- 524 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

In re Eileen Ryan Revocable Trust. 

Constance M. Ryan, appellant, v. 

The Ryan Foundation et al., appellees.

___ N.W.3d ___

Filed May 3, 2024. No. S-23-354.

1. Decedents’ Estates: Appeal and Error. Appellate review under the 

Nebraska Probate Code is an issue-specific approach.

2. Trusts: Equity: Appeal and Error. Absent an equity question, an 

appellate court reviews trust administration matters for error appearing on the record; but where an equity question is presented, appellate 

review of that issue is de novo on the record.

3. Declaratory Judgments. Whether an action for declaratory judgment is 

to be treated as one at law or one in equity is to be determined by the 

nature of the dispute. The test is whether, in the absence of the prayer 

for declaratory judgment, the issues presented should properly be disposed of in an equitable action, as opposed to a legal action.

4. Wills: Trusts: Judgments: Appeal and Error. The interpretation of the 

words in a will or a trust presents a question of law. In instances when 

an appellate court is required to review cases for error appearing on the 

record, questions of law are nonetheless reviewed de novo on the record.

5. Equity: Reformation: Appeal and Error. A proceeding to reform 

a written instrument is an equity action. Because reformation is an 

equity issue, an appellate court reviews a reformation issue in a trust 

administration proceeding de novo on the record. In a review de novo 

on the record, an appellate court reappraises the evidence as presented 

by the record and reaches its own independent conclusions with 

respect to the matters at issue.

6. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

Nebraska Supreme Court Online Library

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

07/10/2024 06:09 PM CDT
- 525 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

7. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

8. Declaratory Judgments: Parties. When declaratory relief is sought, 

it is a statutory requirement that all persons shall be made parties who 

have or claim any interest which would be affected by the declaration.

9. Parties: Words and Phrases. A party is “indispensable” when the party 

has an interest in the controversy to an extent that such party’s absence 

from the proceedings prevents the court from making a final determination concerning the controversy without affecting such party’s interest.

10. Trusts: Parol Evidence: Reformation. Parol evidence can be used in 

actions seeking reformation of trust instruments, and a court may rely on 

such extrinsic evidence.

Appeal from the County Court for Douglas County: Thomas 

K. Harmon, Judge. Affirmed.

Daniel J. Welch and Damien J. Wright, of Welch Law Firm, 

P.C., for appellant.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellee Steven Ryan.

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

and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Constance M. Ryan filed a petition in the county court for 

Douglas County seeking to interpret and declare rights or 

reform the trust instrument of her late mother, Eileen A. Ryan. 

At the center of this appeal are competing interpretations of 

a provision that bequeathed $5 million in what is referred 

to as “Countable Assets” to each of Eileen’s five children. 

Constance maintained she had not yet received the full amount 

of Countable Assets. Constance specifically argued that certain inter vivos gifts she had received during Eileen’s lifetime 

were intended by Eileen to be separate and distinct from the 

testamentary bequests made in Eileen’s trust instruments and 
- 526 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

that therefore, such gifts would not reduce the amount she 

would receive under the Countable Assets provision. Based 

on the language of the trust instrument and evidence, the 

county court found that Constance had already received more 

than the $5 million due in Countable Assets. The county court 

granted summary judgment against Constance on all issues 

and dismissed Constance’s petition. Constance appeals. We 

affirm the orders of the county court.

II. STATEMENT OF FACTS

On October 19, 2007, Eileen executed the “Third Amended 

and Restated Trust Agreement” (Trust Agreement) that created the Eileen Ryan Revocable Trust. The Trust Agreement 

used a marital and family trust arrangement such that if Eileen 

predeceased her husband, Wayne L. Ryan, her assets would be 

divided into “marital” and “family” shares. The marital and 

family shares would then be further divided into subtrusts. 

The assets would be held in subtrusts for the remainder of 

Wayne’s lifetime, with provisions for distribution of income 

or principal under certain circumstances.

Eileen died in 2013, at which point the Eileen Ryan 

Revocable Trust was created and funded. This proceeding concerns a portion of the Trust Agreement governing the Eileen 

Ryan Marital Trust (Marital Trust) that bequeathed $5 million 

in Countable Assets to each of Eileen’s children. Eileen and 

Wayne had five children: Constance, Timothy Ryan, Stacy 

Ryan, Carol Ryan, and Steven Ryan (collectively the children). 

