- 549 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

In re Estate of Walter R. Koetter, deceased. 

Richard A. Koetter, individually and as the nominated 

Personal Representative of the Estate of Walter R. 

Koetter, deceased, appellant and cross-appellee, 

v. Debra J. Meyers, appellee and cross-appellant, 

and Diana K. Wilkinson et al., appellees.

___ N.W.2d ___

Filed October 7, 2022. No. S-21-623.

1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is 

proper only when reasonable minds cannot differ and can draw but one 

conclusion from the evidence, that is, when an issue should be decided 

as a matter of law. In reviewing that determination, an appellate court 

gives the nonmoving party the benefit of every controverted fact and all 

reasonable inferences from the evidence.

2. Judgments: Verdicts: Appeal and Error. Review of a ruling on a 

motion for judgment notwithstanding the verdict is de novo on the 

record.

3. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and 

may do so only when the facts are such that reasonable minds can draw 

but one conclusion.

4. ____: ____. On a motion for judgment notwithstanding the verdict, the 

moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against whom the motion 

is directed, and, further, the party against whom the motion is directed 

is entitled to the benefit of all proper inferences deducible from the relevant evidence.

5. Verdicts: Appeal and Error. When reviewing a jury verdict, an appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

6. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

Nebraska Supreme Court Online Library

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

10/28/2022 08:06 AM CDT
- 550 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

evidence presented to the jury upon which it could find for the successful party.

7. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

8. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

9. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

10. Wills: Undue Influence. Undue influence sufficient to defeat a will 

is manipulation that destroys the testator’s free agency and substitutes 

another’s purpose for the testator’s.

11. Wills: Undue Influence: Proof. To show undue influence, a will 

contestant must prove the following elements by a preponderance of 

the evidence: (1) The testator was subject to, or susceptible to, undue 

influence; (2) there was an opportunity to exercise such influence; (3) 

there was a disposition to exercise such influence; and (4) the result was 

clearly the effect of such influence.

12. Undue Influence: Proof. Because undue influence is often difficult to 

prove with direct evidence, it may be reasonably inferred from the facts 

and circumstances surrounding the actor: his or her life, character, and 

mental condition.

13. Undue Influence. Mere suspicion, surmise, or conjecture does not warrant a finding of undue influence; instead, there must be a solid foundation of established facts on which to rest the inference of its existence.

14. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, if 

uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Generally, an appellate court will find plain 

error only when a miscarriage of justice would otherwise occur.

15. Motions for New Trial: Appeal and Error. A motion for new trial is to 

be granted only when error prejudicial to the rights of the unsuccessful 

party has occurred.

16. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.
- 551 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Appeal from the District Court for Red Willow County: 

David W. Urbom, Judge. Affirmed in part, and in part vacated 

and dismissed.

Michael L. Johnson and Jared J. Krejci, of Smith, Johnson, 

Allen, Connick & Hansen, for appellant.

Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for 

appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

In this appeal from a will contest proceeding in district court, 

the proponent of the will contests the jury’s finding that the 

will was the product of undue influence and therefore invalid. 

He also claims a new trial is warranted because a purported 

text message not received in evidence was read on the record 

and referenced during closing arguments. We find no merit to 

these arguments. But on cross-appeal, in which the opponent of 

the will challenges an award of attorney fees and expenses that 

the district court purported to award pursuant to Neb. Rev. Stat. 

§§ 30-2481 and 30-2482 (Reissue 2016), we conclude that the 

district court lacked jurisdiction over that matter. Accordingly, 

we vacate the portion of the order that purported to award 

attorney fees and expenses and dismiss the cross-appeal.

I. BACKGROUND

1. Probate Proceedings and Will Contest 

Initiated in County Court

Walter R. Koetter died in 2017 at the age of 88. Thereafter, 

one of his sons, Richard A. Koetter (Dickie), filed a petition in 

county court for formal probate of a will executed by Walter 

in 2014 (2014 will). Dickie was the nominated personal representative of the 2014 will. Debra J. Meyers, one of Walter’s 

daughters, objected to the probate of the 2014 will, alleging, in 
- 552 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

part, that it was the result of undue influence. The will contest 

was transferred to district court pursuant to Neb. Rev. Stat. 

§ 30-2429.01 (Cum. Supp. 2020). The only issue at the ensuing 

jury trial was whether the 2014 will was invalid as a result of 

undue influence.

2. Will Contest Proceedings 

in District Court

There was evidence at trial that supported both parties’ 

positions as to undue influence; but considering the governing 

standards of review, we recount the evidence relevant to undue 

influence in the light most favorable to Debra.

(a) Koetter Family and Farm and 

Ranch Operation Overview

The jury heard evidence that Walter, a farmer and rancher in 

McCook, Nebraska, had five surviving children at the time of 

his death in 2017: Debra, Dickie, Diana K. Wilkinson (Diana), 

Donna S. Friehe (Donna), and Douglas S. Koetter. Another son, 

Darin Koetter, died in 2003. Walter’s wife, Marilyn Koetter, 

also died several years before Walter, in 2011.

Unlike most of Walter and Marilyn’s other children, Dickie 

was uninvolved with the family and with the farm for decades. 

