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IN RE TRUST OF COOK

Cite as 28 Neb. App. 624

In re Trust of Margie E. Cook, deceased. 

Lloyd Russo and Betty Russo, husband and wife, 

appellants, v. Union Bank and Trust Co., 

Trustee of the Margie E. Cook 

Revocable Trust, appellee.

___ N.W.2d ___

Filed July 14, 2020. No. A-19-755.

1. 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.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.

3. ____: ____. An appellate court, in reviewing a judgment for errors 

appearing on the record, will not substitute its factual findings for 

those of the trial court where competent evidence supports those 

findings.

4. Decedents’ Estates: Appeal and Error. An appeal from the county 

court’s allowance or disallowance of a claim in probate will be heard as 

an appeal from an action at law. In reviewing a judgment of the probate 

court in a law action, an appellate court does not reweigh evidence, 

but considers the evidence in the 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. The probate court’s factual findings have the effect of a verdict 

and will not be set aside unless clearly erroneous.

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

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

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

Nebraska Supreme Court Online Library

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

07/21/2020 09:07 AM CDT
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court reaches a conclusion independent of the determination reached by 

the court below.

6. Actions: Parties. The purpose of Neb. Rev. Stat. § 25-301 (Reissue 

2016) is to prevent the prosecution of actions by persons who have no 

right, title, or interest in the cause.

7. Trusts. Where a trust is revocable, the settlor is in control of the trust.

8. Trusts: Parties. The plain language of Neb. Rev. Stat. § 30-3855(b) 

(Supp. 2019) suggests that the only real party in interest in a case 

involving a revocable trust would be the settlor of that trust, or perhaps 

one that represents the settlor’s interests.

9. Decedents’ Estates. A mere expectancy interest is insufficient to entitle 

a prospective heir to bring an action to recover property.

10. Trusts. Incapacity does not terminate a settlor’s power to revoke a 

trust, though it might well affect the ability of the settlor to exercise 

that power.

11. ____. Because incapacity does not affect the power to revoke a trust, a 

trust remains revocable until revoked, either by the settlor or by another 

acting in the settlor’s stead.

Appeal from the County Court for Douglas County: Thomas 

K. Harmon, Judge. Affirmed.

Tiernan T. Siems, of Erickson & Sederstrom, P.C., for 

appellants.

Darren R. Carlson and Terry A. White, of Carlson & Burnett, 

L.L.P., for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Lloyd Russo and Betty Russo appeal from an order of the 

county court for Douglas County, finding that they lacked 

standing to assert a claim for the distribution of trust proceeds 

from the Margie E. Cook Revocable Trust. Based on this 

conclusion, the county court additionally denied the Russos’ 

motion to disallow attorney fees. The county court also found 

that the issue of Margie E. Cook’s capacity was not relevant to 

the issue of standing.
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BACKGROUND

Union Bank and Trust Company (Union Bank), acting as 

trustee of the Margie E. Cook Revocable Trust, filed its petition for instruction in trust administration on September 6, 

2018, requesting direction from the county court on how to 

distribute the proceeds from the sale of an Arizona condominium (condo) previously owned by Cook. On October 12, 

the Russos filed a motion to intervene and requested an order 

requiring Union Bank to distribute the trust proceeds from 

the Arizona condo to them, pursuant to a beneficiary deed 

executed in their favor by Cook in 2015. The Russos apparently also filed a separate civil complaint against Union Bank 

that same day, but that pleading is not contained in the record 

before us.

On October 25, 2018, Union Bank filed an objection to the 

Russos’ motion to intervene, alleging that the Russos’ civil 

complaint failed to state a claim and that the Russos nevertheless lacked standing to assert such claims. Alternatively, Union 

Bank sought to consolidate the Russos’ civil complaint with the 

pending probate matter. The two matters were consolidated for 

a bench trial.

On March 8, 2019, the Russos filed a motion to disallow 

attorney fees, requesting the county court to order the law firm 

of Carlson & Burnett to disgorge fees previously paid to it. The 

Russos argued that one of the firm’s attorneys, Adam Wintz, 

served as Cook’s personal attorney and drafted certain documents at issue in the case and that therefore, Carlson & Burnett 

had an ethical conflict representing Union Bank and should not 

receive attorney fees in the matter.

On March 15, 2019, Union Bank filed a motion to dismiss 

the Russos’ civil complaint against Union Bank, alleging that 

the Russos lacked standing as contingent beneficiaries of a 

revocable trust and that the probate court had exclusive jurisdiction over the matter. The civil court granted Union Bank’s 

motion to dismiss, finding that it did not have subject matter 

jurisdiction over the Russos’ claim.
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A bench trial was held on June 25 and 26, 2019, regarding 

Union Bank’s petition for instruction in trust administration 

and the Russos’ motion to intervene.