Only the Countable Assets provision in the Marital Trust is 

specifically at issue in this case, and we sometimes refer to the 

provision at issue as falling under the Trust Agreement for ease 

of reference.

After Wayne died in 2017, the children began disputing 

the Countable Assets bequest, some asserting that the $5 

million bequest had already been satisfied by amounts each 

child previously received from “Grantor Retained Annuity 

Trusts” (GRATs) established by Eileen and Wayne prior to 

Eileen’s death.
- 527 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

1. The Contested Trust 

Language of Section 9

Below, we set forth relevant portions of the Trust Agreement 

concerning the Countable Assets included in Eileen’s bequests 

to each of the children. Section 9(e)(i) of the Trust Agreement 

provided that the amount distributed to a particular child of the 

settlor would be “[the] amount, if any, as needed at the time 

of the death of the survivor of Settlor and Settlor’s husband 

to give [$5 million] in Countable Assets (as defined below) to 

each of Settlor’s children.” Section 9(e)(i) explained that

[t]o the extent that the Wayne L. Ryan Revocable Trust 

Agreement contains a similar bequest, the total of such 

bequests per child shall be [$5 million] and, to the extent 

assets are available within the Wayne L. Ryan Revocable 

Trust, shall be satisfied first pursuant to the Wayne L. 

Ryan Revocable Trust Agreement.

Countable Assets were defined in section 9(e)(i)(1) as follows:

“Countable Assets” for purposes of computing this [$5 

million] shall include any amount(s) currently distributable to a child pursuant to other provisions of the Eileen 

Ryan Revocable Trust or the Wayne L. Ryan Revocable 

Trust, any amount passing to Settlor’s children pursuant to any Irrevocable Trust which either Settlor and/

or Settlor’s husband have established during their lifetimes, and any amounts passing automatically to any of 

Settlor’s children by reason of either of the deaths of 

Settlor and/or Settlor’s husband by virtue of beneficiary 

designation, survivorship, payable on death transfer or 

joint title (or joint ownership). Countable Assets shall 

also include any assets, at their current values, from any 

of the above sources even if not currently distributable 

to such child if the only reason such amounts are not 

currently distributable is because the beneficiary has not 

reached a required age for distribution. Any debt owing 

to Settlor by a child, as evidenced by a promissory note 

or other loan documentation, shall be extinguished and 
- 528 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

the amount of remaining unpaid principal and accrued 

interest, if any, otherwise due and owing to Settlor shall 

count toward such [$5 million] for such child.

(Emphasis supplied.)

The Trust Agreement was written and updated several times. 

The final and controlling version was made on October 19, 

2007, and the Countable Assets provision contained in the 

Marital Trust remained substantially the same as it was in 

a 2004 version of the Trust Agreement. In the 2007 Trust 

Agreement, the residuary from the bequest of Countable Assets 

would be split one-half to the Ryan children and one-half to 

The Ryan Foundation.

2. The GRATs

In July 2007, Eileen and Wayne each implemented GRATs 

funded by Streck, Inc., shares. The record shows that GRATs 

are a type of irrevocable gifting trust that allow a grantor to 

pass wealth to the next generation with little or no gift tax cost. 

GRATs allow a grantor to transfer property to a beneficiary 

while retaining the right to an annuity from the transferred 

property. Badgley v. U.S., 957 F.3d 969 (9th Cir. 2020). The 

grantor creates an irrevocable grantor trust for a fixed term of 

years, transfers assets into it, and designates trustees and beneficiaries. Id. The grantor receives an annuity for a specified 

term of years. Id.

In earlier proceedings in this case, and prior to Constance’s 

present petition, the county court made a specific finding that 

each of the children had received 2,665,346 shares of Streck 

from the GRATs of Eileen and Wayne. At that time, the court 

valued the shares of each child at $7,383,008.

3. Proceedings

Constance petitioned the county court to interpret the trust 

instrument and declare rights or to reform the trust. The petition alleged that a dispute existed as to the interpretation of 

the provisions of section 9 regarding the Countable Assets 

bequest because other beneficiaries had asserted that the 
- 529 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

bequest had been satisfied by distributions that the children 

received in 2009 from the GRATs. The petition alleged that 

such interpretation was contrary to the language of the trust 

instrument and contrary to Eileen’s actual intention that each 

of the children would receive $5 million from the Marital 

Trust. To the extent the language of the trust instrument did 

not reflect Eileen’s actual intent, the petition also sought reformation to bring certain Trust Agreement provisions concerning the Marital Trust in line with Eileen’s intentions. See Neb. 