During that time, he had a series of jobs outside McCook. In 

2006, Dickie moved back to the area from Lincoln, Nebraska. 

Walter asked Dickie to return, in part to help with the farm 

and ranch operation. At first, Dickie lived in town, owned 

no real estate, and was not involved in Walter’s operation. In 

approximately 2008, Dickie moved from town to live rent free 

on an acreage owned by Walter, near the home where Walter 

lived. Around that time, Dickie began working in Walter’s 

operation, along with Douglas, who had been working there 

for about 40 years. Douglas left the operation after less than 2 

years of Dickie’s return to the area. Douglas testified that the 

operation could not comfortably provide for everyone involved 

and that Walter expressed he did not need Douglas on the 

farm anymore.
- 553 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

In 2012, Walter transferred a cattle herd to Dickie as compensation, and in 2013 and 2014, Walter paid Dickie wages on 

a somewhat irregular basis.

(b) Walter’s Wills and Land Transfers

Walter executed several wills between 2003 and 2012. In 

general, those wills divided the estate equally among his six 

children, with the children of Walter’s deceased son, Darin, 

receiving his share.

When Walter was 84 years old, he executed the 2014 will on 

April 25 of that year. The 2014 will devised Walter’s property 

as follows: (1) household goods, valued at $5,000, equally to 

the five living children; (2) farm machinery and farm equipment, valued at $179,444.71, to Dickie; (3) money in checking or savings accounts, valued at $168,267.66, 70 percent to 

Dickie and 30 percent to Douglas; (4) life insurance payable to 

the estate, valued at $84,323.50, to the three daughters; and (5) 

the remainder of the estate, valued at $5,580.96, 70 percent to 

Dickie and 30 percent to Douglas.

On the same day that the 2014 will was executed, Walter 

executed deeds conveying interests in real property to Dickie 

and Douglas, while reserving a life estate in his own name. 

Dickie’s interest was valued at $1,195,750, and Douglas’ interest was valued at $502,053. Debra testified that she was a 

party to a pending action to set aside the deeds executed April 

25, 2014.

(c) Testimony of Walter’s Attorneys

Jon Schroeder had handled Walter’s estate planning since 

2003 and prepared Walter’s 2012 will. He testified that he met 

with Walter 10 to 20 times between April 2011 and October 

2012 to close Marilyn’s estate and revise Walter’s estate plan. 

Schroeder denied discussing transferring a significant portion of Walter’s assets to Dickie, but on Walter’s request, he 

discussed other options for compensating Dickie, who began 

attending Walter’s meetings with Schroeder in 2011. This was 

the first time any of Walter’s children had attended his estate 
- 554 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

planning meetings with Schroeder. Schroeder perceived Dickie 

to be “tense” and “aggressive” regarding his compensation 

beginning in September 2012, asking “‘How do I get compensated for what I’m doing for dad[?]’” In a meeting sometime 

after October 30, Dickie asked several times, “‘What is in 

it for me? How am I going to be compensated?’” Schroeder 

asked Dickie to leave the room so that he could speak to Walter 

alone. Schroeder testified that Dickie did not seem happy with 

the request, but left. After he did, Schroeder told Walter, “‘I am 

not feeling comfortable with this conversation with Dickie,’” 

and Walter replied, “‘I’m not either.’” After that meeting, 

Schroeder never saw or spoke to Walter again.

In executing the 2014 will and deeds, Walter was represented by attorney Justin Hermann. Hermann first met with 

Walter to discuss changes to Walter’s estate plan when Walter 

came to his office alone in September 2013, having been transported there by someone else. Hermann testified that prior to 

the estate planning work, he had Walter provide him with two 

letters from physicians, both finding that Walter had sufficient 

testamentary capacity.

Hermann testified that he met with Walter on April 16, 2014, 

in his office. At that time, Walter signed updated powers of 

attorney and a living will. The will and deeds were prepared, 

but because some additional changes were needed, they scheduled a followup appointment for their execution. Hermann 

testified that he learned from Dickie on April 21 that Walter 

had been hospitalized due to chest pains. He was discharged, 

but was not allowed to travel, so Hermann arranged to execute 

the documents in McCook, where Walter lived, rather than at 

Hermann’s office in Kearney, Nebraska. On the day Walter 

executed the 2014 will, Walter signed an acknowledgment 

that Dickie and Dickie’s wife drove him to the office and 

participated in a meeting earlier in the day to discuss a farm 

lease involving Dickie that was part of the estate plan, but that 

they were not present when Walter and Hermann reviewed the 

terms of the will. Hermann testified that he had not observed 
- 555 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Walter outside his office and did not see everything happening 

in Walter’s life.

Hermann testified that he had represented Dickie in another 

matter the month before he met with Walter. Hermann testified 

he also met with Dickie and his wife to discuss the farm lease, 

but he never met with Dickie about the 2014 will. However, 

his billing statements reflect that in 2013 and 2014 he had several 5-to-10-minute telephone conversations with Dickie’s wife 

regarding Walter’s “estate planning.”

(d) Testimony by Physicians

The two physicians who examined Walter in 2013 testified. 

Both opined that Walter was able to make decisions for himself 

at that time. One of those physicians admitted that he would 

not be aware if Walter was being subjected to undue influence 

by a family member.

