiguity appearing on the face of the instrument, whereas a latent ambiguity is one 

outside the will.

10. Wills: Intent. A patent ambiguity must be removed by interpretation 

according to legal principles, and the intention of the testator must be 

found in the will.

11. Wills. Patent ambiguities are resolved from within the four corners of 

the will and without consideration of extrinsic evidence.

12. Wills: Words and Phrases. Where in a will there is such a patent ambiguity resulting from the use of the words and nothing appears within its 

four corners to resolve or clarify the ambiguity, the words must be given 

their generally accepted literal and grammatical meaning.

13. Wills. A latent ambiguity exists when the testator’s words are susceptible of more than one meaning, and the uncertainty arises not upon the 

words of the will as looked at themselves, but upon those words when 

applied to the object or subject which they describe.

14. ____. A latent ambiguity arises when a beneficiary is erroneously 

described, where no such beneficiary has ever existed as the one so 

described, or when two or more persons or organizations answer the 

description imperfectly.

15. Wills: Evidence. Extrinsic evidence is admissible both to disclose and 

to remove the latent ambiguity of the will.

16. ____: ____. A patent ambiguity is a case where the same word in a will 

has two meanings discernible from the face of the will itself, whereas a 

latent ambiguity is a case where the word has two meanings, but only 

when extrinsic evidence is brought to bear.

17. Wills. The law will not suffer an heir to be disinherited upon conjecture.

18. Wills: Intent. Although a testator may disinherit an heir, the law will 

execute that intention only when it is put in a clear and unambiguous shape.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affi
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IN RE ESTATE OF TIEDEMAN

Cite as 25 Neb. App. 722

James L. Haszard, of McHenry, Haszard, Roth, Hupp, 

Burkholder & Blomenberg, P.C., L.L.O., for appellant.

J.L. Spray and Ryan K. McIntosh, of Mattson Ricketts Law 

Firm, for appellee Sue Ann Brethouwer.

Dale D. Dahlin, P.C., L.L.O., for appellees David L. Clark, 

Jr., and Sheila G. Casares.

Moore, Chief Judge, and Bishop and Arterburn, Ju

Bishop, Judg

INTRODUCTION

Following Brian L. Tiedeman’s death, his nephew Dustin 

Lovorn filed a petition to have Tiedeman’s purported holographic will admitted to probate in the county court for 

Lancaster County. Sue Ann Brethouwer and Jody Clark, two 

of Tiedeman’s sisters, filed separate objections to Lovorn’s 

petition, and the case was transferred to the district court for 

Lancaster County. The district court granted partial summary 

judgment in favor of Lovorn as to the document in question 

being written by Tiedeman, but granted summary judgment in 

favor of Brethouwer and Clark as to the document not being 

made with the requisite testamentary intent to be a valid holographic will. Lovorn appeals the district court’s decision, and 

Brethouwer and Clark cross-appeal. We affirm.

BACKGROUND

We initially note that while this appeal was pending, a suggestion of death was filed notifying the court that Clark died 

on December 27, 2017. On January 19, 2018, a stipulation 

and joint motion for revivor was filed by the parties pursuant 

to Neb. Rev. Stat. § 25-1401 et seq. (Reissue 2016), indicating that David L. Clark, Jr., and Sheila G. Casares (son and 

daughter of Clark) were appointed and qualified as copersonal 

representatives of Clark’s estate. The parties agreed the action 

and interests of Clark should proceed in the names of her 

copersonal representatives. The stipulation and joint motion 
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for revivor was sustained by order of this court entered on 

February 1, 2018; however, this opinion will continue to refer 

to Clark by her name.

Tiedeman died on February 24, 2015. His estate is comprised primarily of a farm operation and has a gross value of 

approximately $4 million. Before his death, Tiedeman managed the farm operation with Lovorn. Tiedeman’s only heirs 

at law were his three sisters: Brethouwer, Clark, and Lovorn’s 

mother. Lovorn filed a petition in county court on March 4 to 

have the purported holographic will admitted into formal probate. We set forth the handwritten document below to reflect, 

as best possible, its use of spacing and capitalization, and 

its spelling:

5-22-14

I Brian L Tiedeman want all my

All Property to Dustin Lovorn

I here by attend to change my will.