Rev. Stat. § 30-3841 (Reissue 2016). See, also, Unif. Trust 

Code § 415, 7D U.L.A. 176 (2018).

4. Cross-Motions for 

Summary Judgment

On January 28, 2022, Constance filed a motion for summary 

judgment. On July 21, 2022, Steven, acting as personal representative of Wayne’s estate (Personal Representative), filed 

a motion for partial summary judgment as to the interpretation of the trust. Through counsel, The Ryan Foundation and 

Timothy, Carol, and Steven, acting individually, filed joinders 

to the motion filed by the Personal Representative. Present 

at the hearing on the motions were counsel for Constance; 

Timothy, Carol, and Steven; the Personal Representative; The 

Ryan Foundation; First National Bank of Omaha, the current 

trustee (FNBO-Trustee); and the Attorney General’s office.

The county court admitted affidavits and extensive documentary evidence. Constance offered extrinsic evidence to 

support her argument for reformation of Eileen’s trust. The 

extrinsic evidence includes estate planning memorandums, 

other versions of the Trust Agreement, and affidavits, including Constance’s affidavit testimony regarding meetings she 

attended at which the trust was discussed. They were offered 

for the limited purpose of determining the question of whether 

the Trust Agreement should be reformed.

In an order filed March 24, 2023, the county court determined that the Trust Agreement was not ambiguous and found 

that Eileen’s intent could be clearly ascertained from the 
- 530 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

language of the bequest. It noted that Eileen was a sophisticated businesswoman, as well as an experienced creator of 

trusts, and that the Trust Agreement was executed after Eileen 

consulted privately with counsel. The court’s order addressed 

the issue of whether the GRATs were includable as irrevocable trusts under the second clause of section 9(e)(i)(1). The 

court determined that the amounts the children received from 

the GRATs were Countable Assets because they satisfied the 

trust language as “any amount passing to Settlor’s children 

pursuant to any Irrevocable Trust which either Settlor and/or 

Settlor’s husband have established during their lifetimes.”

Our record shows that the proceedings in this matter continued for several years prior to the present motions and that 

some of the issues in the matter before us implicate disputes 

regarding when and how shares of Streck stock should be 

valued. The county court found that assets received from the 

GRATs satisfied the distributions of $5 million to Constance 

and the other children. The court found that Constance was 

not entitled to additional assets under equalizing provisions 

in the Trust Agreement. The court rejected Constance’s argument to the effect that distributions from the GRATs were inter 

vivos rather than testamentary gifts and, in her view, were 

ineligible to be treated as Countable Assets. The county court 

granted the partial summary judgment motion filed by the 

Personal Representative.

Subsequently, Constance moved to alter or amend the order. 

At the hearing on the motion, the parties made stipulations and 

jointly asked the county court to grant the motion to alter or 

amend all issues presented, resulting in rulings to the effect 

that the Personal Representative’s motion for partial summary 

judgment was treated as a motion for full summary judgment 

and was granted, and all issues raised in Constance’s petition 

for declaratory relief and for reformation were decided unfavorably against her. On April 27, 2023, the county court filed 

the second order that granted summary judgment on all issues 

and denied and dismissed Constance’s petition.
- 531 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

In its April 27, 2023, order, the county court reiterated its 

determination that the language of the Trust Agreement was 

not ambiguous. It further determined that Constance did not 

present the court with evidence to create a question of fact 

as to whether, through mistake, the trust failed to contain 

the terms that Eileen intended. It found no genuine issue of 

material fact as to whether a mistake of fact or law affected 

the specific terms of the document or were inconsistent 

with Eileen’s intent at the time the trust was created. See 

§ 30-3841.

5. Motion in Limine

Also relevant in this appeal are issues stemming from a 

motion filed by Constance prior to the hearing on the motions 

for summary judgment. Constance’s motion in limine challenged Steven’s participation and asserted that Steven, acting 

as the Personal Representative, “is not a beneficiary” and “is 

not an interested party.” The motion in limine sought to prohibit any “evidence, argument, questioning of witnesses, or 

statements of counsel referring or relating to the Estate’s tax 

filing, tax payment, or alleged IRS ‘approval’ of its tax filing.” 