John Atkins, vice president and senior trust officer of Union 

Bank, was called to testify on Union Bank’s behalf. Atkins 

testified that he is responsible for administering fiduciary documents such as financial powers of attorney, conservatorships, 

revocable and irrevocable trusts, and “virtually any type of 

fiduciary capacity.”

Atkins testified that Union Bank first became involved in 

Cook’s affairs when he was contacted by Wintz, an attorney 

then with Elder Law of Omaha, who asked Atkins whether 

Union Bank would be willing to serve under a financial power 

of attorney for Cook. Atkins testified that he became aware 

Lloyd was serving as Cook’s attorney in fact and that Atkins 

first met him in late June or early July 2017. Lloyd was 

coincidentally referred to Atkins and Union Bank as a possible replacement attorney in fact by an attorney in Bellevue, 

Nebraska.

A meeting was arranged between representatives of Union 

Bank and Cook at her assisted living residence at Brighton 

Gardens (Brighton) in Omaha, Nebraska, on July 7, 2017. 

Along with Atkins and his assistant, Wintz and Denise Craft 

were also present at the meeting. Atkins testified that Craft is a 

“transition specialist” for elder care whom he has worked with 

on a number of occasions since they met in the early 2000’s. 

Atkins testified that Lloyd was present at the Brighton facility 

on that date, but he did not participate in the meeting.

Atkins testified that Cook was “very clear . . . that she was 

very upset with the Russos. She did not want them involved 

as beneficiaries of her estate, and she did not want them to 

receive the Scottsdale villa.” He indicated that Cook appeared 

comfortable with him and that she was clear about her wishes 

regarding the condo and did not appear to be confused at 

the time.

A new financial power of attorney for Cook, naming Union 

Bank as Cook’s agent, was signed at the July meeting. Atkins 
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indicated that Union Bank does not serve as agent under 

health care powers of attorney, but Cook asked Craft whether 

she would serve in that role, which Craft accepted. After the 

documents had been signed, Cook was taken back to her room 

and Lloyd entered the meeting to sign his resignation of all 

fiduciary positions he held for Cook.

At a later date, Atkins spoke to Lloyd regarding whether 

Cook had an estate plan in place. Lloyd indicated that Cook 

had worked with an Omaha attorney, Niel Nielsen, on an estate 

plan. Nielsen provided Atkins with Cook’s last will and testament, her revocable trust, and a competency checklist he had 

completed with Cook.

Exhibit 8, the trust agreement for the Margie E. Cook 

Revocable Trust, dated March 9, 2017, was introduced. Article 

IX of the trust agreement provided that any interest in Cook’s 

Arizona condo that she retained at her death was to go to 

the Russos.

Exhibit 9, an “execution checklist” signed by Cook and 

Nielsen on March 9, 2017, was the only information Atkins 

received related to Cook’s competency at the time. Atkins 

testified that Cook appeared to him to be “cognitive in every 

respect” when she signed the power of attorney documents 

on July 7.

Exhibit 5, a beneficiary deed dated March 30, 2015, names 

the Russos as beneficiaries of Cook’s Arizona condo. Atkins 

testified that exhibit 5 appeared to supersede a prior beneficiary 

deed dated May 18, 2012, naming “Jack E. Stewart” as bene

ficiary of the same Arizona condo. Exhibit 7, a last will and 

testament for Cook dated November 17, 2010, named “Lynn K. 

Scott M.D.” as the beneficiary of the Arizona condo.

Atkins testified that exhibit 10 was a handwritten amendment to Cook’s trust, which in essence states that Cook did 

not want the Russos to receive the Arizona condo at her death. 

That amendment is dated July 20, 2017, and was signed by 

Cook. Atkins testified that he received the handwritten amendment from Craft and was satisfied that it met the requirements for amending Cook’s trust. Exhibit 11 reflected another 
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amendment to Cook’s trust, under which Union Bank was to 

assume the position of trustee. Exhibit 12 is a revocation of the 

May 2012 beneficiary deed.

Atkins testified that Union Bank, as trustee, moved Cook’s 

assets that otherwise would have been subject to probate 

into the trust. Prior to Union Bank’s assuming the role of 

trustee, Cook told Atkins that she did not think she would 

ever return to Arizona. Atkins contacted a real estate agent 

to list the Arizona condo for sale because Union Bank “felt it 

was in [Cook’s] best interest not to keep a piece of real estate 

that would be unoccupied.” Atkins testified that the condo 

had costs associated with insurance, real estate taxes, homeowner association dues, and maintenance and upkeep if Cook 

retained the condo. Exhibit 13 is the settlement statement that 

was prepared once the Arizona condo was sold, and it reflects 

the $136,164.84 in net proceeds Union Bank received as 

trustee from the sale.

On cross-examination, Atkins testified that he did not 

become aware of any dementia or other memory problems 

with Cook until after July 7, 2017, when Union Bank took over 

under the financial power of attorney. Atkins conceded that he 

did not look further into competency issues after Union Bank 

became Cook’s financial attorney in fact.