[Signature]

The county court subsequently appointed Lovorn special 

administrator of Tiedeman’s estate in order to manage the 

farming operation to prevent waste.

Brethouwer filed an objection to the petition for formal 

probate of the purported holographic will and transferred the 

action to the district court. Her objection alleged as follows: 

(1) The purported will does not express testamentary intent, 

(2) Tiedeman did not have testamentary capacity at the time 

of the purported will’s execution, (3) Tiedeman lacked mental capacity to execute a will, (4) Tiedeman was under duress 

from Lovorn when the purported will was created, and (5) the 

purported will is the product of undue influence exercised by 

Lovorn over Tiedeman. Clark filed a separate objection, alleging the document in question (1) was not executed properly 

under Nebraska statutes governing the execution of a will, (2) 

is not a valid holographic will, (3) does not express testamentary intent, (4) is not in Tiedeman’s handwriting, (5) was not 

made with testamentary intent at the time of its creation, (6) is 
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the product of undue influence by Lovorn over Tiedeman, (7) 

was created while Tiedeman was under duress from Lovorn, 

(8) was created at a time when Tiedeman did not have testamentary capacity, (9) resulted from fraud by Lovorn, and (10) 

was not intended to be a will and was the result of mistake by 

Tiedeman. Lovorn filed separate answers to both objections 

denying all of the allegations by both Brethouwer and Clark 

listed above.

Brethouwer then filed a motion for summary judgment, 

requesting judgment as a matter of law that the purported will 

“did not express sufficient testamentary intent as required 

by Neb. Rev. Stat. § 30-2328 (Reissue 2008).” Clark subsequently joined Brethouwer’s motion for summary judgment. 

Lovorn filed a motion for partial summary judgment, requesting judgment as a matter of law that (1) the purported will 

was in Tiedeman’s handwriting and (2) the purported will 

“expressed sufficient testamentary intent as required by Neb. 

Rev. Stat. §30-2328.”

At the hearing on the motions for summary judgment, 

Lovorn offered the affidavit of attorney Patrick D. Timmer, 

in which Timmer explained the circumstances of the creation 

of the purported will. Counsel for Brethouwer and Clark 

made objections to the affidavit, including arguments related 

to extrinsic and parol evidence. The court took the offer of the 

affidavit under advisement. And although counsel for Clark 

challenged the accuracy of the affidavit based on alleged prior 

inconsistent reporting by Timmer as to whether the purported 

will was drafted by Tiedeman at home or at Timmer’s office, 

this was only raised by argument and not through any evidence 

submitted at the hearing.

The district court issued an order on August 15, 2016. In 

that order, the court sustained objections to Timmer’s affidavit 

as to paragraphs 10, 12, and 13, but received the remainder of 

the affidavit. The court observed that parol evidence was not 

admissible to determine the intent of a testator as expressed in 

his or her will unless there is a latent ambiguity therein which 
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makes his or her intention obscure or uncertain. The court further observed that with regard to the purported will in this case, 

“it is apparent that no latent ambiguity exists.” Concluding it 

could not consider extrinsic evidence to determine Tiedeman’s 

testamentary intent, the court sustained objections to the three 

paragraphs noted above.

The three excluded paragraphs of Timmer’s affidavit 

averred: Tiedeman told Timmer that he wanted to change his 

will to give all of his property to Lovorn, but that Timmer did 

not have time to discuss a new will with him; Timmer handed 

Tiedeman a piece of paper and told him to write, “‘I, Brian L. 

Tiedeman, want all my property to go to Dustin Lovorn and I 

hereby intend to change my will’”; and Timmer told Tiedeman 

“to write ‘I hereby intend to change my will’ to show his intention as to the purpose of the document.”

