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309 Nebraska Reports

MALOUSEK v. MEYER

Cite as 309 Neb. 803

Mark J. Malousek, successor to Eric Rees, 

as Special Administrator of the Estate 

of Molly R. Stacey, deceased, et al., 

appellees and cross-appellants, v. 

Steven Greg Meyer and Mark 

A. Meyer, appellants and 

cross-appellees.

___ N.W.2d ___

Filed July 30, 2021. No. S-20-470.

1. Actions: Parties: Standing: Jurisdiction. The question of whether a 

party who commences an action has standing and is therefore the real 

party in interest presents a jurisdictional issue.

2. Standing: Jurisdiction: Judgments: Appeal and Error. Standing is 

a jurisdictional component of a party’s case, because only a party who 

has standing may invoke the jurisdiction of a court; determination of a 

jurisdictional issue which does not involve a factual dispute is a matter 

of law which requires an appellate court to reach its conclusions independent from those of a trial court.

3. Declaratory Judgments. An action for declaratory judgment is sui 

generis; whether such action is to be treated as one at law or one in 

equity is to be determined by the nature of the dispute.

4. Appeal and Error. In a bench trial of a law action, the trial court’s 

factual findings have the effect of a jury verdict and will not be set aside 

on appeal unless they are clearly wrong.

5. Trial: Witnesses. In a bench trial of an action at law, the trial court is 

the sole judge of the credibility of the witnesses and the weight to be 

given their testimony.

6. Equity: Evidence: Appeal and Error. A case in equity is reviewed de 

novo on the record, subject to the rule that when credible evidence is in 

conflict on material issues of fact, an appellate court will consider and 

may give weight to the fact that the trial court observed the witnesses 

and accepted one version of the facts over another.

Nebraska Supreme Court Online Library

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

10/01/2021 01:09 AM CDT
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7. Appeal and Error. In a review de novo on the record, an appellate court 

reappraises the evidence as presented by the record and reaches its own 

independent conclusions concerning the matters at issue.

8. Contracts: Undue Influence: Proof. The elements necessary to warrant the rejection of a written instrument on the ground of undue influence are (1) that the person who executed the instrument was subject to 

undue influence, (2) that there was opportunity to exercise undue influence, (3) that there was a disposition to exercise undue influence for an 

improper purpose, and (4) that the result was clearly the effect of such 

undue influence.

9. 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.

10. 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.

11. Trial: Witnesses: Testimony. Witness credibility and the weight to be 

given a witness’ testimony are questions for the trier of fact.

12. Contracts: Mental Competency: Proof. In order to set aside a written instrument for want of mental capacity on the part of the person 

executing it, the burden of proof is upon the party asserting incapacity 

to establish that the mind of the person was so weak or unbalanced when 

the instrument was executed that the person could not understand and 

comprehend the purport and effect of what he or she was doing.

13. Contracts: Marriage: Mental Competency. A marriage contract will 

not be declared void for mental incapacity to enter into it unless there 

existed at the time of the marriage such a want of understanding as to 

render a party incapable of assenting thereto.

14. ____: ____: ____. Mere weakness of mind is not sufficient to void a 

contract of marriage unless there be such a mental defect as to prevent 

the party from comprehending the nature of the marriage contract and 

from giving free and intelligent consent to it.

15. Contracts: Marriage. A marriage is valid if a party has sufficient 

capacity to understand the nature of the contract and the obligations and 

responsibilities it creates.

16. Actions: Trusts: Equity. Actions to declare a resulting trust are in 

equity.

17. Trusts: Conveyances: Presumptions: Intent: Words and Phrases. A 

resulting trust is one raised by implication of law and presumed always 

to have been contemplated by the parties; the intention of the resulting 

trust is to be found in the nature of their transaction, but not expressed 

in deed or instrument of conveyance.
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Cite as 309 Neb. 803

18. Trusts: Property: Consideration. Where a transfer of property is made 

to one person and the purchase price or consideration is paid by another 

person, a resulting trust arises in favor of the person who made the payment or provided consideration.

19. Trusts: Proof. The burden is on the one claiming the existence of a 

resulting trust to establish the facts upon which it is based by clear and 

satisfactory evidence.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Travis M. Jacott, Patrick J. Sullivan, and C.G. (Dooley) 

Jolly, of Adams & Sullivan, P.C., L.L.O., for appellants.

Thomas M. White and Amy S. Jorgensen, of White & 

Jorgensen, for appellees.

Mark J. Malousek, pro se.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Steven Greg Meyer (Greg) and his adult son, Mark A. 

Meyer, appeal an order of the district court for Sarpy County 

that declared the marriage between Greg and Molly R. Stacey, 

deceased, to be null and void and ordered them to execute instruments to relinquish certain property interests they 

obtained from Molly before her death. They contend that 

Molly’s children lack standing to challenge certain transactions 

at issue and that the party that had standing to challenge those 

transactions, the special administrator of Molly’s estate, did 

not join the action. Greg and Mark also allege that the district 

court incorrectly found that Molly lacked the requisite mental 

capacity and acted under undue influence. Finding no error by 

the district court on these issues, we affirm in part.

Molly’s children and the special administrator of her estate 

cross-appeal, assigning that the district court erred in failing 
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to rule that a boat Molly purchased and titled in Mark’s name 

should be regarded as held in a resulting trust by Mark for 

Molly’s benefit. We agree and in part reverse, and remand 

with directions.

I. BACKGROUND

Molly and Greg began living together, unmarried, in 2009. 

Each had children from previous marriages. In 2015, Molly 

was diagnosed with cancer and underwent treatment, but the 

cancer spread and her condition deteriorated. On October 

12, 2017, with Greg’s involvement, Molly made Greg a joint 

owner on two of her bank accounts. On October 14, Molly 

and Greg married. In the following days, again with Greg’s 

involvement, Molly changed beneficiary designations on other 

accounts and an insurance policy to favor Greg, rather than her 

adult children, or to include Mark; executed quitclaim deeds 

in both her homes to vest ownership in Greg upon her death; 

and changed a recently executed power of attorney from her 

son to Greg. On October 23, Molly died intestate. She was 60 

years old.

Molly’s adult children, Austin J. Stacey (A.J.) and Courtney 

R. Stacey, believed that Molly’s actions in October 2017 

resulted from undue influence and that she lacked capacity 

due to her illness. They filed a declaratory judgment action in 

the district court against Greg and Mark seeking declarations 

that all of the above property interest changes and the marriage of Molly and Greg were void and invalid. Greg and Mark 

responded with motions and pleadings alleging that Molly’s 

children were not the real parties in interest and seeking dismissal of the complaint for lack of standing. The district court 

denied the motions to dismiss.

Later in the action, Molly’s children obtained leave to file 

an amended complaint in which the special administrator of 

Molly’s estate would be joined as an additional plaintiff. In 

the ensuing second amended complaint, Molly’s children and 

the special administrator added allegations that a boat Molly 
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had purchased was titled in Mark’s name by Molly in 2015 and 

that the boat belonged to Molly when she died.

Following a trial, the district court generally found in favor 

of Molly’s children and the special administrator, whom the 

court recognized as the plaintiffs. It expressly found their witnesses more credible than Greg and Mark’s and determined 

that Molly’s children and the special administrator had met 

their burden of proving that the marriage and the October 2017 

transactions were procured by undue influence by Greg or his 

family and while Molly lacked mental capacity. However, the 

district court concluded that the boat purchased by Molly and 

titled in Mark’s name was a gift and declined to find that it 

amounted to a resulting trust. It declared the marriage null and 

void and ordered Greg and Mark to execute any instruments 

necessary to convey interests they had acquired to Molly’s 

children and her estate, with the exception of the boat.