(e) Testimony by Walter’s Family and Neighbors

Debra testified that after Marilyn moved to a nursing home 

in 2009, other family members were “taking care” of Walter, 

who at that time continued to work in the field. She testified, “I 

would do, you know, whatever he needed to do. I was helping 

him.” This included taking “sandwiches out to him,” buying 

his groceries, taking him to medical appointments, and coordinating his Veterans Affairs benefits.

Members of Walter’s family testified that before Marilyn’s 

death in April 2011, Walter frequently gathered with his children and grandchildren multiple times a week for meals, farmwork, and celebrations, but Dickie rarely participated in any 

family gatherings, despite being invited. After Marilyn’s death, 

the family as a whole no longer celebrated special events with 

Walter; he celebrated only with Dickie. Debra recalled that 

after Marilyn’s death, she tried to take Thanksgiving dinner 

to Walter, but he declined, saying that “Dick[ie] wouldn’t like 

it.” Debra testified that from September 2012 until October 

2013, whenever she was at Walter’s house, Dickie and his wife 

were present.
- 556 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Several family members testified that when they visited 

Walter alone, he seemed to be checking to see if Dickie was 

approaching, and Diana described Walter’s behavior on these 

occasions as “agitated” and “fidgety.” Another relative testified 

that if Dickie did arrive, Walter became less talkative. Some 

viewed Dickie as curtailing Walter’s contact with the rest of 

the family.

After 2011, Dickie and his wife, whom Dickie married in 

2013, took over buying Walter’s groceries and taking him to 

medical appointments. Dickie did not communicate information about Walter’s medical condition to the rest of the family as Debra had. Dickie also became a signatory on Walter’s 

checking account and Walter’s power of attorney, whereas 

Debra previously had been Walter’s power of attorney. Dickie 

testified that he would prepare Walter’s lunch daily and help 

Walter with bills by addressing and stamping envelopes.

Several family members testified that they did not believe 

Walter had the ability to make his own decisions after October 

2012 and that they believed Dickie was influencing Walter 

and overpowering his decisions. Two relatives familiar with 

the operation testified that after Dickie came back to town, 

Walter, who previously had an opinion on everything and made 

decisions on his own, could not make a decision without consulting with Dickie. One of the relatives recounted that once 

when he was outdoors, a “couple hundred yards away” from 

Dickie and Walter, he heard Dickie “screaming” at Walter. 

On another occasion, the same relative saw Walter outside in 

102-degree heat, “covered in sweat,” and advised Walter to go 

inside to avoid heatstroke. Walter replied, “‘Well, I was told 

to stay . . . here. [Dickie’s] going to yell at me,’” but Walter 

was subsequently convinced to return to the house. According 

to Douglas, Walter had phased out of the operation as he aged, 

and “eventually . . . you could say he was out.” When Dickie 

and his wife were out of town in 2013, a neighbor helped 

Walter with farm chores at Dickie’s residence.
- 557 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Several of Walter’s children said that Walter had changed 

after Dickie came back, in that he had lost the “spark in his 

eye” and his typical “easygoing,” “calm,” “happy,” and “sharp” 

demeanor; watched television rather than being active on the 

farm; and no longer expressed an interest in family members 

other than Dickie and Dickie’s wife. In describing Walter after 

Dickie joined the operation, they used descriptions such as 

“shaky,” “deathly afraid” of Dickie, “uncomfortable” around 

the rest of the family, “a whipped puppy,” “beaten down,” 

“stressed,” “closed up,” “timid,” “nervous,” “cowered,” “just 

giving up,” “going downhill,” and “getting more intimidated 

all the time.”

Jeremy Meyers, one of Walter’s grandsons, testified that 

Walter was “getting manipulated” and that Dickie was “starting to put some pressure” on Walter in late 2012 or early 2013. 

Jeremy recalled that in July 2013, Walter wrongly accused 

him of wanting to take over the operation and Walter said he 

had heard it from Dickie. Jeremy testified that in September 

2013, he received a text message from Walter’s phone that 

was intended, at least in part, for Dickie’s wife. Shortly after, 

Jeremy received a call from Walter, who addressed him as 

“‘Jeremy’” rather than “‘Jerm’” as he always had. During 

the call, Jeremy heard two voices, and in his opinion, Dickie 

was coaching Walter to instruct Jeremy to delete the text message. Jeremy detected shakiness in Walter’s voice and was 

concerned that Walter was under “severe duress.” Later, at 

about 7 p.m., Jeremy went to check on Walter, who he found 

sitting in the dark, “shaking uncontrollably” and “virtually 

sobbing.” Jeremy asked Walter, “‘Did he do something to 

you?’” but Walter “wouldn’t tell” Jeremy. Jeremy testified that 

he was concerned enough about the incident to report it to law 

enforcement.

Walter communicated to several family members and a 

neighbor that he intended to change his previous estate plan 

to leave the majority of his assets to Dickie and Douglas. 