In relevant part, the admitted portion of Timmer’s affidavit 

averred: Timmer, an attorney, had worked with Tiedeman “on 

a number of occasions” with regard to the administration of 

Tiedeman’s father’s trust (Tiedeman was the trustee); Timmer 

was scheduled to meet with Tiedeman on May 22, 2014, for 

an allotted 45 minutes, and at that time, Tiedeman signed trust 

administration documents and powers of attorney appointing 

Lovorn as Tiedeman’s attorney in fact; during this meeting, 

Timmer told Tiedeman to schedule another appointment to 

discuss a new will, but he explained to Tiedeman that in the 

meantime, he could “do what is called a holographic will” 

and told him he could create a document in his own handwriting that is signed and dated; Timmer personally witnessed 

Tiedeman writing on paper given to him and signing the 

document, and this is the document that has been offered for 

probate in Tiedeman’s estate; Tiedeman did not leave the conference room during the course of the meeting and “the writing 

of the will”; Lovorn did not accompany Tiedeman to this meeting, nor did Lovorn speak to Timmer about “the will” until 

after Tiedeman’s death; Tiedeman left “the holographic will” 

with Timmer, which he placed in Tiedeman’s estate planning 
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file; Tiedeman told Timmer that Lovorn was already a joint 

owner on some of Tiedeman’s accounts or that he was planning to add him to accounts; and Timmer stated that he was 

aware on May 22 that Tiedeman had an existing will prepared 

by another attorney, but that Timmer did not know the whereabouts of that will.

With that evidence, the district court first considered whether 

the purported holographic will was in Tiedeman’s handwriting. 

The court stated that Timmer’s affidavit “clearly shows that 

Timmer witnessed [Tiedeman] write and sign the document, 

he then left the document with Timmer, who placed it in 

[Tiedeman’s] estate planning file.” Since the court found there 

were no genuine issues of material fact regarding this issue, it 

granted partial summary judgment in favor of Lovorn, finding that the “purported holographic will is in the handwriting 

of [Tiedeman].”

The next issue considered by the district court was whether 

the purported holographic will expressed sufficient testamentary intent. Based on the evidence admitted, the court granted 

summary judgment in favor of Brethouwer and Clark, finding 

that “the writing fails to express sufficient testamentary and 

donative intent.” It was the court’s opinion that the words 

expressed Tiedeman’s intent to create a new will at a future 

date. In sum, the court stated that “the purported holographic 

will . . . does not contain sufficient material provisions expressing testamentary and donative intent and cannot be legally 

recognized as a valid holographic will.”

The district court ordered the matter transferred back to 

the county court “to carry the final decision to judgment and 

execution.”

Lovorn filed a motion for the district court to set a supersedeas bond pursuant to Neb. Rev. Stat. § 30-1601 (Reissue 

2016). The court entered an order stating “a supersedeas bond 

is required by . . . Lovorn to appeal this matter and the amount 

of said bond is $400,000.00.” Lovorn then filed his appeal 

from the district court’s order granting summary judgment 
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in favor of Brethouwer and Clark; it was docketed as case 

No. A-16-887.

Lovorn also filed a motion with the district court to reconsider the amount of the supersedeas bond and to extend time 

to file the bond. Lovorn’s motion included an affidavit from 

the president of a bond company, which affidavit indicated 

the bond company was requiring $400,000 in collateral, plus 

a $6,000 fee per year, for a $400,000 bond. Lovorn claimed 

that he did not have sufficient assets to provide such collateral and that the primary asset in the estate is farm ground, 

which cannot be destroyed or removed, so a lesser bond 

would protect the beneficiaries. Lovorn’s affidavit stated he 

owned vehicles and miscellaneous assets totaling $68,753, 

plus a one-half interest in the farm operation’s machinery 

($152,440) secured by a bank and for which ownership is 

“likely disputed.”

The district court overruled Lovorn’s motion for reconsideration and for an extension of time to file a bond. Lovorn 

then filed a motion with this court to review the district 

court’s supersedeas bond amount and for leave to file his bond 

out of time in response to the court’s decision to overrule his 

motion for reconsideration; it was filed as a separate appeal 

(case No. A-16-933). Brethouwer and Clark filed separate 

motions for summary disposition with this court, both arguing we lacked jurisdiction to hear Lovorn’s appeal based on 

his failure to post the $400,000 supersedeas bond set by the 

district court. Those motions were overruled, and we entered 

an order setting the bond amount at $100,000, which Lovorn 

subsequently posted.

The appeals in cases Nos. A-16-887 and A-16-933 have 

been consolidated for briefing and disposition.

Although not relevant to this appeal, we note that following the district court’s order regarding summary judgment, 

Clark filed a petition in the county court to have a purported 

lost will admitted to formal probate and nominated herself as 

personal representative. The petition included the purported 
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copy of a lost will which was unsigned by Tiedeman. Lovorn 

and his mother both filed objections to Clark’s petition to have 

the lost will admitted to probate based on Lovorn’s pending 

appeal. The county court scheduled a hearing date; however, 

our record does not show any further information.