Greg and Mark appealed, asserting that the district court 

had erred in its findings that did not involve the boat. Molly’s 

children and the special administrator have cross-appealed to 

challenge the district court’s ruling as to the boat.

II. ASSIGNMENTS OF ERROR

Greg and Mark assign that the district court erred in (1) 

holding that Molly’s children had standing to challenge the 

validity of the real and personal property transfers Molly made, 

(2) holding that Molly’s estate is a party to the action, (3) 

applying a greater weight of the evidence standard to claims of 

undue influence and lack of mental capacity rather than a clear 

and convincing evidence standard, and (4) making the factual 

finding that Molly lacked mental capacity and was subject to 

undue influence.

On cross-appeal, Molly’s children and the special administrator assign that the district court erred in (1) imposing a 

duty on them to prove that the boat was not a gift from Molly 

to Mark to avoid it being held in a resulting trust and (2) 

failing to hold that Mark held title to the boat as trustee for 

Molly’s benefit.
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Cite as 309 Neb. 803

III. STANDARD OF REVIEW

We address the relevant standard of review in each subsection of the analysis below.

IV. ANALYSIS

1. Jurisdiction

[1] In Greg and Mark’s first two assigned errors, they 

contend that Molly’s children did not have standing to challenge Molly’s real and personal property transfers and that the 

party with standing to challenge those transactions—the special 

administrator of Molly’s estate—was not a party to the action. 

The question of whether a party who commences an action has 

standing and is therefore the real party in interest presents a 

jurisdictional issue. Valley Boys v. American Family Ins. Co., 

306 Neb. 928, 947 N.W.2d 856 (2020). Therefore, we consider 

this issue first.

(a) Additional Background

As noted above, Molly’s children alone initiated the declaratory judgment action. They did so before any special administrator or personal representative was appointed for Molly’s 

estate. However, after Greg and Mark filed answers and 

motions to dismiss alleging that Molly’s children were not real 

parties in interest and lacked standing to commence the suit, 

Molly’s children sought and obtained leave to add the special 

administrator of Molly’s estate, Eric Rees, as a plaintiff. Their 

motion asserted that the special administrator was recently 

appointed, had an interest in the proceeding, and was a necessary party.

The resulting second amended complaint named the special 

administrator as a plaintiff and stated that his “presence in this 

action is nominal only, and solely for the purpose of allowing 

an action to proceed to determine the nature and extent of the 

probate estate of Molly.” All requests for relief and supporting 

legal conclusions were by “Plaintiffs.” Rees signed the second 

amended complaint as special administrator, along with the 

attorney representing Molly’s children.
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At the opening of trial, the district court invited the parties to address preliminary matters. Mark Malousek, Rees’ 

successor as special administrator, identified himself as acting special administrator and responded, “I hereby will adopt 

the arguments and claims of [Molly’s children].” Greg and 

Mark’s counsel objected, referred to their arguments based on 

standing, and noted that the estate had not filed any “affirmative pleadings.”

In its order following trial, the district court explained that 

it was not persuaded by Greg and Mark’s arguments regarding standing. It recognized Molly’s estate as a full party to the 

action that had, at the beginning of trial, adopted all claims 

made by Molly’s children.

(b) Standard of Review

[2] Standing is a jurisdictional component of a party’s case, 

because only a party who has standing may invoke the jurisdiction of a court; determination of a jurisdictional issue which 

does not involve a factual dispute is a matter of law which 

requires an appellate court to reach its conclusions independent 

from those of a trial court. Egan v. County of Lancaster, 308 

Neb. 48, 952 N.W.2d 664 (2020).

(c) Analysis

Greg and Mark’s argument that Molly’s children lacked 

standing to challenge Molly’s real and personal property transfers is based on our decision in In re Estate of Hedke, 278 

Neb. 727, 775 N.W.2d 13 (2009). In that case, we held that 

under the Nebraska Probate Code, the right and duty to sue 

and recover assets for an estate reside in the estate’s appointed 

personal representative, not the devisees. Id. We went on to 

explain that the Nebraska Probate Code allows for the appointment of a special administrator to administer an estate when a 

personal representative cannot or should not act. There is no 

dispute that a special administrator was appointed to administer 

Molly’s estate.
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We agree with Greg and Mark that under In re Estate of 

Hedke, any claims to recover assets for Molly’s estate could 

have been brought only by the special administrator of the 

estate. For reasons we will explain, however, that does not lead 

to the conclusion that the district court lacked jurisdiction.

First, Greg and Mark do not dispute that Molly’s children 

were the proper parties to assert some of the claims at issue 

notwithstanding our decision in In re Estate of Hedke. For 

example, the operative complaint sought to void changes to the 

beneficiary designations on Molly’s life insurance policy from 

Molly’s children alone to include Mark as well. Life insurance 

benefits are generally a type of nonprobate transfer and would 

thus not pass through Molly’s estate. See, e.g., In re Trust of 

Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007). Consistent 

with that principle, we have held that a challenge to a change 

to a life insurance beneficiary designation is properly brought 

by the person who would be entitled to the proceeds if the 

beneficiary change is voided. See Goff v. Weeks, 246 Neb. 163, 

517 N.W.2d 387 (1994). In this case, Molly’s children are the 

parties that would be entitled to the proceeds if the beneficiary 

changes are voided.

Molly’s children did initially seek to void other instruments 

with the goal of recovering assets for Molly’s estate, and only 

the special administrator could pursue this relief under In re 

Estate of Hedke. However, Molly’s children and the special 

administrator contend that because the special administrator 

became a plaintiff with the filing of the second amended complaint, the special administrator’s initial absence does not pose 

a jurisdictional problem.

Greg and Mark argue to the contrary, insisting that the 

special administrator was something less than a full party to 

the action. In support of this contention, Greg and Mark point 

out that the second amended complaint stated that the special 

administrator’s “presence in this action is nominal only, and 

solely for the purpose of allowing an action to proceed to 

determine the nature and extent of the probate estate of Molly.” 
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They also observe that many allegations in the complaint are 

phrased as allegations of “A.J. and Courtney,” rather than of the 

special administrator or all the plaintiffs. This shows, Greg and 

Mark claim, that the special administrator “explicitly refused to 

join the claims raised by [Molly’s children] of undue influence 

and lack of mental capacity.” Brief for appellants at 16.

We disagree with Greg and Mark and find that the special 

administrator joined in the lawsuit and asserted claims to 

recover assets for Molly’s estate. We understand the reference 

in the second amended complaint to the special administrator’s 

presence being “nominal” as merely conveying that the special 

administrator was participating in the action in his capacity as 

special administrator. We likewise do not draw the inference 

Greg and Mark draw from the fact that certain allegations are 

phrased as allegations of “A.J. and Courtney.” In any event, 

any notion that the special administrator was not a party to 

the action and asking the district court to restore property to 

Molly’s estate is undercut by several other facts. First, in the 

motion in which they sought leave to file the second amended 

complaint, Molly’s children asserted that the special administrator was recently appointed, had an interest in the proceeding, 

and was a necessary party. Further, the second amended complaint identified the special administrator as a plaintiff, was 

signed by the special administrator as a plaintiff, and framed 

each of its prayers for relief as being asserted by “[p]laintiffs.” 

Taken as a whole, the second amended complaint demonstrates 

that the special administrator joined the lawsuit as a plaintiff to 

assert claims to recover assets for Molly’s estate.