Family members were also aware that Walter had sought out 
- 558 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

a new attorney. Diana recognized that Walter wanted to leave 

a legacy in regard to his farm but believed Dickie was making the decisions. Debra testified that in October 2013, Dickie 

informed her, in Walter’s presence, that Darin’s children were 

“being taken completely out of the will.” Debra testified that 

she believed they should be included and argued with Dickie 

about the matter, and Dickie’s wife also stated her opinion, but 

Walter did not say a word. Another daughter, Donna, testified 

that Walter told her about his new estate plans in 2016. To 

Donna, Walter seemed “anxious” and aware that the information would hurt her. When Donna told Walter that she respected 

his decision but did not agree, Walter responded, “‘Dick[ie] 

says this is how it should be.’”

Dickie denied ever telling Walter how to make his will or 

to transfer land, but he testified that he told Walter that if he 

divided his estate equally among his children, it would likely 

be sold to someone outside the family after his death because 

the children could not “get along.”

(f) Undue Influence Expert; Testimony 

and Argument Concerning 

Text Message

Dr. Lindsey Wylie, an expert called by Dickie, was the first 

witness to testify on the second day of the 4-day trial. She 

testified to her opinions that Walter’s level of cognition was 

high on the date he executed the 2014 will and that he was not 

susceptible to undue influence. She based her opinion on depositions and exhibits supplied to her by Dickie’s counsel.

On cross-examination, Debra’s counsel elicited Wylie’s testimony that if the information supplied to her was faulty or 

incomplete, her opinion would be faulty or incomplete. Wylie 

confirmed that one of the depositions supplied by Dickie’s 

counsel was that of Dickie’s wife. The following colloquy then 

took place:

Q. So if [Dickie’s wife] has said—made opposite 

statements or contradictory statements, would that be 
- 559 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

something you’d . . . want to take into account when 

you’re relying on her deposition?

A. Contradictory statements at what point?

Q. Subsequent to her deposition.

A. I mean, . . . I guess, it would be something I would 

. . . want to have known about then when I rendered 

my report.

Q. But you were not aware of that?

A. I don’t know what the contradictory statements are, 

so I can’t speak to it.

Q. Well, if [Dickie’s wife] indicated in a text to family, 

“Dick[ie] was behind all the will changing, and grandpa 

had—and had grandpa and I scared to death if it wasn’t 

done, he would do something”, would that be a statement 

you would be considering—want [to] consider when . . . 

rendering an opinion?

A. Yep.

[Dickie’s counsel]: Your Honor, I would object. That 

matter’s not in evidence. I would move to strike.

[Debra’s counsel]: Your Honor, she asked what it said.

THE COURT: Yeah, the objection’s overruled. I think 

she can answer whether or not that would be something 

she would have considered.

BY [Debra’s counsel]:

Q. Would something—that statement want [sic] you to 

further vet [Dickie’s wife]?

A. Of course, I would want to have all the information 

at the time I rendered my report.

Later during the trial, Dickie’s counsel requested a copy of the 

text message. Debra’s counsel acknowledged that it would not 

have been provided in response to discovery, but said Debra 

planned to use it “when [Dickie’s wife] shows up.” The district 

court overruled the “objection,” but noted that Dickie’s counsel 

would not be prohibited from making a similar request later. 

Dickie’s wife did not testify at trial, and Dickie’s counsel did 

not renew his request for a copy of the text message.
- 560 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

The text message came up again in closing arguments. 

Debra’s counsel stated that Wylie’s opinion was based on 

depositions supplied by opposing counsel, “not the full information.” He next mentioned the text message, and Dickie’s 

counsel objected:

[Debra’s counsel]: . . . I think she clarified that, saying 

it’s only as good as what she’s been given. And when I 

asked her about [Dickie’s wife], and I question, what if 

[Dickie’s wife] had sent a text message? She says, what’s 

the text message say?

[Dickie’s counsel]: Objection, Your Honor.

THE COURT: Objection is sustained. The text message 

isn’t in evidence.

[Debra’s counsel]: The question and answer.

THE COURT: Yes, but not anything about the text 

message.

[Debra’s counsel]: No, I quoted the text message.

THE COURT: Okay. You’re fine.

[Dickie’s counsel]: I thought that question was stricken.

[Debra’s counsel]: No, it’s still in the evidence.

THE COURT: Yeah, it’s in. Yeah, the objection is 

sustained.

Just as long as you don’t bring up anything about any 

text message.

[Debra’s counsel]: Okay.

THE COURT: As far as the content of the text 

message.

[Debra’s counsel]: But it’s already in evidence. When 

I asked the question, I specifically read it. There was no 

objection, and it was answered.

[Dickie’s counsel]: There was an objection.

Your Honor, can we approach?

[Debra’s counsel]: Okay. Your Honor, that’s fine.

THE COURT: You’re okay? All right.

[Debra’s counsel]: All right. Okay. So she said if 

she didn’t have all the facts with [Dickie’s wife], she 
- 561 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

basically said, “Yeah, I’d have to reconsider that”, is what 

her testimony was.

So, basically, she acknowledged she doesn’t have all 

the facts and yet —

[Dickie’s counsel]: Objection, Your Honor. Can we 

approach?

(An off-record sidebar was held.)

THE COURT: Go ahead, [Debra’s counsel].

[Debra’s counsel]: Dr. Wylie indicated several of the 

witnesses weren’t fully vetted for her, and that she also 

indicated that her ability to give an opinion relied solely 

on what was supplied to her, solely supplied on one 

side . . . .