Steven, as the Personal Representative, had appeared in prior 

proceedings in this matter for several years prior to the motions 

for summary judgment, and notably, his motion for summary 

judgment herein was joined by some of the other children and 

other parties. The court denied Constance’s motion in limine 

and found that the Personal Representative’s administration 

of Wayne’s estate and its obligation for estate and inheritance 

taxes owed by Eileen’s estate are intertwined matters. Steven 

was permitted to introduce evidence of valuations of assets 

and the process by which tax filings on behalf of Wayne’s 

estate were prepared pursuant to court order in collaboration 

with the FNBO-Trustee and the Attorney General. As part of 

this tax filing, Countable Assets were valued, calculated, and 

accepted by an Internal Revenue Service determination, the 

Attorney General, the trustee for federal estate tax purposes, 
- 532 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

the Douglas County Attorney, and the county court for inherit

ance tax purposes.

Constance appeals from the orders of March 24 and April 

27, 2023. The Personal Representative filed a brief responding 

to Constance’s assignments of error.

III. ASSIGNMENTS OF ERROR

Constance generally claims that the county court erred 

when it granted summary judgment against her and denied and 

dismissed her petition. Constance specifically claims, summarized and restated, that the county court erred when it determined that (1) the GRATs distributed to the children prior to 

Eileen’s death were irrevocable trusts and satisfied Eileen’s 

Countable Assets bequest of $5 million to each of the children 

and (2) the evidence did not require reformation of the trust 

instrument. She further claims that (3) the court erred when 

it permitted Steven, acting as the Personal Representative 

of Wayne’s estate, to offer evidence and argument on the 

Countable Assets issue.

IV. STANDARDS OF REVIEW

[1] Appellate review under the Nebraska Probate Code is 

an issue-specific approach. See In re Margaret L. Matthews 

Revocable Trust, 312 Neb. 381, 979 N.W.2d 259 (2022).

[2] Absent an equity question, an appellate court reviews 

trust administration matters for error appearing on the record; 

but where an equity question is presented, appellate review of 

that issue is de novo on the record. Id.

[3,4] Whether an action for declaratory judgment is to be 

treated as one at law or one in equity is to be determined by 

the nature of the dispute. Id. The test is whether, in the absence 

of the prayer for declaratory judgment, the issues presented 

should properly be disposed of in an equitable action, as 

opposed to a legal action. Id. The interpretation of the words 

in a will or a trust presents a question of law. In re Estate of 

Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021). In instances 

when an appellate court is required to review cases for error 
- 533 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

appearing on the record, questions of law are nonetheless 

reviewed de novo on the record. In re William R. Zutavern 

Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

[5] A proceeding to reform a written instrument is an 

equity action. In re Trust Created by Isvik, 274 Neb. 525, 

741 N.W.2d 638 (2007). Because reformation is an equity 

issue, an appellate court reviews a reformation issue in a 

trust administration proceeding de novo on the record. See id. 

In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches 

its own independent conclusions with respect to the matters 

at issue. Id.

[6,7] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 

39 (2023). In reviewing a summary judgment, an appellate 

court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. Id.

V. ANALYSIS

In this appeal, Constance repeats her arguments made below, 

including that the Countable Assets in the Trust Agreement 

do not include completed lifetime gifts such as the distributions from the GRATs. Constance claims that the county court 

improperly “relied upon a technical definition” when it found 

that the Trust Agreement was unambiguous, brief for appellant at 36, and instead should have found that Eileen’s actual 

intent was for the children to receive an additional $5 million, 

even if each child had received assets from irrevocable sources 

in Eileen’s lifetime. Alternately, Constance contends the trust 

should be reformed based on extrinsic evidence she claims 

demonstrates Eileen’s true intentions.
- 534 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

The Personal Representative contends that the Trust 

Agreement is not ambiguous, that there are no genuinely 

controverted issues of material fact, and that Constance has 

already received the $5 million in Countable Assets. He asserts 

that Constance’s evidence was not sufficient to establish a 

genuine issue of material fact as to whether Eileen’s intent and 

the terms of the Trust Agreement in section 9(e)(i)(1) were 

affected by a mistake of fact or law. The county court found 

merit to the contentions of the Personal Representative, as 

do we.