The most that Greg and Mark can argue regarding these 

issues is that prior to the filing of the second amended complaint, Molly’s children were asserting some claims that could 

only be asserted by the special administrator. On this point, we 

can agree that in the initial stage of this case, neither Molly’s 

children nor the district court demonstrated a clear grasp of 

the rule recognized in In re Estate of Hedke, 278 Neb. 727, 

775 N.W.2d 13 (2009). Molly’s children purported to assert 
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certain claims that could only be asserted by the special 

administrator. And when Greg and Mark brought this issue to 

the attention of the district court via a motion to dismiss, the 

district court initially failed to recognize it.

These early missteps do not, however, call into question 

the district court’s authority to enter judgment on the validity 

of the real and personal property transfers Molly made. Even 

if the district court should have dismissed claims governed 

by In re Estate of Hedke to the extent Molly’s children alone 

were attempting to assert them, the fact that claims are initially 

asserted by the wrong party does not require the immediate, 

permanent dismissal of such claims, let alone the entire action. 

See Neb. Rev. Stat. § 25-301 (Reissue 2016) (“[a]n action 

shall not be dismissed on the ground that it is not prosecuted 

in the name of the real party in interest until a reasonable time 

has been allowed after objection for joinder or substitution 

of the real party in interest”). See, also, Concerned Citizens 

v. Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 

654 (1993) (reversing order dismissing petition with prejudice, in part, because defects in allegations regarding standing 

were curable).

In response to Greg and Mark’s motion to dismiss, the district court could and should have noted that Molly’s children 

lacked standing to recover assets for the estate and afforded 

leave for the special administrator to join the action as a plaintiff. Despite the district court’s failure to do so, the special 

administrator did eventually join the lawsuit. Once the duly 

appointed special administrator joined, the proper parties were 

present and the district court had jurisdiction to rule on all the 

claims asserted. This is true even though the special administrator had not been appointed when Molly’s children initiated the 

action. See § 25-301 (“[j]oinder or substitution of the real party 

in interest shall have the same effect as if the action had been 

commenced by the real party in interest”). See, also, Walker v. 

Probandt, 29 Neb. App. 704, 958 N.W.2d 459 (2021). Greg and 

Mark’s jurisdictional assignments of error lack merit.
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2. Lack of Mental Capacity 

and Undue Influence

Greg and Mark’s remaining assignments of error challenge 

the district court’s determination that the marriage and the 

various transactions involving Molly’s homes, bank accounts, 

and beneficiary designations should be declared invalid on the 

grounds that Molly lacked the requisite mental capacity and 

that undue influence was exerted over her. For the reasons 

explained below, however, we are not persuaded.

(a) Additional Background

At trial, Molly’s children and the special administrator presented evidence that in 2009, Greg began living in Molly’s 

Nebraska residence with her and her children, who were then 

teenagers. Relationships in the household were generally harmonious. Greg’s son, Mark, was an adult at that time and lived 

elsewhere. Several of the witnesses of Molly’s children and 

the special administrator testified that Molly had a close relationship with her children and that they had always been her 

top priority.

In 2010, Molly began wearing a ring she had purchased. 

Molly consistently characterized the ring to friends and family 

as a commitment ring, and through the years, she repeatedly 

disclaimed plans to marry again.

Greg, born in 1955, had not had a job with regular income 

since 2002. Molly had assets from her divorce settlement and 

later inherited assets from her mother. After moving in with 

Molly in 2009, Greg relied on her to provide for all of his living expenses, and he cooked and did housework.

Several witnesses testified that Molly had complained about 

supporting Greg financially. In particular, Molly expressed that 

Greg spent too much of her money on alcohol, and she was 

annoyed when he offered drinks to friends and trips to Florida 

to his son, Mark, and expected Molly to pay for it. There was 

also testimony that in 2013, Greg asked to be included on the 

deed to a residence Molly purchased in Florida; Molly refused. 

A.J. recalled that when Molly and Greg were drinking, Greg 
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would bring up the subject of wanting his name on the Florida 

house or wanting more money, and Molly did not like it. A.J. 

testified that multiple times Greg said he wanted money or to 

be on a policy or a bank account, but Molly only wanted her 

name on her assets. A.J. testified that Greg had tried to obtain 

a credit card in his name on Molly’s account, but Molly would 

not allow it because Greg did not have his own money and she 

did not want him “going crazy spending money.” A friend testified that during the last 4 years of Molly’s life, Molly said that 

Greg was “le[e]ching” or “mooching” off of her.

Molly was diagnosed with mouth cancer in December 2015 

and underwent surgeries and other treatment. Molly did not 

have a will, but Molly’s friends and family testified that Molly 

had always maintained, as late as September 2017, the month 

before she died, that she wanted her assets divided equally 

between A.J. and Courtney when she died, even if the operative financial instruments gave more to Courtney. There was 

testimony that Molly had remarked to some friends and family as late as August 2017 that she supposed she should leave 

Greg $50,000, but nothing else. And about a year before her 

cancer diagnosis, Molly had rejected Greg’s suggestion that she 

include Mark in her estate plan.

In June 2017, Molly contacted attorney Richard Whitworth 

about setting up health care and durable powers of attorney. 

Whitworth, who knew Molly from handling her mother’s estate 

starting in 2011, testified that in June 2017, Molly was lucid. 

Molly said she wanted to name A.J. as attorney in fact, and 

she specifically said she did not want Greg to know about the 

matter. Molly later came to Whitworth’s office to execute the 

powers of attorney documents. A.J. testified that Molly did not 

want Greg to know because she did not want to deal with the 

pressure of Greg’s questions about her decision.

Whitworth asked Molly whether she needed any additional 

estate planning services, and Molly declined, saying that as 

long as she remained single, everything would pass to her 

children and that is what she wanted. According to Whitworth, 
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Molly made similar statements in his presence multiple times. 

At no time after executing the powers of attorney did Molly 

indicate to Whitworth that she had changed her mind about 

A.J.’s being the attorney in fact, nor did she inquire about 

how marriage would affect her plan to leave her property to 

her children.

There was testimony that despite Molly’s illness, she was 

supportive of her children’s career pursuits outside Nebraska—

Courtney in Kansas City, Missouri, and A.J. in Florida. In 

2017, both A.J. and Courtney spoke to Molly several times 

a week and made trips to Nebraska to visit her. In May and 

August 2017, Molly visited A.J.

Cari Tilson testified that she had been Molly’s nail technician since 2006 or 2007 and did Molly’s nails every 3 weeks. 

Tilson last worked on Molly’s nails on September 14, 2017. 

Greg’s sister, Ann Labart, drove Molly to the appointment, 

helped her into the salon, and stayed next to her. Tilson 

observed that Molly appeared very frustrated because anytime 

Molly “would say a word,” Labart wanted to know what she 

had said. Tilson testified that Molly’s body language indicated 

that Labart was too close to her, and at one point, Molly said 

to Labart, “[G]ive me a break. Let me breathe.”

Labart testified that Molly slept often during her last weeks, 

but she denied that Molly was “mentally totally out of it.” 

Labart testified that Greg fed Molly and controlled the narcotics for Molly’s pain. Labart denied that Molly was being given 

drugs beyond what was prescribed. Labart testified that she 

was paying for Greg’s legal fees and supporting him financially and would continue to do so regardless of the outcome 

of the litigation.

Molly’s longtime close friend Teri Troilo testified that she 

last saw Molly the second week of September 2017. Molly 

told Troilo that Nebraska did not have common-law marriage 

and that therefore, in the absence of a will, Molly’s money 

would go to her children as she had arranged it. Molly also 

told Troilo that at that time, she still had no intention of ever 
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getting married again and, in the absence of any marriage, her 

children would be taken care of financially when she died.