ASSIGNMENTS OF ERROR

Lovorn assigns nine errors, which we consolidate and 

restate as follows: The district court erred (1) in finding 

Brethouwer and Clark were entitled to judgment as a matter 

of law that the purported holographic will did not contain sufficient testamentary intent, (2) in failing to consider extrinsic 

evidence in determining the testamentary intent of the purported will, and (3) in setting the supersedeas bond in the 

amount of $400,000.

Brethouwer assigns on cross-appeal that the district court 

erred by receiving any part of Timmer’s affidavit into evidence.

Clark assigns on cross-appeal that the district court erred 

(1) by receiving any part of Timmer’s affidavit into evidence 

and (2) by finding the purported will was in Tiedeman’s handwriting. She also assigns error to this court for reducing the 

amount of the supersedeas bond.

STANDARD OF REVIEW

[1] The interpretation of the words in a will or a trust 

presents a question of law. When reviewing questions of 

law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court 

below. In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 

536 (2017).

[2] When reviewing cross-motions for summary judgment, 

an appellate court acquires jurisdiction over both motions and 

may determine the controversy that is the subject of those 

motions; an appellate court may also specify the issues as to 

which questions of fact remain and direct further proceedings 

as the court deems necessary. Johnson v. Nelson, 290 Neb. 

703, 861 N.W.2d 705 (2015).
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Cite as 25 Neb. App. 722

ANALYSIS

Not Valid Holographic Will on Its Face.

The district court concluded that the document offered as 

Tiedeman’s holographic will was in Tiedeman’s handwriting, 

but that the words “I Brian L Tiedeman want all my All 

Property to Dustin Lovorn I here by attend to change my will” 

did not “express sufficient testamentary and donative intent” to 

qualify as a holographic will. Rather, the court concluded that 

the words expressed only “Tiedeman’s intent to create a new 

will at a future date.”

Like the district court, we begin our analysis by setting forth 

the statutory requirements for a holographic will. Pursuant to 

Neb. Rev. Stat. § 30-2328 (Reissue 2016):

An instrument which purports to be testamentary in 

nature but does not comply with section 30-2327 is valid 

as a holographic will, whether or not witnessed, if the 

signature, the material provisions, and an indication of 

the date of signing are in the handwriting of the testator 

and, in the absence of such indication of date, if such 

instrument is the only such instrument or contains no 

inconsistency with any like instrument or if such date is 

determinable from the contents of such instrument, from 

extrinsic circumstances, or from any other evidence.

[3,4] The district court found the purported holographic 

will did “not contain sufficient material provisions,” which 

§ 30-2328, set forth above, clearly requires. Material provisions of a will are defined as those provisions which express 

donative and testamentary intent. See In re Estate of Foxley, 

254 Neb. 204, 575 N.W.2d 150 (1998). The district court cited 

to Simonelli v. Chiarolanza, 355 N.J. Super. 380, 810 A.2d 

604 (2002), which also considered a purported holographic 

will, to explain that testamentary intent concerns whether 

the document was intended to be a will and donative intent 

relates to words reflecting specific bequests to particular 

beneficiaries. In Simonelli, the document at issue stated, “‘In 

case of death-goes to Lisa Simonelli.’” 355 N.J. Super. at 
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384, 810 A.2d at 606. The New Jersey court stated that its 

governing statute for a holographic will required “‘material 

provisions [to be] in the handwriting of the testator,’” id. at 

385, 810 A.2d at 607, and concluded that the writing at issue 

was devoid of such material provisions and therefore failed 

to meet the statutory requirements of a holographic will. We 

also note the New Jersey court’s reference to In re Estate 

of Foxley, supra, for its statement, “Such words constitute 

material provisions because they are the essence of any will.” 

Simonelli v. Chiarolanza, 355 N.J. Super. at 388, 810 A.2d at 

608. In summary, we agree that material provisions, meaning 

words which express donative and testamentary intent, are the 

essence of any will. Donative intent relates to words reflecting 

specific bequests to particular beneficiaries, and testamentary 

intent concerns whether the document was intended to be a 

will. See Simonelli v. Chiarolanza, supra. See, also, In re 

Estate of Foxley, supra.