1. The County Court Did Not Err When It Denied 

Constance’s Motion in Limine Concerning 

the Personal Representative

As an initial matter, we address Constance’s claim that 

Steven, acting as the Personal Representative of Wayne’s 

estate, should not have been allowed to participate in the 

present proceedings, including the filing of the motion for 

partial summary judgment. We note that other parties joined 

the motion for partial summary judgment and that the motion 

was squarely before the county court. Constance asserted that 

Steven should not have been allowed to offer evidence of the 

interpretation and valuation of the Countable Assets. Although 

there may be other impacts, Steven’s primary asserted basis 

for participation was that the outcome would affect the tax 

returns he was obligated to file as the Personal Representative 

of Wayne’s estate, which returns are impacted by the value of 

Eileen’s estate. We believe this assignment of error is without merit.

[8,9] This is an appeal from Constance’s request to declare 

rights under the Trust Agreement. When declaratory relief is 

sought, it is a statutory requirement that “all persons shall 

be made parties who have or claim any interest which would 

be affected by the declaration.” Neb. Rev. Stat. § 25-21,159 

(Reissue 2016). See SID No. 2 of Knox Cty. v. Fischer, 308 

Neb. 791, 957 N.W.2d 154 (2021). Our cases have generally 
- 535 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

described those who must be made parties as statutorily 

mandated necessary parties, interested or necessary parties, 

significant necessary parties, or necessary and indispensable 

parties. Id. A party is “indispensable” when the party has 

an interest in the controversy to an extent that such party’s 

absence from the proceedings prevents the court from making a final determination concerning the controversy without 

affecting such party’s interest. Id.

Here, the county court could not make a final determination concerning the controversy without affecting the interest 

of the Personal Representative. Neb. Rev. Stat. § 30-3812 

(Reissue 2016) allows the court to intervene in the administration of a trust, including an action to declare rights, to the 

extent its jurisdiction is invoked by an interested person or 

as provided by law. See Unif. Trust Code § 201, 7D U.L.A. 

114 (2018).

Constance argues that since a personal representative may 

lack standing to challenge an order of distribution, or appeal 

the distribution of a probate estate, see 34 C.J.S. Executors 

and Administrators § 673 (2022) and In re Estate of Craig, 

101 Neb. 439, 163 N.W. 765 (1917), then it follows that he or 

she would not be allowed to participate in an action to declare 

rights under a trust. We do not agree.

In this case, the Personal Representative was not taking 

an appeal or challenging an order of distribution but was 

participating in an action to declare rights. He had been part 

of the proceedings and participated for several years prior 

to this matter. Although Steven was not a beneficiary in his 

capacity as the Personal Representative, he was indispensable 

because the proceedings affected his interests, which, in the 

instant case, were to dutifully administer and settle Wayne’s 

estate. Eileen’s Marital Trust assets were subject to estate 

taxes under Wayne’s estate under the structure of the estate 

plan. Because Eileen’s trust was included in Wayne’s estate 

for various tax purposes, including a marital deduction, the 

size of Eileen’s trust impacted Wayne’s estate. There are other 
- 536 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

impacts on Wayne’s estate not repeated here. The county court 

had recognized the interconnectedness of the two estates for 

Nebraska inheritance tax calculations for Wayne’s estate, and 

the Personal Representative had been discharged from personal liability by the Internal Revenue Service after a determination of the tax paid. A recalculation of the Countable 

Assets would affect the Personal Representative’s duties. 

Thus, Steven was an indispensable party in this case and 

properly participated in the proceedings. This assignment of 

error is without merit.

2. Constance Received Sufficient Distributions 

in Eileen’s Lifetime to Satisfy the $5 Million 

Countable Assets Bequest in Section 9 

of the Trust Agreement

Constance asserts that we should interpret the Trust 

Agreement such that lifetime distributions such as those from 

the GRATs would not be Countable Assets under section 

9(e)(i) of the Trust Agreement. We believe the interpretation 

urged by Constance is not consistent with the unambiguous 

language of the Trust Agreement, and there is no genuine 

issue of material fact that the children received more than $5 

million in Countable Assets from, inter alia, distributions from 

irrevocable trusts such as the GRATs.