After her visit in September 2017, Troilo called Molly’s 

telephone several times, at least once a week. Greg always 

answered Molly’s telephone and usually told Troilo that Molly 

was sleeping. Troilo was only able to speak to Molly one 

time, and Molly was only able to respond “uh-huh” and 

“huh-uh.” The subject of marriage did not come up. According 

to Troilo, Greg did not communicate to her that Molly was 

close to death.

A.J. visited Molly in mid-September 2017. Then in late 

September and early October 2017, when A.J. tried to call 

Molly, it was difficult to reach her. She often did not call 

back, and when she did, the calls were short and Molly was 

difficult to understand. At that time, Greg began to answer the 

telephone regularly rather than Molly. Greg would tell A.J. that 

Molly was tired or sleeping, update him on any appointments, 

and tell him that Molly was “holding her own.” A.J. would 

ask to speak to Molly directly, and most of the time, Greg 

would say she was too tired or had just taken medication and 

was sleeping.

Todd Jensen testified that he was Greg’s best friend and was 

at the Nebraska residence three or four times a week. Jensen 

testified that he observed Molly’s condition gradually deteriorate during the last month of her life and that she lost her ability to focus or make normal decisions. He saw Molly and Greg 

on October 10, 2017. At that time, Molly did not know who 

Jensen was. When Jensen was there, neither Molly nor Greg 

mentioned plans to get married.

On October 12, 2017, Molly signed documents to convert 

her two bank accounts from her sole ownership to joint ownership with Greg. Bank manager Marcell Kalonga assisted with 

the transaction. He observed Greg and Molly enter the bank 

and testified that Molly appeared tired and sick and “couldn’t 

even walk” and that Greg was “holding her [up].” In Kalonga’s 

opinion, Molly needed to be in bed at home or hospitalized 
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because she did not seem to have the strength to do things 

on her own. Greg told Kalonga that he wanted to be added to 

Molly’s account because they were engaged to be married in 

about a week, that Molly was dying, and that he had promised 

to marry Molly before she died. Kalonga testified that Molly 

had difficulty speaking to answer his questions. According to 

Kalonga, contrary to normal procedure, “[a]ll the conversation 

was 100 percent done by” Greg. Kalonga was uncomfortable 

with the situation, and at some point, he asked Greg to step 

out so that Kalonga could speak to Molly, but Greg “couldn’t.” 

Kalonga testified that despite his misgivings, he proceeded 

with the transaction because Greg and Molly were cohabitating 

and soon to be married. Greg held Molly’s hand to help her 

sign documents. After Greg and Molly left, Kalonga told some 

coworkers about the incident because he did not feel it was 

“right.” In his opinion, Greg was controlling what Molly was 

doing that day and she was acting against her wishes.

Courtney recalled speaking to Molly on the same day, which 

was Courtney’s birthday. Courtney testified that previously, 

Molly typically contacted her on her birthday, but in 2017, 

she did not. Courtney became concerned and called Molly in 

the late afternoon. Greg answered and told Courtney that they 

had been running errands and that Molly was tired. Courtney 

next spoke to Molly but could not understand anything she 

said because her speech was garbled. That was the last time 

Courtney was able to talk with Molly.

After October 12, 2017, Greg answered the telephone most 

of the time when Courtney called, or there was no answer. 

When Courtney asked to speak to Molly, Greg would tell 

Courtney that Molly was sleeping and offer to have Molly 

call Courtney back, but she never did, which was not typical 

for Molly.

On October 14, 2017, Greg and Molly were married in 

a ceremony at Molly’s Nebraska residence. Labart testified 

that she made the wedding arrangements and kept it a secret 

from Molly’s children because Molly made her promise not 

to tell them. Labart testified that the wedding was attended by 
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her, Mark and his wife, and Labart’s husband. Labart arranged 

for her boss to officiate and told him to keep the wedding 

a secret.

On October 15, 2017, Molly signed documents to change 

beneficiaries on her accounts with Minnesota Life. For a 

life insurance policy with a death benefit of $250,000, she 

changed the beneficiary designations from A.J. and Courtney 

in equal shares to A.J., Courtney, and Mark in equal shares. 

For a retirement account valued at approximately $550,000, 

Molly changed the beneficiary from Courtney alone to Greg, 

A.J., and Courtney, with Greg alone receiving half and A.J. 

and Courtney each receiving one fourth. As to a mutual fund 

account valued at about $180,000, Molly changed the beneficiary from Courtney to Greg.

On October 16, 2017, Molly signed documents to change 

the beneficiary designation on her National Life annuity policy 

from Courtney to Greg only. The change of beneficiary forms 

were not signed by a witness. The policy had a cash value of 

about $65,000.

On October 20, 2017, Molly signed quitclaim deeds for the 

Nebraska residence, valued at approximately $182,000, and 

the Florida residence, valued at approximately $408,580 with 

a mortgage of approximately $200,000. The deeds changed 

the properties from Molly’s sole ownership to joint ownership 

with Greg, with right of survivorship. On the same day, Molly 

signed durable powers of attorney documents giving Greg the 

powers of attorney that she had previously given to A.J. Greg, 

Mark, and Labart’s husband were present.

A.J. testified that his difficulty in getting Molly on the telephone increased dramatically toward the end of October 2017. 

That month, he called daily or every other day and talked to 

Molly once or twice only. If no one answered Molly’s telephone, A.J. would call Greg’s; Greg answered most of the 

calls, and if he did not, he called A.J. back. In October 2017, 

Greg never indicated to A.J. that Molly was very ill and that 

A.J. should come see her.
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Troilo testified that a few days before Molly died, Greg 

called her to tell her Molly was going into hospice and stopping treatment. Greg told Troilo that she needed to make a plan 

to visit Molly. He did not tell Troilo at that time that Molly had 

taken a sudden turn for the worse, nor did he tell her that he 

and Molly were thinking of marrying or had married.

Molly’s longtime friend Kristi Rieke testified that she saw 

Molly on October 21, 2017, after Greg informed her that 

Molly was not doing well and that Rieke should see her as 

soon as she could. Rieke was unsure whether Molly recognized her. After Molly fell asleep, Greg said in conversation 

that Molly did not have a will. Greg said he planned to call 

for hospice care in a few days, and Rieke advised him to do it 

right away, as she did not believe Molly would live that long. 

Rieke believed Molly’s children should have been there and 

asked Greg why they were not. Greg responded that they were 

busy. Upon Rieke’s request, Greg agreed to give Rieke their 

telephone numbers but asked Rieke not to call them because he 

wanted to follow Molly’s wishes. Rieke told Greg that Molly 

would want her children there. Rieke called Molly’s children 

the following day; Courtney was already with Molly, and A.J. 

was on his way. A.J. and Courtney had been informed about 

Molly’s condition after Rieke’s visit.

A.J. testified that around the same time, he had asked Greg 

if he should come to see Molly, and Greg had said that he did 

not have to come or that Greg did not think he should. On 

October 21, 2017, Mark told A.J. in a text message that if A.J. 

wanted to come, he should. A.J. immediately tried to get a 

flight to Nebraska.

Courtney testified that she would always ask Greg about 

Molly’s condition. Greg would answer that Molly was all right 

and putting up a good fight and that Greg was taking care of 

her. Greg did not inform Courtney until October 21, 2017, 

that Molly’s condition was seriously deteriorating. Greg told 

Courtney that Molly was in hospice and that Courtney might 

want to visit her. Early the next morning, Courtney traveled 
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to Nebraska. Molly appeared frail and did not speak or move. 

She could only open her eyes, and Courtney was not sure that 

Molly could recognize her. The next day, October 23, Molly 

died before A.J. arrived.