Atkins testified that he was not present when Craft drafted 

the handwritten trust amendment. He agreed that it was not 

Craft’s role to be preparing documents that attempted to amend 

the trust. At no point during the July 2017 meeting did Cook 

mention that she had previously signed similar estate plan documents with Nielsen in March 2017. Atkins never conducted 

any sort of competency evaluation with Cook and was unable 

to say whether Wintz or Craft did so.

On redirect examination, Atkins testified that Union Bank 

did not have any concerns regarding Cook’s competency after 

she had appointed Union Bank under the financial power 

of attorney because “if [Cook] became incapacitated at that 

time was not relevant to what [Union Bank’s] role was as 
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attorney-in-fact and eventual trustee of her trust.” At that 

point, Union Bank was already acting as attorney in fact under 

what it believed to be a valid document. Atkins perceived Cook 

to be competent during both the July 7 and July 20 meetings in 

2017. He also did not believe that Lloyd raised any concerns 

about Cook’s competency when they met in July 2017.

Craft, owner of Craft Lifestyle Management (CLM), testified 

that CLM works to transition special needs adults and senior 

citizens into accommodating living arrangements, whether by 

modifying their home or assisting with placement in other 

communities. Cook was referred to CLM in March 2017. Lloyd 

previously contacted CLM in December 2016, inquiring about 

the cost of assisted living for Cook. Craft was called upon to 

visit Cook at her Bloomfield apartment, an independent living 

apartment in Omaha. There, Craft found that Cook’s medications were scattered throughout the apartment, there was nothing in the refrigerator, and there were moldy dishes in the 

sink and that in the living room, “there [was] nowhere to get 

through.” Cook informed Craft that Lloyd was serving as her 

attorney in fact.

Craft testified that Lloyd made arrangements to move Cook 

to Brighton. Craft met with Lloyd at Brighton to have him 

sign paperwork allowing CLM to assist in the move. Lloyd 

brought Cook to Brighton the next day, but after moving some 

of Cook’s belongings into her room, Craft discovered Cook 

sitting alone in the lobby, with a swollen hand. Craft contacted 

Brighton’s director of nursing, and Cook was examined by 

Brighton’s medical staff and taken to the hospital. The Russos 

were not contacted.

Craft testified that Cook requested a meeting in July 2017 

regarding her powers of attorney. On July 7, Craft met with 

Cook, Wintz, Atkins, and Atkins’ assistant to discuss Cook’s 

health care power of attorney. Craft served as Cook’s health 

care attorney in fact going forward. Craft testified that Cook 

was “very well-prepared” and “alert” throughout the meeting. 

According to Craft, Cook appeared to know where she was 
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and specifically asked that Craft serve as her health care agent. 

Craft testified that Lloyd was not present during the meeting 

when Cook’s powers of attorney were discussed, but he came 

later after Cook left.

Craft testified that a note, introduced as exhibit 10, was 

handwritten by her except for Cook’s signature. Cook asked 

Craft to write for her, but dictated the contents of the note, 

in which Cook indicated that she did not want the Russos to 

receive the Arizona condo, nor any of her other assets. Craft 

testified that Cook first began to express concerns about the 

Russos prior to the incident where she was left alone in the 

Brighton lobby. Cook asked Craft to take the note to Union 

Bank, which Craft did.

On cross-examination, Craft testified that she first became 

aware of Cook’s dementia in September or October 2017, 

despite CLM’s accompanying Cook to medical appointments 

since May. She testified that she “[w]ould have had no reason 

to” suspect Cook had a diagnosis of dementia any time prior to 

the July 2017 meeting. Craft acknowledged that she had access 

to Cook’s medical information prior to July 2017, but did not 

avail herself of it.

Craft acknowledged that she had access to attorneys like 

Wintz and Atkins, but nevertheless assisted Cook in modifying her estate plan with the July 2017 handwritten note. Craft 

testified that she did not volunteer to fill Lloyd’s role as medical power of attorney, despite knowing he was looking for a 

replacement, because it is not CLM’s common practice to take 

on that role.

Union Bank next called Lloyd to testify. Lloyd testified that 

he and his wife, Betty, rented a condo in Arizona from midJanuary to mid-March each year. The Russos first met Cook in 

Arizona approximately 17 years before her death. The Russos 

frequently attended concerts, parades, music festivals, and 

other activities with Cook.

Lloyd testified that he handwrote exhibit 5, a transferon-death deed dated March 30, 2015, purporting to transfer 
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Cook’s Arizona condo to the Russos upon her death. He testified that Cook was visiting the Russos when she said, “‘You 

know, all these years, I come here and do things with you 

guys. You guys come to Arizona. . . . I don’t know why I 

don’t give you my condo.’” Lloyd was aware of the existing 

transfer-on-death deed that would have given Cook’s condo to 

another individual.