(a) Article 9(e) of the Trust Agreement 

Is Not Ambiguous

Constance urges us to find that the Trust Agreement is 

ambiguous and that the “Irrevocable Trust” in section 9(e)(i)(1) 

pertains only to assets received from irrevocable trusts after 

Eileen’s death. We decline to do so. The Trust Agreement’s 

definition of Countable Assets is not ambiguous, as the county 

court correctly determined.

Pursuant to section 9, the Trust Agreement provides that 

the amount distributed from the Marital Trust on behalf of a 

particular child of the settlor would be “[the] amount, if any, 

as needed at the time of the death of the survivor of Settlor 
- 537 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

and Settlor’s husband to give [$5 million] in Countable 

Assets (as defined below) to each of Settlor’s children.” We 

repeat the contested portion of section 9(e)(i)(1):

“Countable Assets” for purposes of computing this [$5 

million] shall include any amount(s) currently distributable to a child pursuant to other provisions of the Eileen 

Ryan Revocable Trust or the Wayne L. Ryan Revocable 

Trust, any amount passing to Settlor’s children pursuant to any Irrevocable Trust which either Settlor and/

or Settlor’s husband have established during their lifetimes, and any amounts passing automatically to any of 

Settlor’s children by reason of either of the deaths of 

Settlor and/or Settlor’s husband by virtue of beneficiary 

designation, survivorship, payable on death transfer or 

joint title (or joint ownership). Countable Assets shall 

also include any assets, at their current values, from any 

of the above sources even if not currently distributable 

to such child if the only reason such amounts are not 

currently distributable is because the beneficiary has not 

reached a required age for distribution. Any debt owing 

to Settlor by a child, as evidenced by a promissory note 

or other loan documentation, shall be extinguished and 

the amount of remaining unpaid principal and accrued 

interest, if any, otherwise due and owing to Settlor shall 

count toward such [$5 million] for such child.

(Emphasis supplied.)

Constance suggests several interpretations, focusing on 

the testamentary nature of the Countable Asset bequest and 

emphasizing the language of the first clause. She argues that 

phrases like “currently distributable” are testamentary in 

nature, and thus the section is “intended to capture amounts 

passing through irrevocable trusts that exist at the time of 

[Wayne’s] death.” Brief for appellant at 29. We disagree with 

this interpretation.

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

a question of law. In re Estate of Brinkman, 308 Neb. 117, 
- 538 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

953 N.W.2d 1 (2021). The clauses in section 9(e)(i)(1) are not 

uncertain, and reading the Trust Agreement as a whole does 

not make these terms ambiguous. For purposes of computing 

the $5 million, the definition of Countable Assets, as printed 

in italics and quoted above, includes “any amount passing to 

Settlor’s children pursuant to any Irrevocable Trust, which 

either Settlor and/or Settlor’s husband have established during their lifetimes.” We believe “any amount . . . pursuant 

to any Irrevocable Trust” includes the amount the children 

received from the irrevocable GRATs, and such distributions 

were therefore Countable Assets. Eileen was a sophisticated 

businesswoman and an experienced creator of trusts, and the 

Trust Agreement was executed after consulting privately with 

counsel. She was capable of excluding inter vivos gifts from 

the “Irrevocable Trusts” provision included in the Countable 

Assets, as illustrated by the previous clause that targeted 

amounts “currently distributable” at the time of Wayne’s 

death. When considering the complete provision, the reasonable interpretation is to include distributions from the GRATs 

as Countable Assets.

(b) Under Section 9’s Unambiguous Language, 

Constance Received $5 Million 

in Countable Assets

Because in earlier proceedings the county court had valued 

the shares of Streck that each child received at $7,383,008, 

the county court found that Constance had received more than 

$5 million from the GRATs distributions. The fact that the 

shares were valued at more than $5 million is not contested. 

Because these distributions were Countable Assets, there is no 

question that Constance was not entitled to additional assets 

to satisfy the $5 million bequest under the provisions in section 9.

3. Reformation of Trust

Constance also argues that regardless of whether the Trust 

Agreement was ambiguous, it should be reformed because 
- 539 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

it did not reflect Eileen’s actual intent. She relies on affidavit evidence discussing Eileen’s estate planning process and 

identifies testimony that Eileen made subsequent statements 

to the effect that her estate plan included a $5 million bequest 

to each of her children. She argues that this extrinsic evidence 

creates a genuine issue of material fact as to Eileen’s intent 

and requires reformation of the Trust Agreement. We do 

not agree.