The district court in the present matter, like the New Jersey 

court, concluded that the writing at issue failed to “contain sufficient material provisions expressing testamentary and donative intent and cannot be legally recognized as a valid holographic will.” It found that the words “I Brian L Tiedeman 

want all my All property to Dustin Lovorn” failed to contain 

an operative verb to express a specific bequest and that the 

word “to” by itself does not have “present [or] future meaning.” However, Lovorn asserts those particular words can only 

be understood as a specific bequest, because taken together, 

the words describe who the beneficiary is and what property 

is being devised. He concedes an “additional operative verb 

would have made the document more clear,” but asserts “the 

document as a whole is sufficient to show Tiedeman’s testamentary intent.” Brief for appellant at 11. However, even if 

this court were to agree with Lovorn and find the writing was 

sufficient to establish donative intent, the writing still fails as 

a valid holographic will because of the lack of testamentary 

intent, which we discuss next.
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The district court also considered the words “I here by 

attend to change my will” and stated that “even when read 

as ‘intend’ to change my will,” the words do not “sufficiently 

evidence intent that the document is [Tiedeman’s] final will, 

revoking all prior wills with the intention to dispose of his 

property upon his death.” The court further stated, “[T]hese 

words express Tiedeman’s intent to create a new will at a 

future date and not that this expression intended the creation 

of a final will.”

[5,6] No particular words or conventional forms of expression are necessary to enable one to make an effective testamentary disposition of his or her property. Gretchen Swanson 

Family Foundation, Inc. v. Johnson, 193 Neb. 641, 228 N.W.2d 

608 (1975). However, when construing the meaning of words 

in a document, the process requires determining the correct 

sense, real meaning, or proper explanation of an ambiguous 

term, phrase, or provision in a written instrument. See In 

re Estate of Matthews, 13 Neb. App. 812, 702 N.W.2d 821 

(2005). We find no fault with the manner in which the district 

court examined and interpreted the words contained in the purported holographic will.

However, Lovorn argues the district court ignored the legal 

definition of the word “hereby” when determining whether 

there was present or future intent. He points to other jurisdictions’ definitions, as well as the legal definition of “hereby” as 

either “[b]y this document” or “by these very words.” Black’s 

Law Dictionary 842 (10th ed. 2014). Lovorn argues that using 

one of these definitions would change Tiedeman’s words in 

the document to “‘I [by this very document] attend to change 

my will.’” Brief for appellant at 13. Lovorn asserts reading the 

words in this way requires the statement to be understood as a 

present intent to change his will.

Clark contends the use of the word “hereby” in the writing is inconclusive because it is not coupled with an operative 

verb, which prevents it from adding present intent. Brethouwer 

puts forth the same arguments, finding the lack of an operative 
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verb, even with the word “hereby,” cannot be interpreted as 

present testamentary intent. Clark also contends the use of the 

verb “‘want’” instead of “‘devise,’” “‘bequeath,’” or “‘give’” 

indicates future intent and not a present intent to make a will. 

Brief for appellee Clark at 8.

As noted above, “hereby” means “[b]y this document,” 

Black’s Law Dictionary, supra, and “intend” means, in relevant 

part, “[t]o have in mind a fixed purpose to reach a desired 

objective; to have as one’s purpose . . . [t]o signify or mean,” 

id. at 930. The combination of the words “hereby intend” 

with the words “to change my will” does not clarify whether 

Tiedeman meant that with “this document,” he was actually 

changing or revoking an existing will and creating a new will 

at that moment, or that with “this document,” he was signifying 

his plan to change an existing will in the future. For example, 

the writing in question could have simply been a note written 

by Tiedeman to remind Timmer of his plans to later change 

his will, particularly since an admitted portion of Timmer’s 

affidavit indicates Timmer told Tiedeman to schedule another 

appointment to discuss a new will. On the other hand, if 

the excluded portions of Timmer’s affidavit could be considered, an argument can certainly be made that the writing was 

intended to evidence present testamentary intent. As set forth 

earlier, testamentary intent concerns whether the document was 

intended to be a will.