So when you look at — the expert witness instruction 

indicates — you take an expert — she’s no different than 

you when coming to this final conclusion, so don’t let 

her opinion — or first — apparently, first expert opinion, 

which is not fully vetted, sway you in any way. The credibility you give her is entirely up to you.

The jury was instructed that statements, arguments, and 

objections by attorneys were not evidence for its consideration, 

nor were questions and answers for which objections had 

been sustained.

(g) Jury Verdict and Subsequent 

Motions and Orders

The jury returned a verdict finding that the 2014 will was 

not valid. The district court accepted the verdict.

Dickie then filed a motion to alter or amend, which asked 

the district court to rule on a motion for attorney fees and 

expenses pursuant to § 30-2481 that he had earlier filed in the 

district court. On the same day, Dickie filed a motion for judgment notwithstanding the verdict. In the alternative, Dickie 

moved for a new trial.

In the same order, the district court overruled the motions 

for judgment notwithstanding the verdict and for a new trial, 
- 562 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

and sustained the motion to alter or amend regarding attorney 

fees and expenses in the amount of $196,914.47. In ruling on 

attorney fees and expenses, the district court cited §§ 30-2481 

and 30-2482.

Dickie filed an appeal, and Debra cross-appealed.

II. ASSIGNMENTS OF ERROR

On appeal, Dickie assigns several grounds for reversal that, 

consolidated and restated, fall into two general categories. 

The first category relates to his position that Debra did not 

meet her burden of proving the 2014 will was invalid: He 

claims that the evidence was insufficient to sustain the jury’s 

verdict and that the district court erred in denying his motions 

for directed verdict, judgment notwithstanding the verdict, 

and new trial. The second category concerns the text message. Dickie asserts (1) that the district court erred in allowing Debra’s counsel to ask his expert about the purported text 

message, denying his motion to strike his expert’s response, 

and not granting his motion for a new trial based on that 

exchange, and (2) that misconduct by Debra’s attorney during 

closing arguments misled the jury regarding the text message 

to such a degree that it resulted in an unjust verdict and constituted plain error.

On cross-appeal, Debra assigns that the district court erred 

in awarding attorney fees and expenses to Dickie and in fixing 

the amount of those fees.

III. STANDARD OF REVIEW

[1] A directed verdict is proper only when reasonable minds 

cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of 

law. In reviewing that determination, an appellate court gives 

the nonmoving party the benefit of every controverted fact and 

all reasonable inferences from the evidence. Arens v. NEBCO, 

Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

[2-4] Review of a ruling on a motion for judgment notwithstanding the verdict is de novo on the record. Valley Boys 
- 563 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 

(2020). To sustain a motion for judgment notwithstanding the 

verdict, the court resolves the controversy as a matter of law 

and may do so only when the facts are such that reasonable 

minds can draw but one conclusion. Id. On a motion for judgment notwithstanding the verdict, the moving party is deemed 

to have admitted as true all the relevant evidence admitted that 

is favorable to the party against whom the motion is directed, 

and, further, the party against whom the motion is directed is 

entitled to the benefit of all proper inferences deducible from 

the relevant evidence. Id.

[5,6] When reviewing a jury verdict, an appellate court 

considers the evidence and resolves evidentiary conflicts in 

favor of the successful party. Pantano v. American Blue 

Ribbon Holdings, 303 Neb. 156, 927 N.W.2d 357 (2019). A 

jury verdict may not be set aside unless clearly wrong, and 

it is sufficient if there is competent evidence presented to 

the jury upon which it could find for the successful party. Id.

See, also, In re Estate of Disney, 250 Neb. 703, 550 N.W.2d 

919 (1996).

An appellate court reviews the denial of a motion for new 

trial for an abuse of discretion. See Schmid v. Simmons, 311 

Neb. 48, 970 N.W.2d 735 (2022).

[7,8] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these rules; 

judicial discretion is involved only when the rules make discretion a factor in determining admissibility. Brown v. Morello, 

308 Neb. 968, 957 N.W.2d 884 (2021). In a civil case, the 

admission or exclusion of evidence is not reversible error 

unless it unfairly prejudiced a substantial right of the complaining party. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 

37 (2015).

[9] The question of jurisdiction is a question of law, upon 

which an appellate court reaches a conclusion independent 

of the trial court. State ex rel. Peterson v. Creative Comm. 

Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019).
- 564 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

IV. ANALYSIS

1. Undue Influence

We begin with the issue at the heart of these proceedings, 

undue influence. At trial, Dickie made several attempts to 

preempt or overturn the jury’s verdict that found the 2014 will 

invalid. He made unsuccessful motions for a directed verdict at 

the close of Debra’s case and at the close of all the evidence, 

for judgment notwithstanding the verdict, and, in the alternative, for new trial, all on the grounds that the evidence did not 

prove undue influence. On appeal, he challenges the district 

court’s rulings on those motions and further assigns that the 

evidence was insufficient to sustain the jury’s verdict. We note 

at the outset that Dickie cannot now challenge the ruling on the 

motion for directed verdict he made at the close of Debra’s evidence because he proceeded to present his own evidence after 

that motion was overruled. See Anderson v. Babbe, 304 Neb. 