In November 2016, Cook asked the Russos whether they 

would be willing to serve as her attorney in fact. Lloyd testified that he believed Cook became incapacitated around June 

2017 and that her doctor wanted her to enter assisted living, 

but he was hesitant to force her into a living arrangement she 

did not want.

Lloyd testified that he decided to resign as medical attorney 

in fact after Cook moved to Brighton because of the number 

of decisions he was responsible for regarding Cook. Lloyd 

contacted Atkins at Union Bank to see if he and Union Bank 

would be able to take on the role as financial attorney in fact. 

Lloyd believed the July 7, 2017, meeting was to have Atkins 

and Cook meet before Union Bank assumed its role, but he 

said he was “blindsided” by the actual events that occurred. 

Lloyd believed that Union Bank would take over the financial 

power of attorney role and that Atkins had someone arranged 

to fulfill the medical duties. He testified that he did not know 

Craft was taking over under the health care power of attorney 

until the meeting was over. Lloyd did not believe Craft should 

serve as Cook’s health care attorney in fact.

After Lloyd’s testimony, Union Bank rested its case in chief.

Dr. Terry Davis was called to testify on behalf of the 

Russos. Davis testified that he is a forensic psychiatrist and 

also has a law degree. Davis described the practice of forensic 

psychiatry as “any place where the legal system and the mental 

health system overlap,” including questions of competency in 

legal matters.

Davis testified that he was provided with Cook’s medical records, which he reviewed to formulate a diagnosis for 
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Cook in the time leading up to her death. Davis reviewed the 

medical records dated October 17, 2016, which indicated Cook 

was suffering from “‘delusions . . . delirium’” and was sent 

to “‘Angel’s Home Health to evaluate and treat as indicated 

for increased delirium,’” “‘confusion,’” and “‘agitation and 

aggression.’” Davis was unable to determine from the medical records whether Cook was experiencing episodic or more 

continuous periods of delirium, but “she was clearly suffering 

from some significant mental impairment and cognitive impairment as far back as October of 2016.” Davis testified that the 

records revealed additional evidence that Cook was experiencing a chronic and deteriorating form of dementia.

Davis noted Cook underwent a CT scan on October 8, 2017, 

which revealed “moderate atrophy” and “deterioration of her 

brain.” Davis testified that agitation and aggression are common symptoms associated with Alzheimer’s disease. A record 

from October 24, 2016, revealed that Cook “‘continues to talk 

to her husband, who passed.’” Cook’s husband had not been 

alive for nearly 20 years at that point.

Davis noted that as of March 7, 2017, Cook’s memory was 

worsening, as evidenced by her prescription for “Namenda,” 

a medication designed to assist with memory loss. Based on 

his review of Cook’s medical records, Davis offered his professional opinion that Cook suffered from “dementia of the 

Alzheimer’s type and that she was on a progressive downhill 

course” as of March 7. He stated that “it would be highly questionable whether or not she was competent to execute legal 

documents on that date or thereafter.”

Davis further testified that someone suffering from Cook’s 

condition “might have some brief periods where she would be 

more lucid than not in some areas, but that isn’t necessarily 

going to make her competent to do things like execute a will, 

execute a trust, [or] consent to medical care.” On April 18, 

2017, Cook’s records revealed she scored 13 out of 30 points 

on the “SLUMS test,” one of several screening tests used to 

detect cognitive impairment. Davis testified that a score of 
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“anything below 14 [was] indicative of dementia.” He testified 

that as more evidence supported a diagnosis of dementia and 

Alzheimer’s disease for Cook over time, it became “less likely 

that there would be lucid intervals.”

Davis testified that when conducting a competency evalua

tion for the execution of a will or trust, he will ask more 

detailed questions than those shown in the “execution checklist” performed by Cook’s then-attorney, Nielsen. He testified 

that the contents of the checklist did not change his opinions as 

to Cook’s diagnosis and competency at the time it was administered. A May 10, 2017, nursing note from Brighton indicated 

that Cook “‘does not have the cognitive capability to make 

decisions per M.D.’” That same month, there was evidence of 

depression and suicidal thoughts by Cook, which Davis indicated “shows some serious mental disturbance.”

Davis opined that a June 7, 2017, note from Cook’s primary 

physician, Dr. Lynn Scott, “cemented” Cook’s incapacity. Scott 

wrote that Cook “‘doesn’t have a good grasp on anything,’” 

and she further referenced Cook’s need for a power of attorney 

and “‘placement in a nursing home for skilled care, medication dispensing.’” Davis further opined that Cook would not 

have been competent to execute any financial documents after 

that date.