The evening that Molly died, Greg told Courtney that they 

had married. Courtney testified that it seemed out of character 

for Molly not to share the information with her because they 

were very close and also that it surprised her that Greg did not 

tell her before the wedding.

The day after Molly died, A.J. learned that Greg and Molly 

had married. A.J. considered this to be out of character for 

Molly, who had always been open about her plans and her 

plans had never included marriage, especially to Greg. A.J. 

spoke to Molly’s friends and family and learned that none of 

them were aware of the marriage ceremony in advance. Only 

Greg’s friends and family knew about it.

Troilo testified that she learned of the marriage from Greg 

the night Molly died. In Troilo’s opinion, if Molly had been 

in a lucid state, she would not have married without telling 

Troilo, especially considering their conversation about marriage in September 2017. Other friends of Molly’s also testified 

that they were surprised to learn she had married Greg.

There was no formal assessment of Molly’s mental functioning during October 2017 and no documented efforts to 

determine whether she could understand the importance of 

the specific decisions she made at that time; the focus was on 

the cancer and Molly’s pain. A medical expert, a psychiatrist 

retained by Molly’s children and the special administrator, 

reviewed Molly’s medical records and the depositions of people who knew Molly and interacted with her in October 2017. 

He opined that although Molly experienced lucid intervals 

from October 12 to 20, during that timeframe she also periodically experienced delirium, which is a serious disturbance in 

mental abilities that results in confused thinking and disrupts 

memory, orientation, planning, organizing, motivation, communication, and awareness of the environment.
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The medical expert retained by Molly’s children and the special administrator identified several possible causes of delirium 

that Molly experienced in October 2017, noting that multiple 

causes were likely present at the same time, with interactive 

and additive effects. These included her metabolic condition, 

dehydration and malnutrition, the physical stress of progressive 

cancer, fatigue, side effects from treatment, possible undiagnosed infection, disrupted sleep patterns, anxiety and depression, emotional stress, and reduced oxygen. In addition, in 

October 2017, Molly was taking several medications identified 

as causes of delirium, including the narcotic pain medications 

fentanyl and oxycodone and an antianxiety medication called 

lorazepam. The fentanyl was administered continuously for 3 

days at a time via a transdermal patch. In this medical expert’s 

opinion, due to these factors, there were times in October 2017 

when Molly lacked the mental capacity for decisionmaking and 

she was vulnerable to undue influence.

After the close of the case in chief for Molly’s children 

and the special administrator, Greg and Mark proceeded with 

their evidence. According to Greg and Mark’s evidence, on 

October 6, 2017, Molly and Greg obtained forms to change 

beneficiary designations on Molly’s life insurance, retirement 

account, and mutual fund account. Both Molly’s financial 

advisor and an attorney were present. They testified that Molly 

led the conversation and expressed that she wanted to leave 

$500,000 to her children through beneficiary designations and 

leave the Nebraska and Florida residences to Greg. Neither 

was concerned that Molly did not understand the significance of her actions or was influenced by Greg. The attorney 

informed Molly that if Greg’s name was put on the deeds to 

the residences, Greg would have to pay inheritance taxes when 

Molly died, unless they were married. According to testimony 

presented by Greg and Mark’s witness, Molly replied, “[T]hen 

we’ll get married.”

Greg and Mark presented the testimony of the officiant for 

Greg and Molly’s October 14, 2017, wedding. He testified 
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that he spoke to Molly alone before the wedding and that 

she told him she wanted to get married that day and stand by 

Greg’s side during the ceremony. It did not appear to him that 

Molly was being influenced, and he described the atmosphere 

as that of a familial, happy occasion.

Greg and Mark also presented testimony by the witness and 

the notary for Molly’s signing of the quitclaim deeds and powers of attorney documents on October 20, 2017. They testified 

that Molly seemed coherent and not coerced. The notary specifically asked Molly if signing the documents was what she 

wanted to do, and she answered yes.

Greg and Mark also submitted evidence from Molly’s physician that Molly was oriented and did not appear confused 

at her appointments between December 2016 and October 

19, 2017, with the exception of October 18, when she was 

sleepy and difficult to arouse and could only give one-word 

responses. Molly’s physician viewed Greg as a caregiver and 

did not perceive Greg as influencing Molly or making decisions for her.

Greg and Mark also called a medical expert. Like the medical expert for Molly’s children and the special administrator, he 

had not observed Molly, but offered opinion testimony based 

on his review of evidence in the case. He testified that although 

Molly may have experienced brief temporary alterations in her 

level of consciousness and her abilities, her records and the 

depositions of those involved with her did not show that she 

lacked mental capacity or that she did anything without her 

free will at any specific date or time before October 21, 2017. 

Molly’s medical records reflected a rapid deterioration of her 

condition starting on October 21, when she appeared confused, 

lethargic, and dazed.

(b) Analysis

The parties disagree as to the governing standard of review, 

the burden of proof actually applied by the district court, and 

whether the district court erred by declaring the marriage 
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and the disputed financial transactions invalid on the grounds 

that Molly lacked the requisite mental capacity and was the 

victim of undue influence. We discuss each of these issues in 

the sections below, beginning with the standard of review.

(i) Standard of Review

[3,4] An action for declaratory judgment is sui generis; 

whether such action is to be treated as one at law or one in 

equity is to be determined by the nature of the dispute. Weyh v. 

Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). In a bench trial 

of a law action, the trial court’s factual findings have the effect 

of a jury verdict and will not be set aside on appeal unless 

they are clearly wrong. Cotton v. Ostroski, 250 Neb. 911, 554 

N.W.2d 130 (1996). An action in equity is reviewed by an 

appellate court de novo on the record. See Mock v. Neumeister, 

296 Neb. 376, 892 N.W.2d 569 (2017). Offering little explanation, the parties to this appeal disagree about the nature of the 

dispute and, consequently, the standard of review. And, perhaps 

unexpectedly, Greg and Mark argue for a more deferential standard of review while Molly’s children and the special administrator accept a less deferential one.

[5] Greg and Mark assert that this is an action at law and that 

therefore, we should review the evidence for clear error. Upon 

a review for clear error, an appellate court does not reweigh 

the evidence, but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts 

in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. See Cotton v. 

Ostroski, supra. In a bench trial of an action at law, the trial 

court is the sole judge of the credibility of the witnesses and 

the weight to be given their testimony. Eicher v. Mid America 

Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).

[6] On the other hand, Molly’s children and the special 

administrator characterize this as an equitable action to be 

reviewed de novo. Under a de novo review, when credible 

evidence is in conflict on material issues of fact, an appellate 
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court will consider and may give weight to the fact that the 

trial court observed the witnesses and accepted one version of 

the facts over another. See Mock v. Neumeister, supra.

It appears that both parties may be partially correct as to 

the appropriate standard of review, depending on the claim 

at issue. We have held, for example, that an action to annul a 

marriage, being an action in equity, is reviewed de novo. See 

Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980). 

We have also said that an action alleging undue influence in 

executing a deed conveying real property from sole ownership 

to joint tenancy with right of survivorship is one in equity. See 

Anderson v. Claussen, 200 Neb. 74, 262 N.W.2d 438 (1978). 

And we identified an action to enjoin a defendant from making 

claims on a life insurance policy on the grounds of undue influence as an equitable action and reviewed it de novo. See Goff 

v. Weeks, 246 Neb. 163, 517 N.W.2d 387 (1994). In Cotton v. 

Ostroski, supra, however, we reasoned that a change to a joint 

account was akin to a testamentary devise; therefore, the matter sounded in law, and we reviewed it for clear error. Other 

instruments involved in this case also arguably function like 

testamentary devises.