186, 933 N.W.2d 813 (2019). As for the remaining motions, we 

address Dickie’s arguments in a general manner by considering 

whether there was competent evidence that allowed the jury 

to reasonably find that Walter executed the 2014 will as the 

result of undue influence. Although some evidence supported 

Dickie’s position, other evidence supported Debra’s position, 

and under the applicable standards of review, we conclude 

that the evidence was sufficient to sustain the jury’s verdict in 

Debra’s favor.

[10,11] Undue influence sufficient to defeat a will is manipulation that destroys the testator’s free agency and substitutes 

another’s purpose for the testator’s. In re Estate of Clinger, 

supra. To show undue influence, a will contestant must prove 

the following elements by a preponderance of the evidence: (1) 

The testator was subject to, or susceptible to, undue influence; 

(2) there was an opportunity to exercise such influence; (3) 

there was a disposition to exercise such influence; and (4) the 

result was clearly the effect of such influence. See In re Estate 

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

Spinar v. Wall, 191 Neb. 395, 215 N.W.2d 98 (1974).
- 565 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

[12,13] Because undue influence is often difficult to prove 

with direct evidence, it may be reasonably inferred from the 

facts and circumstances surrounding the actor: his or her life, 

character, and mental condition. In re Estate of Barger, supra. 

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).

Dickie mainly challenges the jury’s verdict by arguing that 

because the evidence did not show that Walter suffered from a 

mental or physical impairment, it did not establish that he was 

susceptible to undue influence. Dickie appears to take the position that mental or physical impairment is a required element 

of undue influence. Although we have said that suspicious 

circumstances tending to show undue influence are indicated 

when there is “an elderly testator in a weakened physical or 

mental condition,” In re Estate of Barger, 303 Neb. at 835, 

931 N.W.2d at 674, we have not held that mental or physical 

impairment is essential to a finding of undue influence. And 

although there was no evidence that Walter had a specifically diagnosed mental or physical impairment at the time he 

executed the 2014 will, there was evidence that Walter, who 

was 84 years old when he executed the 2014 will, exhibited 

signs of decline. Whereas Walter previously had been “easygoing,” “calm,” “happy,” and “sharp,” and had a “spark in 

his eye,” there was testimony that after Dickie’s return, he 

became “shaky,” “stressed,” “closed up,” “timid,” and “nervous”; “cowered” like a “whipped puppy”; and seemed to be 

“just giving up” and “going downhill.”

In addition, there are other factors that can demonstrate 

susceptibility to undue influence. In assessing susceptibility, 

“[t]he question is . . . whether [the testator’s] natural defenses 

are lowered leaving [him or] her unable to resist the suggestions of a stronger, more determined individual.” In re Estate 

of Glass, 85 Wis. 2d 126, 140, 270 N.W.2d 386, 393 (1978). 
- 566 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Factors showing susceptibility recognized by this court have 

included a testator’s age, health, and dependence on the person 

accused of undue influence for transportation, groceries, and 

business affairs. See, In re Estate of Wagner, 246 Neb. 625, 

522 N.W.2d 159 (1994); In re Estate of Bainbridge, 151 Neb. 

142, 36 N.W.2d 625 (1949); In re Estate of Bowman, 143 Neb. 

440, 9 N.W.2d 801 (1943).

Other jurisdictions have likewise cited similar factors, 

including dependence and a tendency to be passive and easily 

swayed. See, Moriarty v. Moriarty, 150 N.E.3d 616 (Ind. App. 

2020) (basing finding of susceptibility on recent death of loved 

one, anxiety and depression, medical conditions, isolation from 

family and friends, and dependency on others); Matter of 

Estate of Smith, 164 Idaho 457, 476, 432 P.3d 6, 25 (2018), 

quoting King v. MacDonald, 90 Idaho 272, 410 P.2d 969 

(1965) (finding testator susceptible to accused influencer’s specific influence and stating that “determining whether a testator 

was susceptible to undue influence ‘requires a consideration of 

many circumstances, including his state of affections or dislike 

for particular persons, benefited or not benefited by the will; of 

his inclinations to obey or to resist these persons; and, in general, of his mental and emotional condition with reference to 

its being affected by any of the persons concerned’”); Erickson 

v. Olsen, 844 N.W.2d 585, 594 (N.D. 2014) (affirming district court’s finding of undue influence where, in contrast to 

case in which decedent was “‘his own boss’” and found not 

susceptible, testator was “passive and easily influenced” and 

dependent on care of others); Hernon v. Hernon, 74 Mass. App. 

492, 498-99, 908 N.E.2d 777, 783 (2009) (testator’s susceptibility to undue influence by brother shown by evidence that 

although the two had strained and distant relationship, testator 

had no choice but to have brother move into his home to care 

for him; that he was dependent on brother who drove him to 

appointments, including one to attorney’s office to execute 

will 2 months before he died; and that brother stated “‘[testator] will do exactly what I want when it come[s] to his will or 
- 567 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

I’m out of here’”); In re Estate of Glass, supra (susceptibility 

factors include testator’s age, personality, physical and mental 

health, and ability to handle business affairs); In re Feitag’s 

Estate, 9 Wis. 2d 315, 321-22, 101 N.W.2d 108, 111 (1960) 

(testator’s susceptibility shown by “testimony that she was 

easily led or swayed by people about her,” including incident 

in which she “talked about selling a washing machine, but she 

didn’t know whether she would because she didn’t think the 

appellant would like it”). See, also, In re Estate of Milas, No. 