On cross-examination, Davis agreed that the presence of 

moderate atrophy on a CT scan does not necessarily mean an 

individual has dementia. He acknowledged that on March 28, 

2017, Scott reported the findings of another physician who 

concluded Cook was competent to take care of her affairs. He 

also acknowledged that April 2017 medical entries reflected 

that Cook was “alert and oriented to self, but not to date.” He 

noted that Scott wrote, on June 7, that Cook “appeared to have 

some lucid intervals” but also “cannot recall any facts.” Davis 

agreed that there were findings by various medical professionals that Cook was alert and oriented, as well as findings to 

the contrary.
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Nielsen testified that his law practice regularly involves 

working with wills, trusts, powers of attorney, and other areas 

of estate planning. Nielsen testified that he met Cook when 

she stopped by his office in October 2016. After their initial 

meeting, Nielsen took Cook on as a client and drafted her 

health care and financial powers of attorney in November 

2016.

Nielsen testified that Lloyd was named the primary agent 

under both documents and that Betty was named the alternate 

agent. Coincidentally, the Russos were also clients of Nielsen’s 

at the time. Nielsen testified that a health care power of attorney usually becomes effective upon a determination by a doctor that the individual has become incapacitated. He indicated 

that while Cook was his client, no doctor had determined that 

she was incapacitated.

Nielsen also drafted a revocable trust and “pour-over will” 

for Cook. Cook was designated the primary trustee under the 

trust, and in the event Cook could no longer serve in that role, 

Lloyd was named first successor trustee and Betty was second 

successor trustee. The trust designated specific gifts to certain 

individuals, with the residual assets to go to the University of 

Nebraska Foundation. The trust indicated that Cook’s Arizona 

condo should be left to the Russos. At the time, a “transfer-ondeath,” or “beneficiary,” deed leaving the condo to the Russos 

was in place.

Nielsen went through an “execution checklist” with Cook in 

order to verify she had the necessary capacity to execute the 

documents. Nielsen testified that he was satisfied that Cook 

was competent at the time and understood the documents she 

was signing. He testified that if he had further concerns regarding Cook’s competency, he would have asked her to see a doctor and have an evaluation done.

Exhibit 31, a summary of Cook’s medical records between 

October 17, 2016, and October 9, 2017, was introduced. Nielsen 

testified that if he had reviewed Cook’s medical records on 

March 9, 2017, when she signed the documents, he likely 
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would have suggested that Cook seek a full evaluation by a 

physician. Nielsen testified that had a medical professional 

opined that Cook was not legally competent at the time, he 

would have relied on those opinions and would not have overseen the execution of the documents. Nielsen testified that, 

nevertheless, the documents he drafted for Cook did little to 

change the disposition of her property under previously drafted 

wills and beneficiary deeds. The purpose was to avoid any of 

Cook’s assets being subject to probate. Nielsen testified that he 

did not have any contact with Cook after March 9.

Exhibit 8, the revocable trust agreement drafted by Nielsen 

and executed by Cook on March 9, 2017, was introduced into 

evidence. Exhibit 28, the last will of Cook drafted by Nielsen 

on that same date, was also introduced into evidence. Article 

IX of the revocable trust provides, as relevant here:

Upon the death of the Settlor, the Trustee shall distribute the following bequests, which shall be net gifts after 

payment of all taxes, debts and expenses of the Settlor’s 

estate:

. . . .

2. Any interest the Settlor may own in [the Arizona 

condo], along with any contents thereof not otherwise 

disposed of by other provisions of this Trust, to [Lloyd] 

and [Betty], or the survivor of them, if living.

In reviewing Cook’s prior estate plan, Nielsen was aware 

that the Arizona condo had previously been designated to 

another individual through a transfer-on-death deed. Nielsen 

was not concerned that the beneficiary designation for the 

condo had changed three times within a 5-year period. Nielsen 

previously had conversations with Lloyd about designating 

a corporate trustee, like Union Bank, but Lloyd did not ask 

Nielsen to make any changes to Cook’s estate plan.

Edna James testified that she assisted elderly and disabled 

individuals by purchasing their groceries, preparing meals, 

and performing other tasks as needed. James testified that she 

became acquainted with Cook over a period of 5 years when 
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James was caring for an individual who lived across the hall 

from Cook. James was hired by the Russos to help care for 

Cook in June 2017.

James testified that she became familiar with the Russos 

after seeing them at Cook’s apartment. She testified that Cook 

“always talked about them, how nice they were to her, and that 

they looked out for her in Arizona. And she just — she thought 

the world of them.” She testified that Cook would frequently 

discuss leaving the Russos her condo. James testified that Cook 

was “always happy” when she was with the Russos.

The Russos’ daughter testified that she first met Cook during the summer of 2003. She testified that in the spring of 

2016, she helped Lloyd “find an airline ticket” for him to 

fly to Texas to meet Cook, because Cook had gotten “confused and lost coming back from Arizona.” She testified that 

Cook “took the wrong exit” while driving back to Nebraska 

from Arizona and stopped at a hotel in Texas where she contacted the Russos. The Russos’ daughter testified that her 

parents and Cook maintained a good relationship from the 

time she first met Cook in 2003 until the last time she spoke 

with Cook.