It is significant, therefore, whether the district court could 

have considered evidence outside the four corners of the purported will to determine testamentary intent under the circumstances present here. In construing the words within the 

four corners of the document, we can find no error with the 

district court’s analysis and conclusion that the writing indicates only future intent and lacks present testamentary intent. 

Accordingly, we next consider whether extrinsic evidence may 

be considered to determine testamentary intent, because if so, a 

different outcome is possible.
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Extrinsic Evidence.

[7,8] Ambiguity exists in an instrument, including a will, 

when a word, phrase, or provision in the instrument has, or is 

susceptible of, at least two reasonable interpretations or meanings. In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536 

(2017). In the present matter, the court construed the writing 

to indicate only Tiedeman’s future intent to change his will, as 

discussed above. Lovorn argues the document should be construed to show present testamentary intent. Clearly, the words 

are ambiguous in this regard. And as noted above, Lovorn’s 

argument is certainly more persuasive if the excluded portions 

of Timmer’s affidavit can be considered. However, parol evidence is inadmissible to determine the intent of a testator as 

expressed in his or her will, unless there is a latent ambiguity 

therein which makes his or her intention obscure or uncertain. 

In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006). 

The district court concluded that there was no latent ambiguity in the document at issue and that therefore, the extrinsic 

evidence contained in paragraphs 10, 12, and 13 of Timmer’s 

affidavit could not be considered. We agree.

[9-12] A patent ambiguity is an ambiguity appearing on 

the face of the instrument, whereas a latent ambiguity is one 

outside the will. In re Estate of Florey, 212 Neb. 665, 325 

N.W.2d 643 (1982). See, also, In re Estate of Corrigan, 218 

Neb. 723, 358 N.W.2d 501 (1984) (patent ambiguity in will 

is one appearing on face of instrument as result of language 

contained therein). It is evident that the ambiguity at issue 

here is a patent ambiguity. The ambiguity arises from the writing itself, or from the face of the document. The words could 

indicate Tiedeman’s intent to change an existing will with 

this particular document or his intent to change an existing 

will at some time in the future. A patent ambiguity must be 

removed by interpretation according to legal principles, and 

the intention of the testator must be found in the will. In re 

Estate of Mousel, supra. Patent ambiguities are “resolved from 

within the four corners of the will and without consideration 
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of extrinsic evidence.” In re Estate of Matthews, 13 Neb. App. 

812, 816, 702 N.W.2d 821, 825 (2005) (court rejected argument that extrinsic evidence could be considered for purpose 

of considering circumstances under which holographic will 

was made; will at issue involved patent ambiguity, not latent 

ambiguity). Where in a will there is such a patent ambiguity 

resulting from the use of the words and nothing appears within 

its four corners to resolve or clarify the ambiguity, the words 

must be given their generally accepted literal and grammatical 

meaning. In re Estate of Florey, supra. Construction includes 

the process of determining the correct sense, real meaning, or 

proper explanation of an ambiguous term, phrase, or provision 

in a written instrument. In re Estate of Matthews, supra. This 

is precisely what the district court did in this instance to reach 

its conclusion that the writing expressed “Tiedeman’s intent to 

create a new will at a future date and not that this expression 

intended the creation of a final will.”

[13-15] We now explain why the writing at issue does not 

involve a latent ambiguity, which would allow consideration 

of extrinsic evidence. A latent ambiguity exists when the testator’s words are susceptible of more than one meaning, and the 

uncertainty arises not upon the words of the will as looked 

at themselves, but upon those words when applied to the 

object or subject which they describe. In re Estate of Mousel, 

supra. See Krueger v. Krueger, 169 Neb. 82, 98 N.W.2d 360 

(1959). For example, when a will contained a devise of land 

to the “‘Masonic Lodge for Crippled Children,’” on its face 

there would appear to be no ambiguity. See In re Estate of 

Bernstrauch, 210 Neb. 135, 136, 313 N.W.2d 264, 266 (1981). 