We conclude that it is not necessary for us to determine 

issue-by-issue whether the claims asserted are equitable and 

subject to a de novo standard of review or legal and properly 

reviewed for clear error. Even assuming all claims are properly 

reviewed de novo, which is more favorable to Greg and Mark, 

we conclude that the district court did not err in declaring the 

marriage and the disputed financial transactions invalid.

(ii) Burden of Proof

Before addressing Greg and Mark’s arguments that the district court erred by finding that Molly lacked the requisite mental capacity and was the victim of undue influence, we consider 

Greg and Mark’s assignment of error concerning the burden 

of proof. They assert that the district court erred in applying 

a greater weight of the evidence burden of proof to this issue 

rather than a clear and convincing evidence standard.
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In closing arguments, the parties agreed that Molly’s children and the special administrator were required to prove their 

claims of lack of capacity and undue influence by clear and 

convincing evidence. The district court found in their favor 

on these issues. It expressly stated that it found the “witnesses 

[of Molly’s children and the special administrator] credible 

and more credible than those called by [Greg and Mark]” and 

therefore “place[d] more weight on their testimony.” Without 

expressly mentioning the burden of proof it had applied, the 

district court determined that Molly’s children and the special 

administrator had met their burden as to lack of mental capacity and undue influence.

According to Greg and Mark, the district court’s statement 

that it found the witnesses for Molly’s children and the special 

administrator more credible than theirs and placed more weight 

on their testimony demonstrates that the district court deviated from a clear and convincing burden of proof and instead 

improperly applied a greater weight of the evidence standard. 

Clear and convincing evidence is evidence which produces in 

the trier of fact a firm belief or conviction about the existence 

of the fact to be proved, while a greater weight of the evidence 

standard means evidence sufficient to make a claim more likely 

true than not true. See Burgardt v. Burgardt, 304 Neb. 356, 934 

N.W.2d 488 (2019); Mock v. Neumeister, 296 Neb. 376, 892 

N.W.2d 569 (2017). Molly’s children and the special administrator, as they did in the district court, accept that a clear and 

convincing burden of proof governs and contend that is the 

burden the district court applied.

As with our standard of review, we have tied the burden of 

proof in incapacity and undue influence cases to the nature of 

the cause of action. Generally, the burden of proof in an action 

at law is a greater weight of the evidence, and for an equitable 

action, the burden of proof is clear and convincing evidence. 

See In re Estate of Price, 223 Neb. 12, 388 N.W.2d 72 (1986). 

See, also, Miller v. Westwood, 238 Neb. 896, 472 N.W.2d 

903 (1991). And as we observed in discussing the standard of 
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review, the nature of the cause of action for each of the various 

transactions involved in this case is not entirely clear. Again, 

the parties do not address this uncertainty, but again, it is not 

necessary for us to resolve it.

We see no indication that the district court held Molly’s 

children and the special administrator to anything other than 

a burden to prove their claims by clear and convincing evidence, as the parties requested. The language upon which 

Greg and Mark rely does not speak to the burden of proof, 

but, rather, to witness credibility. The trier of fact’s assessment of witness credibility goes to the weight to be given the 

testimony and is but a step in determining the ultimate question of whether a party has met the requisite burden of proof, 

whatever that may be. See Schluter v. State, 151 Neb. 284, 37 

N.W.2d 396 (1949).

[7] In any event, the burden of proof applied by the district 

court is immaterial in this case. In a review de novo on the 

record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue. In re Claims Against 

Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 (2015). As 

the following analysis demonstrates, upon a de novo review, 

we find that clear and convincing evidence supported the district court’s determinations concerning mental incapacity and 

undue influence.

(iii) Undue Influence

Greg and Mark assign that the district court erred in finding that Molly was subject to undue influence when she executed the transactions in October 2017 that favored Greg and 

included Mark. In light of the evidence and the district court’s 

credibility determinations, we disagree.

[8-10] The elements necessary to warrant the rejection of 

a written instrument on the ground of undue influence are 

(1) that the person who executed the instrument was subject 

to undue influence, (2) that there was opportunity to exercise 

undue influence, (3) that there was a disposition to exercise 
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undue influence for an improper purpose, and (4) that the result 

was clearly the effect of such undue influence. See Miller v. 

Westwood, supra. 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. Goff v. Weeks, 246 Neb. 

163, 517 N.W.2d 387 (1994). 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. Mock v. Neumeister, 296 

Neb. 376, 892 N.W.2d 569 (2017).

Applying these principles here, we conclude upon our de 

novo review that there was clear and convincing evidence that 

Molly was subject to undue influence when she executed the 

October 2017 financial transactions. The evidence of Molly’s 

children and the special administrator showed that Greg did not 

have a means of supporting himself. He had relied on Molly 

for his living expenses since 2009 and, to Molly’s irritation, 

had a history of trying to treat Molly’s assets as his own. She 

had also refused Greg’s suggestion that she include Mark in 

her estate plan. Molly had consistently expressed, as late as 

September 2017, that she wanted the vast majority of her assets 

divided between her own children when she died and that she 

had arranged her finances and remained single with that goal 

in mind.

In October 2017, Molly’s health deteriorated significantly. 

During this time, Molly experienced periodic delirium. 

Although no expert could pinpoint when the delirium occurred 

relative to the disputed transactions, Molly was subject to 

multiple possible causes of delirium during the relevant time, 

including fentanyl doses that lasted for 3 days. Jensen saw 

Molly frequently and noticed that she could not focus or make 

decisions during the last month of her life and that she did not 

recognize him when he visited her on October 10. On October 

12, the bank manager who assisted with one of the disputed 

transactions opined that Molly did not have the strength to 
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do things on her own and did not appear to be acting of her 

own volition: Greg had to help Molly walk, did all of the talking, and held Molly’s hand to help her sign the papers. The 

same day, Courtney spoke to Molly and could not understand 

her because her speech was garbled. A.J. too had difficulty 

understanding Molly in October 2017. Troilo similarly testified 

that she spoke to Molly once after September 2017 and that 

Molly was only able to respond “uh-huh” and “huh-uh.”

The evidence indicates that as Molly’s health deteriorated, 

Greg, either alone or in cooperation with his family, orchestrated a series of transactions to transfer the bulk of Molly’s 

wealth to him upon her imminent death. The transactions 

coincided with Molly’s inability to resist outside influence. 

They were executed in the presence of Greg and his family, 

who stood to benefit the most from the transactions. Greg 

and Mark would receive substantial assets, and Labart would 

no longer have to support Greg financially. By contrast, the 

transactions significantly diminished the interests of Molly’s 

children, and until her death, the transactions were kept secret 

from her close friends and family, contact with whom Greg 

appeared to curtail during Molly’s final days. The effect of the 

transactions was contrary to the wishes that Molly had unwaveringly expressed up until that point and that had previously 

governed her behavior.

Greg and Mark do not dispute there was evidence at trial 

to support this conclusion. Instead, they argue on appeal that 

evidence they presented as to Molly’s wishes was more credible and entitled to more weight. We recognize that witnesses 

called and relied upon by Greg and Mark offered a much different narrative regarding Greg and Molly’s actions in October 

2017. Based on a meeting on October 6, they characterized 

Molly as an independent leader in a plan for her assets that the 

disputed transactions furthered. These witnesses called by Greg 

and Mark testified that Molly seemed coherent at the time the 

transactions were executed. Greg and Mark insist that these 

witnesses gave the most credible evidence on the subject and 
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that, in light of it, the district court was required to find a lack 

of undue influence. We disagree.