Lloyd was called again to testify as part of the Russos’ case 

in chief. The Russos saw Cook two to three times per week 

while in Arizona and occasionally while in Nebraska. Lloyd 

believed that Cook decided to gift the Russos her condo as a 

“token of her appreciation” for being her friends and spending 

time with her. He testified that Cook seemed happy to be gifting the Russos the condo.

Lloyd testified that he initially did not believe acting as 

Cook’s attorney in fact would be very difficult. He testified 

that he was not aware of the extent of Cook’s medical issues 

when he agreed to act as her medical attorney in fact. In comparing Cook’s condition from 2015 to 2016, Lloyd testified 

that among other things, Cook began losing things, became forgetful, would get lost, and could not remember the location of 

places she had been to many times. Lloyd further testified that 
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these issues with Cook were not present on March 30, 2015, 

when the beneficiary deed granting the Russos the Arizona 

condo was signed.

Lloyd testified that every year Cook would drive from 

Nebraska to Arizona and back and that she had never gotten 

lost until July 2016, when she missed a turn and ended up in 

Amarillo, Texas. At the time, Cook had lost her wallet, had 

no money, and did not know where she was. A receptionist at 

the hotel where Cook stopped contacted Lloyd, who booked 

a flight to pick up Cook and drive her home. However, Cook 

called Lloyd the night before his flight and told Lloyd, “‘I’m 

fine. I’m just going to drive home.’” The next morning, 

the hotel receptionist called Lloyd and said that Cook could 

not drive because she could not read the map the receptionist showed Cook. Lloyd testified that Cook had her driver’s 

license revoked in late 2016 because she repeatedly got lost in 

Omaha and called the 911 emergency dispatch service to come 

get her. Lloyd testified that he was unaware of the extent of 

Cook’s issues as they were occurring and that he had attributed 

them to her age.

Lloyd testified that he hired Craft to help assist with moving Cook to Brighton. Lloyd testified that he drove Cook to 

Brighton one morning, ate lunch with her, and waited for Craft 

to have Cook’s room ready for her. Lloyd noticed Cook’s hand 

was bruised, but Cook was unable to say what happened. A 

nurse offered to bring Cook some ice, but Cook refused. Lloyd 

denied leaving Cook at Brighton with a broken wrist, testifying 

that he offered to help but that Cook refused.

Lloyd admitted he browsed assisted living locations “to find 

the best one around,” but he denied that it had anything to do 

with him attempting to protect his interest in Cook’s condo. 

He testified that he hired Craft to clean out Cook’s Bloomfield 

apartment but that after a week or so with little progress, he 

called “1-800-GotJunk” to clear the apartment so it could be 

put up for sale.
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Lloyd indicated that he and Betty maintained contact with 

Cook even after Lloyd was replaced as attorney in fact. Lloyd 

testified that he and Betty would attempt to call Cook after she 

moved to Brighton but that they later found out Cook’s telephone cord had been removed. The Russos continued to visit 

Cook after Craft became Cook’s health care attorney in fact, 

but stopped trying to call.

On cross-examination, Lloyd acknowledged that he was 

aware there was a beneficiary for the Bloomfield unit, but nevertheless thought it was appropriate to sell it, acting as power 

of attorney, to save Cook the associated costs. Lloyd conceded 

that the situation was similar in “principle” to the sale of 

the Arizona condo, but distinguished the Bloomfield sale as 

costing Cook more per month to maintain. When asked if he 

thought there was anything wrong with selling the Arizona 

condo, Lloyd responded, “I don’t know. I guess not.”

Betty testified that she asked Lloyd to resign as Cook’s 

attorney in fact because it became “very difficult” for them. 

She testified that on one occasion, Cook fell and the Russos 

took her to the hospital. Betty told Lloyd to drive home while 

she stayed with Cook at the hospital. When they were preparing to leave the hospital, Cook told Betty, “‘I’m walking 

home,’” despite the fact it was around 2 a.m. and her condo 

was eight blocks from the hospital.

On September 22, 2017, Betty called Brighton and was 

told that Cook was in her room and that Betty could visit. 

When Betty arrived to Cook’s room at Brighton, the door 

was locked and the Brighton staff told Betty she had to contact Cook’s new attorney in fact to find out where she was. 

Betty determined that Cook was at a hospital and found Cook 

there with two black eyes, a broken nose, a broken ankle, 

and her arm “taped up.” Betty denied that Cook ever became 

agitated seeing the Russos and that Cook was always glad to 

see them.

After the conclusion of Betty’s testimony, the Russos rested. 

The Russos then moved for summary dismissal on the ground 
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IN RE TRUST OF COOK

Cite as 28 Neb. App. 624

that no reasonable fact finder could find otherwise than Cook 

lacked testamentary capacity on July 7, 2017, and that therefore, any documents executed on or after that date were invalid. 

Both parties delivered closing arguments, and the pending matters were taken under advisement.

On July 17, 2019, the county court issued an order directing Union Bank to distribute the funds held from the sale of 

the Arizona condo to the University of Nebraska Foundation. 