98-2511, 1999 WL 627680 at *3 (Wis. App. Aug. 19, 1999) 

(unpublished opinion listed in table at 230 Wis. 2d 186, 603 

N.W.2d 748 (Wis. App. 1999)) (identifying fact that “testator 

was unusually receptive to the suggestions of another to whom 

he consistently deferred on matters of personal importance” as 

evidence of susceptibility to undue influence).

In our view, there was other evidence in this case that, in 

addition to Walter’s decline, supported a finding that Walter 

was susceptible to undue influence. Evidence at trial supported 

the inference that Walter was susceptible to undue influence 

because Walter depended on Dickie to manage matters ranging from groceries to the farming operation. Evidence showed 

that after Marilyn entered the nursing home in 2009, Walter 

depended on his family’s assistance with groceries, food, and 

medical appointments. After Marilyn died in 2011, Walter 

came to rely on Dickie or Dickie’s wife to buy his groceries, 

prepare food for him, and take him to medical appointments 

and meetings with his attorneys. According to evidence, in 

the years before the 2014 will and afterward, it was only 

Walter and Dickie involved in Walter’s operation. Douglas 

testified that Walter’s involvement in the operation diminished as he aged, until he “was out.” There was testimony that 

rather than being active on the farm, Walter stayed inside and 

watched television.

There was also evidence from which the jury could infer 

that Walter had become passive and easily led, making him 

susceptible to undue influence. The jury heard evidence that 
- 568 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Walter altered his longtime estate plans despite expressing 

discomfort with Dickie’s involvement. From 2003 to 2014, 

Walter had consistently maintained an estate plan that generally 

divided his assets equally among his children. In September 

2011, Dickie began attending meetings between Walter and 

Schroeder, who had prepared Walter’s previous wills. The 

jury heard Schroeder’s testimony that in October 2012, he 

was “‘not feeling comfortable’” with Dickie’s “aggressive” 

and repetitive questions about his own compensation during 

a consultation with Walter, so much so, that Schroeder asked 

Dickie to leave the room. Schroeder recounted that when he 

expressed his discomfort to Walter, Walter agreed that he too 

was uncomfortable. That was the last time Schroeder saw 

Walter. Soon afterward, Walter began consulting about his 

estate plan in Kearney with Hermann, who had represented 

Dickie in another matter just the previous month. Hermann 

eventually prepared the 2014 will that substantially changed 

Walter’s prior estate planning.

Other evidence also allowed the jury to make inferences 

regarding Walter’s passivity and tendency to yield. The jury 

heard testimony that before Dickie’s return, Walter made his 

own decisions, but witnesses testified that afterward, Walter 

could not make a decision without Dickie, who had been 

heard “screaming” at Walter. Jeremy testified about a time in 

September 2013 when Dickie seemed to be coaching Walter 

to ask Jeremy to delete a text message involving Dickie’s 

wife that was mistakenly sent from Walter’s phone. Based 

on Walter’s voice, Jeremy testified that he thought Walter 

was under “severe duress.” Witnesses recalled specific statements Walter made that showed Dickie’s influence over how 

Walter celebrated Thanksgiving, whether he stayed outdoors 

in extreme heat, how he communicated with the rest of the 

family, how he ran his operation, and, most significantly, how 

he devised his estate. Donna testified that when she expressed 

disagreement with Walter’s plans to leave most of his assets to 

Dickie and Douglas, Walter responded, “‘Dick[ie] says this is 
- 569 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

how it should be.’” And there was evidence that it was Dickie 

who informed Debra of certain provisions of the 2014 will 

and, in tandem with his wife, argued with Debra when she 

objected, while Walter sat silent. Dickie admitted that he told 

Walter that if he divided his estate equally among his children 

as he had long planned, it would likely be sold to someone 

outside the family after his death because the children could 

not get along.

We are also unpersuaded by Dickie’s allegation that proof of 

undue influence failed because the 2014 will was not executed 

in secret. We have observed that undue influence can be difficult to prove because it is “usually surrounded by all possible 

secrecy” and “[is] not exert[ed] in a crowd.” In re Estate of 

Hedke, 278 Neb. 727, 743, 775 N.W.2d 13, 28 (2009). But 

we have not required secrecy to prove undue influence, and 

we made the foregoing observations to explain why undue 

influence often rests on inferences drawn from circumstantial 

evidence. See id. “Such evidence shows a course of conduct 

over a period of time intended to influence the mind of the testator.” In re Estate of Villwok, 226 Neb. 693, 698, 413 N.W.2d 

921, 925 (1987). Here, the jury could have inferred that 

Walter’s informing his family about the content of the 2014 

will weighed against a finding of undue influence, but it would 

not have been unreasonable for the jury to make the opposite 

inference that these communications were a product of undue 

influence that Dickie had already exerted largely in secret. The 

fact that Walter did not conceal the provisions of the 2014 will 

from his children does not render the jury’s undue influence 

finding unreasonable.

2. Text Message

Dickie next presents two assignments of error related to 

Debra’s counsel’s reference during the cross-examination of 

Wylie to a purported text message sent by Dickie’s wife. 