[11] Witness credibility and the weight to be given a witness’ testimony are questions for the trier of fact. See Huffman 

v. Peterson, 272 Neb. 62, 718 N.W.2d 522 (2006). The evidence presented by the parties portrayed two very different 

accounts as to Molly’s condition and actions in October 2017. 

The district court had the opportunity to observe the witnesses 

who testified firsthand and expressly determined that the witnesses for Molly’s children and the special administrator were 

more credible than those called by Greg and Mark. We believe 

it appropriate to give weight to the district court’s credibility 

finding, as we may even under a de novo review. See Mock v. 

Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). Given the 

weight we give this credibility assessment and the evidence 

in the record summarized above, we conclude that the district 

court did not err in finding the October 2017 financial transactions invalid due to undue influence.

The district court and the parties all appear to assume that 

just as the financial transactions could be declared invalid if 

Molly’s children and the special administrator demonstrated 

undue influence, so too could the marriage. That is not so clear 

to us. We do not appear to have ever held that a personal representative or special administrator of an estate has standing to 

seek the annulment of a decedent’s marriage based on undue 

influence alone. Further, a majority of jurisdictions have held 

that an action to annul a marriage on the ground of fraud can 

only be brought by the defrauded spouse while both parties to 

the marriage are living. See Morris v. Goodwin, 230 Md. App. 

395, 148 A.3d 63 (2016). This rule is based on the distinction 

between void and voidable marriages. Id. This court has recognized that distinction and has said that a marriage is merely 

voidable “when it has legal imperfections in its constitution 

which can be inquired into only during the lives of both of 

the parties.” Christensen v. Christensen, 144 Neb. 763, 766, 

14 N.W.2d 613, 615 (1944). We have described the doctrine 
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of undue influence as “not dissimilar to fraud.” In re Estate 

of Price, 223 Neb. 12, 18, 388 N.W.2d 72, 77 (1986). And we 

are not aware of a statute providing that marriages procured by 

fraud or undue influence are void. Cf. Neb. Rev. Stat. § 42-103 

(Reissue 2016).

Although we have questions about whether Molly’s children or the special administrator have standing to seek the 

invalidation of the marriage based on undue influence alone, 

we need not resolve those questions here. There is no doubt 

that the marriage could be declared void if Molly was found 

to lack the requisite mental capacity. See § 42-103(2). See, 

also, Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 

(1980). And, as we will explain in the following section, we 

find the district court correctly concluded that Molly lacked 

the requisite capacity to marry Greg and complete the disputed 

financial transactions.

(iv) Mental Capacity

[12-15] The district court also declared the marriage and 

disputed financial transactions invalid on the grounds that 

Molly lacked the requisite mental capacity. In order to set 

aside an instrument for want of mental capacity on the part of 

the person executing it, the burden of proof is upon the party 

asserting incapacity to establish that the mind of the person 

was so weak or unbalanced when the instrument was executed 

that the person could not understand and comprehend the 

purport and effect of what he or she was doing. See Dunbier 

v. Rafert, 170 Neb. 570, 103 N.W.2d 814 (1960). Similarly, a 

marriage contract will not be declared void for mental incapacity to enter into it unless there existed at the time of the 

marriage such a want of understanding as to render a party 

incapable of assenting thereto. See § 42-103(2). See, also, 

Edmunds v. Edwards, supra. Mere weakness of mind is not 

sufficient unless there be such a mental defect as to prevent 

the party from comprehending the nature of the marriage contract and from giving free and intelligent consent to it. See 
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id. A marriage is valid if the party has sufficient capacity to 

understand the nature of the contract and the obligations and 

responsibilities it creates. Id.

Here, Molly’s children and the special administrator presented clear and convincing evidence to show that Molly 

lacked the requisite mental capacity to marry Greg and execute the transactions in October 2017. There was ample evidence that until at least September 2017, Molly had consistently maintained that she would not marry again and that she 

intended to leave all of her assets to her children when she 

died, with the exception of remarking that she should probably 

leave Greg a relatively small amount. The marriage and the 

disputed transactions, which occurred between October 12 and 

20, 2017, contravened these longstanding wishes and occurred 

at a time when, according to an expert for Molly’s children and 

the special administrator, Molly experienced periodic delirium 

related to her illness and treatment. More than one of these 

causes, which included the 3-day doses of fentanyl, were likely 

affecting Molly simultaneously. Molly’s delirium was evident 

to lay people. Jensen, who frequently visited Molly, observed 

that Molly lost the ability to focus and make decisions during 

the last month of her life, when the marriage and transactions 

occurred. Jensen testified that when he saw Molly on October 

10, she did not know him. Two days later, the bank manager 

who assisted with adding Greg to Molly’s bank accounts 

thought it did not seem “right” when he observed that Greg 

helped Molly walk, did all of the talking, and held Molly’s 

hand so that she could sign the papers. No one disputes that by 

October 21, Molly was mentally incapacitated.

Greg and Mark make the same type of arguments with 

respect to mental capacity that they make regarding undue 

influence. Primarily, they argue that because their medical 

expert offered an opinion based on his review of Molly’s 

medical records and deposition testimony that Molly did not 

lack mental capacity prior to October 20, 2017, and the expert 

called by Molly’s children and the special administrator opined 
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only that Molly experienced periodic delirium prior to that 

date, their expert’s testimony must be given more weight. We 

disagree. As we have noted, the district court expressly found 

that the witnesses called by Molly’s children and the special 

administrator were more credible than those called by Greg 

and Mark. The opinion of Greg and Mark’s medical expert was 

based, at least in part, on the deposition testimony of witnesses 

Greg and Mark called to testify at trial. We again believe it 

appropriate to give weight to the district court’s credibility 

finding. See Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 

569 (2017).

Given the district court’s credibility assessment, the evidence of Molly’s mental incapacity at the time of the marriage 

and disputed transactions, and the evidence that the marriage 

and disputed transactions ran contrary to the plans Molly 

consistently expressed to her friends and family through the 

years, we find that there was clear and convincing evidence 

that Molly lacked the capacity to marry Greg or complete the 

disputed financial transactions.

3. Acceptance of Benefits

After Greg and Mark filed their appeal, Molly’s children 

and the special administrator filed a motion for summary dismissal. According to affidavits, Mark had taken possession of 

the boat at issue after the judgment, even though counsel for 

Molly’s children and the special administrator had informed 

counsel for Greg and Mark that ownership of the boat would 

be an issue in any appeal. They argued that this constituted 

Greg and Mark’s acceptance of the benefits of the judgment 

and merited dismissal of their appeal. We overruled the motion 

for summary dismissal but reserved the issue of acceptance of 

benefits until plenary submission on appeal. Having rejected 

the arguments raised by Greg and Mark’s appeal, we need not 

address the contention that they waived their right to appeal 

by postjudgment actions related to the boat. See Brumbaugh v. 

Bendorf, 306 Neb. 250, 945 N.W.2d 116 (2020).
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4. Resulting Trust for Boat

One matter concerning the boat remains. On cross-appeal, 

the special administrator assigns that the district court erred in 

declining to find that Mark held title to the boat as a trustee 

of a resulting trust and in imposing a burden on the special 

administrator to prove that the boat was not a gift from Molly 

to Mark. As we will explain, we conclude that the evidence 

shows the existence of a resulting trust and that any presumption of a gift was rebutted.

(a) Additional Background

At trial, the parties presented evidence about the boat. Mark 

testified that Greg, Mark, and A.J. participated in finding a 

boat to purchase in Florida. It is undisputed that in 2014, Molly 

paid the entire purchase price of $119,000, though Greg signed 

the purchase agreement. Mark testified that shortly thereafter, 

Molly presented him with a title application and informed him 

that she was going to put his name on the title for the boat. 