The court found that the Russos were not “real parties in 

interest” and lacked standing to pursue their claim for trust 

proceeds from the sale of the condo, and it denied the Russos’ 

motion to disallow attorney fees. The court also made the finding that Cook’s capacity was not relevant to its rulings. This 

appeal followed.

ASSIGNMENTS OF ERROR

The Russos assign, restated, that the county court erred by 

(1) viewing the Russos’ claim as a challenge to a valid trust 

rather than one involving a valid beneficiary deed and an 

improper use of a power of attorney, (2) finding that Cook 

was mentally competent at times relevant to this case, (3) 

finding that the Russos lacked standing to assert their claims, 

(4) failing to find that Union Bank lacked the authority and a 

legitimate basis to sell Cook’s Arizona condo, and (5) failing to 

consider the issue of undue influence.

STANDARD OF REVIEW

[1] 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. In re Robert L. McDowell 

Revocable Trust, 296 Neb. 565, 894 N.W.2d 810 (2017).

[2,3] When reviewing a judgment for errors appearing on 

the record, the inquiry is whether the decision conforms to the 

law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Trust of Rosenberg, 
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Cite as 28 Neb. App. 624

273 Neb. 59, 727 N.W.2d 430 (2007). An appellate court, in 

reviewing a judgment for errors appearing on the record, will 

not substitute its factual findings for those of the trial court 

where competent evidence supports those findings. In re Estate 

of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018).

[4] An appeal from the county court’s allowance or disallowance of a claim in probate will be heard as an appeal from 

an action at law. In re Estate of Karmazin, 299 Neb. 315, 908 

N.W.2d 381 (2018). In reviewing a judgment of the probate 

court in a law action, an appellate court does not reweigh evidence, but considers the evidence in the 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. Id. The probate court’s 

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

aside unless clearly erroneous. Id.

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

sents a question of law. When reviewing questions of law in a 

probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below. In re 

Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

ANALYSIS

The Russos’ first two assignments of error relate directly to 

the issue of Cook’s testamentary capacity at various dates relevant to this case. First, the Russos claim the county court erred 

in viewing their claim as a challenge to a valid trust instead 

of a case involving a beneficiary deed and an improper use of 

a power of attorney. In doing so, they claim that Cook lacked 

the capacity to execute her revocable trust on March 9, 2017, 

and that the March 30, 2015, beneficiary deed should control 

the disposition of Cook’s Arizona condo. The Russos’ second 

assignment of error argues that the county court misinterpreted 

Nielsen’s testimony in finding that Cook was competent at 

times relevant to this case.
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IN RE TRUST OF COOK

Cite as 28 Neb. App. 624

As is further discussed below, we agree with the county 

court that the issue of capacity is not relevant to the disposition of the Russos’ claims because they lack standing to 

assert them.

Standing

At the heart of the Russos’ appeal is the county court’s 

determination that they were not real parties in interest and, 

therefore, lacked standing to assert their claims. Because we 

agree with the county court that the Russos lacked standing to 

pursue their claims, this issue is determinative of the appeal 

and we, therefore, affirm the county court’s decision.

[6] Although the Russos maintain that the 2015 beneficiary 

deed controls this case, they nevertheless contend that they 

also have standing under the revocable trust. Neb. Rev. Stat. 

§ 25-301 (Reissue 2016) provides that “[e]very action shall be 

prosecuted in the name of the real party in interest . . . .” The 

purpose of the real party in interest statute is to prevent the 

prosecution of actions by persons who have no right, title, or 

interest in the cause. Cattle Nat. Bank & Trust Co. v. Watson, 

293 Neb. 943, 880 N.W.2d 906 (2016).

[7-9] The county court relied on the Nebraska Supreme 

Court’s decision in Manon v. Orr, 289 Neb. 484, 856 N.W.2d 

106 (2014), in concluding that the Russos lacked standing 

under Cook’s revocable trust. In Manon, the Supreme Court 

looked to a previous version of Neb. Rev. Stat. § 30-3855 

(Supp. 2019), with identical statutory language, to find the 

appellants lacked standing to challenge the sale of certain 

trust property based on the settlor’s alleged incapacity. That 

language, found today at § 30-3855(b), provides: “While a 

trust is revocable, rights of the beneficiaries are subject to the 

control of, and the duties of the trustee are owed exclusively 

to, the settlor.” In interpreting what today is § 30-3855(b), the 

Supreme Court held:

[The statute] clearly provides that where the trust is revocable, as is the trust in this case, the settlor is in control 
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of the trust. The plain language of this statute suggests 

that the only real party in interest in a case involving 

a revocable trust would be the settlor of that trust, or 

perhaps one that represents the settlor’s interests, for 

example, a court, a guardian or conservator, or a next 

friend. But plaintiffs here are contingent beneficiaries of 

the trust and have no real interest in the cause of action 

or a legal or equitable right, title, or interest in the subject 

matter of the controversy. This result is supported by our 

case law, which provides that a mere expectancy is insufficient to entitle a prospective heir to bring an action to 

recover property.