[10] As an initial matter, we recognize that parol evidence 

can be used in actions seeking reformation of trust instruments, 

and a court may rely on such extrinsic evidence. See In re 

Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007). 

Here, Constance’s central argument is that a settlor’s subsequent acts are of significance in construing an ambiguous trust 

instrument. See, 90 C.J.S. Trusts § 230 (2020); Restatement 

(Third) of Property: Wills and Other Donative Transfers § 10.2, 

comment g. (2003). However, the Trust Agreement was not 

ambiguous, and Constance’s speculation regarding construction 

is not productive in this case.

We turn to the court’s power to reform an unambiguous 

trust agreement. Constance’s petition sought reformation under 

§ 30-3841. In this regard, Constance suggests that this statutory section empowers a court to reform an unambiguous trust 

to conform to “the settlor’s true intention,” brief for appellant at 39, which she claims is shown by extrinsic evidence. 

However, her partial excerpt of § 30-3841 does not include 

the statute’s focus on correcting mistakes. The full language of 

§ 30-3841 provides:

The court may reform the terms of a trust, even if 

unambiguous, to conform the terms to the settlor’s intention if it is proved by clear and convincing evidence that 

both the settlor’s intent and the terms of the trust were 

affected by a mistake of fact or law, whether in expression 

or inducement.

(Emphasis supplied.)
- 540 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

Thus, the question before us in this case under § 30-3841 is 

whether there exists a genuine issue of material fact concerning 

whether both Eileen’s intent and the terms of the trust “were 

affected by a mistake of fact or law, whether in expression or 

inducement.” Of course, a “‘post-execution change of mind’” 

would not afford a basis for reformation of a trust. In re Trust 

Created by Isvik, 274 Neb. at 537, 741 N.W.2d at 648 (citing 

Restatement (Third) of Property: Wills and Other Donative 

Transfers § 12.1, comment h. (2003)).

Even considering Constance’s extrinsic evidence, we do not 

agree with Constance that the issues she identifies raise a genuine issue of material fact under § 30-3841. In this proceeding on summary judgment, where Constance would have the 

burden of proof regarding reformation at trial, the Personal 

Representative as movant may satisfy its prima facie burden 

either by citing to materials in the record that affirmatively 

negate an essential element of Constance’s claim for reformation or by citing to materials in the record demonstrating that 

the evidence is insufficient to establish an essential element of 

Constance’s claim. See Clark v. Scheels All Sports, 314 Neb. 

49, 989 N.W.2d 39 (2023). The Personal Representative satisfied this burden. Constance has identified no evidence in the 

record other than speculation that shows or infers that both 

the intent and the terms of the Trust Agreement were affected 

by a mistake of fact or law. Constance’s conjectures regarding 

Eileen’s understandings are thin. After viewing the pleadings 

and evidence in the light most favorable to Constance and 

giving her the benefit of all reasonable inferences deductible from the evidence, we determine that evidence on the 

reformation issue did not present a genuine issue of material 

fact as to whether both Eileen’s intent and the terms of the 

Countable Assets provision were affected by a mistake of fact 

or law. The county court did not err when it granted summary 

judgment on the reformation issue and denied and dismissed 

Constance’s petition. Constance’s assignment of error regarding reformation is without merit.
- 541 -

Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

IN RE EILEEN RYAN REVOCABLE TRUST

Cite as 316 Neb. 524

VI. CONCLUSION

Constance’s assignment of error regarding the participation of the Personal Representative is without merit. Under 

the unambiguous language of section 9(e)(i)(1) of the Trust 

Agreement, the distribution from the irrevocable GRATs to 

Constance satisfied the $5 million Countable Assets bequest, 

and Constance is not entitled to further distribution pursuant 

to this provision. Constance has not identified evidence that 

both the intent and the terms of the Trust Agreement were 

affected by a mistake of fact or law under § 30-3841 precluding summary judgment, and the county court did not err when 

it rejected her request to reform the Trust Agreement. We 

affirm the orders of the county court.

Affirmed.

Funke, J., not participating.