However, in In re Estate of Bernstrauch, it became evident 

that there was no such entity called the Masonic Lodge for 

Crippled Children. This resulted in two entities seeking to be 

designated as the proper devisee. Accordingly, the Nebraska 

Supreme Court concluded that a latent ambiguity existed, noting, “A latent ambiguity arises when a beneficiary is erroneously described or where no such beneficiary has ever existed 
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as the one so described” or “when two or more persons or 

organizations answer the description imperfectly.” Id. at 139, 

313 N.W.2d at 267. Further, “extrinsic evidence is admissible both to disclose and to remove the latent ambiguity of 

the will.” Id. It is clear that a latent ambiguity is not the type 

of ambiguity at issue in the present appeal; the ambiguity in 

Tiedeman’s purported will is within the face of the document 

itself and is therefore a patent ambiguity.

[16] In summary, a patent ambiguity is a case where the 

same word in a will has two meanings discernible from the 

face of the will itself, whereas a latent ambiguity is a case 

where the word has two meanings, but only when extrinsic evidence is brought to bear. In re Estate of Smatlan, 1 Neb. App. 

295, 501 N.W.2d 718 (1992).

Clark correctly argues that any question regarding the testamentary intent of the purported holographic will is a patent 

ambiguity. She relies on In re Estate of Matthews, 13 Neb. 

App. 812, 702 N.W.2d 821 (2005), to assert extrinsic evidence 

cannot be used, and she argues the district court should have 

sustained her objection and kept the entirety of Timmer’s 

affidavit out of evidence. As noted earlier, in In re Estate 

of Matthews, this court rejected an argument that extrinsic 

evidence could be considered for the purpose of considering 

the circumstances under which a holographic will was made, 

since the will at issue involved a patent ambiguity, not a 

latent ambiguity.

Both Brethouwer and Clark direct us to In re Estate of 

Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998), where the 

court considered whether the decedent’s handwriting on a 

photocopy of a previously executed will (and which was maintained in folder containing original will) was made with sufficient testamentary intent to constitute a proper holographic 

codicil. The decedent’s personal representative submitted the 

original will and the purported holographic codicil for probate. A grandson objected to the admission of the purported 

codicil. Evidence was adduced that the decedent did not like 
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the grandson and that she told one of her attorneys she did 

not want the grandson to be an ongoing beneficiary or to participate in a previously established irrevocable trust. The trial 

court concluded the decedent had complied with the requirements of a holographic codicil and admitted the photocopy as 

a valid holograph, and this court affirmed on appeal. See In re 

Estate of Foxley, 6 Neb. App. 1, 568 N.W.2d 912 (1997). The 

Nebraska Supreme Court reversed, finding that the handwritten words at issue in that case, standing alone, did not evidence a clear testamentary intent. It stated:

Although one might be sympathetic toward giving 

effect to the decedent’s perceived testamentary intent, 

the Legislature has chosen to require that testamentary 

intent be expressed in certain ways before an instrument 

is entitled to be probated as a will. Unfortunately for the 

decedent, the instrument in this case fails. See Matter 

of Estate of Muder, 159 Ariz. 173, 765 P.2d 997 (1988). 

In this case, the testimony of [the decedent’s] attorney 

and [one of] her daughter[s] . . . indicates that when [the 

decedent] changed the terms on the copy of her will, 

she was at least considering, if not actually intending, to 

write [her grandson] out of her will. We cannot conclude, 

however, that she had come to a final decision when writing on the copy of the will. We must remember that both 

the original and the copy of the will were found together 

in the den of [the decedent’s] home, and an argument can 

be made that she was simply making notes on the copy 

of the will as to possible changes and had not, at the time 

of making those notes, made a final decision as to [her 

grandson]. If she was making a final decision, a plausible 

argument can be made that she would have made those 

changes on the original. If we make an exception in this 

case to the rule that holographic words, standing alone, 

have to demonstrate a clear testamentary intent, where 

do we stop? To weaken the rule would be to invite mischief or outright fraud by overreaching heirs, friends, or 
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other potential beneficiaries taking advantage of testators 

in their most vulnerable moments, such as advanced age 

or right after an argument with one of the children or 

grandchildren. If one has made a final decision to write 

an heir out of his or her will, this must be done in such 

a way that the expression of this intention complies with 

the statute.

In re Estate of Foxley, 254 Neb. at 210-11, 575 N.W.2d at 

154-55.