Manon v. Orr, 289 Neb. at 487-88, 856 N.W.2d at 109.

[10,11] The Supreme Court then went on to discuss the 

legislative history of § 30-3855(b) and the Uniform Trust 

Code, which previously included language that “‘negate[d] 

the settlor’s control if the settlor is incapacitated.’” Manon 

v. Orr, 289 Neb. at 489, 856 N.W.2d at 110 (quoting Unif. 

Trust Code § 603, comment, 7C U.L.A. 554 (2006)). In 2005, 

the Nebraska Legislature removed this conditional language. 

Based on that history, the court in Manon held:

This history shows that incapacity does not terminate a 

settlor’s power to revoke a trust, though it might well 

affect the ability of the settlor to exercise that power. And 

because it does not affect the power to revoke a trust, that 

trust remains revocable until revoked, either by the settlor, or by another acting in the settlor’s stead.

289 Neb. at 490, 856 N.W.2d at 110-11.

Under the express terms of article IX of Cook’s revocable 

trust, the Russos’ interest in the Arizona condo would not vest 

until Cook’s death, and the trust remained revocable until that 

time. Based on the Supreme Court’s holding in Manon v. Orr, 

supra, we agree with the county court that the Russos were 

merely contingent beneficiaries under the trust and had nothing 

more than an expectancy interest in the Arizona condo. The 

Russos, therefore, lacked standing to challenge the sale of the 
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Cite as 28 Neb. App. 624

Arizona condo under § 30-3855(b) of the Nebraska Uniform 

Trust Code. This result does not change regardless of whether 

Cook had the requisite capacity to execute the trust on March 

9, 2017, because the Russos do not have standing to challenge 

the validity of the trust, nor the disposition of its assets.

The Russos also cite to Neb. Rev. Stat. § 30-4016 (Reissue 

2016) in arguing that the county court improperly dismissed 

them for lack of standing. Section 30-4016 provides:

(1) The following persons may petition a court to construe a power of attorney or review the agent’s conduct 

and grant appropriate relief:

. . . .

(e) An individual who would qualify as a presumptive heir of the principal or would otherwise qualify as a 

devisee under a will that remains unrevoked;

(f) A person named as a beneficiary to receive any 

property, benefit, or contractual right on the principal’s 

death or as a beneficiary of a trust created by or for 

the principal that has a financial interest in the principal’s estate;

. . . .

(h) The principal’s caregiver or another person that 

demonstrates sufficient interest in the principal’s welfare; and

(i) A person asking to accept the power of attorney.

After reviewing the provisions of § 30-4016, we find 

that none of them confer standing upon the Russos. Section 

30-4016(1)(e) pertains to a “presumptive heir,” which necessarily relates to a decedent’s blood relatives. The Russos are 

not relatives of Cook. They also were not devisees under a 

will that remained unrevoked upon Cook’s death. Section 

30-4016(1)(f) relates to individuals who possess some right 

“on the principal’s death.” As has been discussed, the Russos 

were not beneficiaries of Cook’s revocable trust, nor the thenrevoked beneficiary deed, upon her death and cannot invoke 

§ 30-4016(1)(f) to confer standing. While Lloyd at one point 
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Cite as 28 Neb. App. 624

served as attorney in fact under health care and financial powers of attorney for Cook, he voluntarily resigned from these 

positions in July 2017, before Cook’s death, and cannot be 

said to have been her “caregiver” or to have a “sufficient 

interest in the principal’s welfare” to invoke standing under 

§ 30-4016(1)(h). Finally, Lloyd and Betty at no point were 

asking to accept Cook’s power of attorney. In fact, both sought 

to remove themselves voluntarily from those roles. For these 

reasons, the Russos’ reliance on § 30-4016 to challenge the 

authority of Union Bank under the July 2017 financial power 

of attorney, which Lloyd intentionally sought out to replace 

him, is misplaced.

Based on the foregoing analysis, we agree with the county 

court that the Russos lacked standing to assert their claims.

Russos’ Remaining Arguments

The Russos also raise several issues unrelated to the question of standing. The Russos claim that the county court erred 

by (1) finding that Cook was mentally competent at times relevant to this case, (2) failing to find that Union Bank lacked 

the authority and a legitimate basis to sell Cook’s Arizona 

condo, and (3) failing to consider the issue of undue influence. 

However, none of these arguments change the underlying fact 

that the Russos lack standing in this trust administration proceeding. Without standing to raise their claims, we need not 

consider the merits of these arguments.

CONCLUSION

Based on the foregoing reasons, we agree with the county 

court that the Russos lacked standing to assert their claims in 

this matter. Therefore, we affirm the county court’s dismissal 

of the Russos’ claims for lack of standing and its denial of the 

Russos’ motion to disallow attorney fees.

Affirmed.