According to Mark, Molly told him at that time that she wanted 

Mark’s name on the title because A.J. did not know how to 

drive a boat. Mark’s name was put on the title, and the boat 

remained in Florida, while Mark resided in Nebraska.

Mark confirmed that other than offering to pay for fuel while 

using the boat, he had not paid for insurance, maintenance, or 

any other major expenses. Insurance records for the boat listed 

Greg as the owner. Mark testified that he considered the boat to 

be his, but he let Molly and Greg use it whenever they wanted. 

Mark stated that he viewed the boat as a gift from Molly to 

him, but he did not report receiving a gift of that value on his 

tax returns or take deductions for depreciation of the boat. To 

Mark’s knowledge, Molly did not give either of her children a 

similar gift during the same timeframe.

A.J. testified that the boat was titled in Mark’s name for 

Molly’s tax purposes because Mark did not own a second home 

like Molly did. According to A.J., Molly never indicated that 

the boat belonged to Mark; it was always A.J.’s understanding 

that the boat belonged to Molly.
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According to Greg’s deposition testimony, Molly put the 

boat in Mark’s name so that Mark could claim it as a vacation 

home and deduct it on his taxes and because Mark, like Greg, 

held a specialized license to operate the boat, while Molly and 

her children did not. Greg explained that one of Molly’s bank 

accounts was used principally for boat expenses.

As mentioned earlier, around the time Molly purchased the 

boat, she rejected Greg’s suggestion that she include Mark 

in her estate plan, stating that Mark had a mother of his own 

for that. A friend of Molly’s testified that the suggestion had 

caused tension between Greg and Molly and made Molly 

unhappy. Molly had also resisted paying for Mark and his wife 

to travel to Florida.

The district court determined that Molly’s children and the 

special administrator had failed to establish the elements of 

a resulting trust and had not made the required showing that 

the boat was not a gift. Instead, the district court found that 

Molly initially put the boat in Mark’s name for her own tax and 

financial advantage and did little to nothing to exert ownership 

thereafter. The district court noted that there were many possible reasons that Molly titled the boat in Mark’s name, but 

refused to “engage in speculation regarding Molly’s intent and 

plans for the boat.”

(b) Standard of Review

[16] Actions to declare a resulting trust are in equity. See 

Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007). 

In an appeal in an equity action, it is the duty of this court to 

try issues of fact de novo upon the record and to reach an independent conclusion thereon without reference to the findings 

of the district court. Biggerstaff v. Ostrand, 199 Neb. 808, 261 

N.W.2d 750 (1978).

(c) Analysis

On cross-appeal, the special administrator admits that Molly 

titled the boat in Mark’s name. However, he argues that the 

boat was not an unconditional gift from Molly to Mark and 
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that instead, Mark was holding the boat in a resulting trust for 

the benefit of Molly’s estate. Mark counters that the evidence 

shows the opposite scenario and supports the district court’s 

ruling on the issue.

[17-19] A resulting trust is one raised by implication of law 

and presumed always to have been contemplated by the parties; 

the intention of the resulting trust is to be found in the nature 

of their transaction, but not expressed in deed or instrument 

of conveyance. Wait v. Cornette, 259 Neb. 850, 612 N.W.2d 

905 (2000); Brtek v. Cihal, 245 Neb. 756, 515 N.W.2d 628 

(1994). Where a transfer of property is made to one person 

and the purchase price or consideration was paid by another 

person, a resulting trust arises in favor of the person who made 

the payment or provided consideration. See id. The court will 

impose a resulting trust when the circumstances surrounding 

a conveyance make it clear that the parties intended such a 

result. Superior Hybrids Co. v. Carmichael, 214 Neb. 384, 333 

N.W.2d 911 (1983). The burden is on the one claiming the 

existence of a resulting trust to establish the facts upon which 

it is based by clear and satisfactory evidence. Id.

Upon our review of the evidence, we conclude that the 

special administrator met the burden of showing a resulting 

trust for the boat. The parties agree that Molly paid the purchase price for the boat and titled it in Mark’s name, and the 

surrounding circumstances show that she intended a resulting 

trust. The rationale for a resulting trust is that individuals seldom give consideration to receive nothing. See id. And there 

was evidence that Molly titled the boat in Mark’s name for 

purposes that benefited her. Mark himself testified that when 

Molly presented him with the title application, she said she 

wanted his name on the title because unlike A.J., Mark knew 

how to operate the boat. Further, A.J. suggested that Molly 

titled the boat in Mark’s name for tax purposes. Greg’s deposition testimony generally corroborated these motives. Finally, 

despite the boat’s being titled in his name, Mark did not 

pay any of the major expenses associated with it, and Molly 
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maintained a bank account that was mainly used for paying 

boat expenses.

We have held that where a transfer of property is made to 

one person and another pays the purchase price in order to 

accomplish an illegal purpose, a resulting trust does not arise 

if the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has 

entered into an illegal transaction. Lewis v. Poduska, 240 Neb. 

312, 481 N.W.2d 898 (1992), quoting Restatement (Second) 

of Trusts § 444 (1959). No one, however, contends that the 

arrangement concerning the boat was founded on an illegal 

purpose or presented evidence to that effect.

We have also said that a resulting trust may not arise when 

the parties are sufficiently close so as to give rise to a presumption that a gift was intended. See Brtek v. Cihal, 245 Neb. 756, 

515 N.W.2d 628 (1994). The special administrator assigns that 

the district court erred in requiring proof that the boat was not a 

gift. Mark describes his relationship with Molly as sufficiently 

close to give rise to the presumption that Molly intended to gift 

the boat to him. We question whether this was the case. Mark 

was an adult when Greg and Molly began living together, and 

Greg and Molly were unmarried when the boat was titled in 

Mark’s name. Where the parties’ relationship is more remote 

than parent and child, courts generally do not presume a gift. 

See Ronald Chester et al., The Law of Trusts and Trustees 

§ 460 (rev. 3d ed. 2005). This is because even where affection 

exists, the payor has no legal duty to support the grantee, and 

the inference that a gift was intended is not strong, especially 

where the payor has closer relatives than the grantee. Id.

Even assuming, without deciding, that Mark showed his 

relationship with Molly was sufficiently close to give rise to a 

presumption that Molly intended the boat as a gift to him, some 

of the same evidence that supports the existence of a resulting trust, along with other evidence, rebuts any presumption 

that the boat was a gift. See Brtek v. Cihal, supra. There was 

evidence that Molly resented the expectation that she should 
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pay for Mark’s travel to Florida, and around the time Molly 

purchased the boat, she rejected Greg’s suggestion that she 

include Mark in her estate plan, saying that Mark had his own 

mother from whose estate plan he could benefit. Mark admitted 

that to his knowledge, Molly made no gift that was similar to 

a boat to A.J. or Courtney, who were more natural recipients 

of such a substantial gift from Molly. Mark’s position that the 

boat was a gift is further diminished by evidence that Mark’s 

use of the boat was not exclusive and that Molly cited Mark’s 

ability to operate the boat and tax purposes as reasons for 

titling it in his name. Finally, Mark did not pay taxes and maintenance costs for the boat.

Based on our conclusion that the special administrator met 

his burden of showing that Molly intended a resulting trust as 

to the boat and that the evidence rebutted any presumption of 

a gift, we reverse, and remand, in part, with directions to enter 

an order consistent with this opinion.

V. CONCLUSION

For the foregoing reasons, we affirm the district court’s findings and order regarding mental incapacity and undue influence, but in part reverse, and remand with directions to enter an 

order concerning the boat that is consistent with this opinion.

Affirmed in part, and in part reversed 

and remanded with directions.