[17,18] In re Estate of Foxley certainly emphasizes the 

importance of being true to the statutory requirements by making sure that an instrument expresses testamentary intent in 

certain, clear ways before being entitled to be probated as a 

will; further, courts should not give effect to any “perceived” 

testamentary intent. Id. at 210, 575 N.W.2d at 154. Also significant in the quote above is the point made at the end regarding 

decisions to write an heir out of a will. Notably, the Nebraska 

Supreme Court has said that “‘“the law will not suffer the heir 

to be disinherited upon conjecture.”’” Lowry v. Murren, 195 

Neb. 42, 45, 236 N.W.2d 627, 630 (1975). Although a testator 

may disinherit an heir, “‘“the law will execute that intention 

only when it is put in a clear and unambiguous shape.”’” Id. 

To the extent Tiedeman intended to disinherit his sisters, the 

writing at issue certainly does not provide for that in clear and 

unambiguous terms.

Lovorn’s counsel also referred to In re Estate of Foxley, 

254 Neb. 204, 575 N.W.2d 150 (1998), during oral argument 

as an example of a Nebraska case where extrinsic evidence 

was used to interpret the testamentary intent behind a document, because in its analysis, the Nebraska Supreme Court 

mentioned the location where the purported codicil and the 

original will were found. However, In re Estate of Foxley

does not support Lovorn’s position. The Nebraska Supreme 

Court was clear that the handwritten words on the photocopy 

of the will, standing alone, could not be understood to have 

testamentary intent without referring to the typewritten words 
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of the original will (extrinsic evidence) and that therefore, the 

purported holographic codicil was invalid. In that case, there 

may have been a different outcome that would have given 

effect to the decedent’s perceived testamentary intent if the 

extrinsic evidence could have been considered. The same can 

be said here. However, the Nebraska Supreme Court was clear 

in In re Estate of Foxley that testamentary intent had to be 

discerned from the handwritten words alone. That is precisely 

what the district court did in this case.

Lovorn also asserts the district court should have admitted 

Timmer’s entire affidavit based on In re Estate of Dimmitt, 141 

Neb. 413, 3 N.W.2d 752 (1942). Lovorn reads In re Estate of 

Dimmitt to allow extrinsic evidence to be considered to “‘show 

the facts and circumstances surrounding the situation under 

which Tiedeman created the will.’” Brief for appellant at 15, 

quoting In re Estate of Dimmitt, supra. However, Lovorn’s 

reliance on In re Estate of Dimmitt is misplaced. The dispute 

in In re Estate of Dimmitt was over an attempt to admit both a 

will and a deed into probate together in order to convey a tract 

of the decedent’s land. In re Estate of Dimmitt has been found 

to be distinguishable from cases where the will purports to be 

complete on its face and makes no reference to any extrinsic 

document. See In re Estate of Matthews, 13 Neb. App. 812, 

702 N.W.2d 821 (2005). We likewise find In re Estate of 

Dimmitt inapplicable here, because there is no attempt in this 

case to incorporate an extrinsic document into the will like the 

deed in In re Estate of Dimmitt.

In summary, we agree with the district court’s decision that 

the purported holographic will could not be legally recognized 

as a valid holographic will. The court correctly determined 

that the document did not contain sufficient material provisions expressing testamentary and donative intent within 

the document itself and that extrinsic evidence could not be 

considered to aid in that determination since there was no 

latent ambiguity.
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Supersedeas Bond.

Lovorn assigned as error that the supersedes bond amount 

of $400,000 set by the district court was both an excessive 

amount and in excess of 50 percent of his net worth, which he 

argues is contrary to Neb. Rev. Stat. § 25-1916 (Reissue 2016). 

However, after considering the motions for summary disposition on this issue, we reduced the supersedeas bond amount 

to $100,000, which Lovorn posted, making his assignment 

of error, and Clark’s cross-appeal on this issue, moot before 

this court.

Remaining Assigned Errors.

On cross-appeal, Brethouwer and Clark both assign as 

error the district court’s admission of Timmer’s affidavit, 

other than paragraphs 10, 12, and 13. Clark also assigns as 

a separate error the district court’s finding that the writing in 

question was in Tiedeman’s handwriting. However, an appellate court is not obligated to engage in an analysis that is not 

necessary to adjudicate the case and controversy before it. 

Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 

(2017). Having already found the document in question is not 

a valid holographic will, we need not decide these remaining 

assigned errors.

CONCLUSION

For the reasons set forth above, we affirm the district 

court’s order.

Affirme