He first argues that the district court erred by allowing the 

question and not immediately striking Wylie’s answer from 
- 570 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

the record. Additionally, he argues that the district court’s 

response to counsel’s reference to the text message in closing 

arguments was plain error. We disagree with both of Dickie’s 

arguments.

Beginning with Dickie’s contentions regarding the initial 

cross-examination, Dickie asserts that the question Debra’s 

counsel asked about the purported text message was improper, 

because the text message was not in evidence. According 

to Dickie, the only reason Debra’s counsel could have had 

for asking the question was to get information damaging to 

Dickie’s case that was not admitted into evidence before the 

jury. For these reasons, Dickie argues that the district court 

abused its discretion by not sustaining his objection and granting his motion to strike Wylie’s answer.

There is no dispute that at the time the question at issue was 

asked, no evidence had been admitted of Dickie’s wife’s sending a text message like the one described by Debra’s counsel. 

Likewise, there is no dispute that no such evidence was ever 

admitted. Based on our record, then, we must treat the question as a hypothetical question that assumed facts that were not 

yet, and never were, admitted into evidence. Even framed this 

way, however, we conclude that the district court could, within 

the bounds of its discretion, permit the question and overrule 

Dickie’s motion to strike.

There may be circumstances in which a party wishes to 

cross-examine an expert witness by asking a hypothetical question that refers to certain facts not yet in evidence. Although 

this court does not appear to have specifically addressed the 

matter, a number of courts and commentators have recognized 

that, in such a situation, a trial court has discretion to permit 

the question even though the supporting evidence has not been 

admitted. As the Illinois Supreme Court has explained, a trial 

court can permit a party to ask a question that assumes facts 

not yet in evidence in cross-examination, because the crossexamining party may not have yet had the opportunity to 

present the evidence referred to in the question. See Coriell v. 
- 571 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Industrial Com., 83 Ill. 2d 105, 413 N.E.2d 1279, 46 Ill. Dec. 

166 (1980). If such a question is permitted and the evidence 

never materializes, that court explained, there is a safeguard—a 

subsequent motion to strike by the opposing party. See id.

The Hawaii Supreme Court reached the same basic conclusion in Barretto v. Akau, 51 Haw. 383, 463 P.2d 917 (1969), 

as to hypothetical questions that were based on facts not yet 

in evidence and aimed at demonstrating an alternative theory 

or contesting a substantive element of the case. That court 

also held that a trial court could permit such questions if the 

cross-examiner anticipated in good faith that the facts would 

be established later in the trial. It also explained that if the 

cross-examining party failed to eventually introduce evidence 

of the facts assumed, the opponent’s remedy was a motion to 

strike at the close of all evidence. See, also, United States v. 

Benford, 479 Fed. Appx. 186 (11th Cir. 2011) (finding no error 

in case in which trial court permitted line of questioning which 

assumed facts not yet in evidence on assumption that questioning party would later introduce evidence supporting assumptions and opposing party did not request curative instruction 

when such evidence was not later admitted); 1 McCormick on 

Evidence § 14 at 134 (Robert P. Mosteller ed., 8th ed. 2020) 

(explaining that in most jurisdictions, “there is no invariable 

requirement that the supporting evidence be admitted before 

the interrogating counsel poses the hypothetical question to 

the expert”).

The foregoing authorities persuade us that a trial court does 

not necessarily abuse its discretion if it permits a party to ask 

an expert a question that assumes facts not yet in evidence 

during cross-examination. Having reached this conclusion, we 

can conclude rather easily that the district court did not abuse 

its discretion by allowing the question and overruling Dickie’s 

motion to strike here.

Wylie was the first witness to testify on the second day of 

a 4-day trial. She generally testified that based on her review 

of deposition testimony and other information provided to her, 
- 572 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

she did not believe Walter was susceptible to undue influence. 

Among the materials she considered in forming that opinion 

was the deposition testimony of Dickie’s wife. The question 

at issue made reference to a purported text message sent by 

Dickie’s wife that presumably contradicted that deposition 

testimony. And although Debra’s counsel did not mention that 

Debra intended to offer evidence of the text message at the 

time the question was asked and corresponding objection was 

made, later that same day, he did represent to the district court 

that the text message would be “use[d]” when Dickie’s wife 

was called to testify. Under these circumstances, it was not 

clearly untenable for the district court to permit Debra’s counsel to ask Wylie if a text message like the one described would 

affect her conclusions. See Barnett v. Happy Cab Co., 311 Neb. 

464, 973 N.W.2d 183 (2022) (judicial abuse of discretion exists 

when reasons or rulings of trial judge are clearly untenable, 

unfairly depriving litigant of substantial right and denying just 

results in matters submitted for disposition).

We recognize that Dickie’s wife ultimately did not testify 

and that evidence of the text message was not received into 

evidence. This may have entitled Dickie to a ruling striking 

Wylie’s answer at the close of all evidence, but he did not 

request such a ruling.

[14] This leaves Dickie’s contention regarding the closing 

argument made by Debra’s counsel. Dickie frames his argument in plain error terms. We have said that an appellate court 

may find plain error on appeal when an error unasserted or 

uncomplained of at trial, but plainly evident from the record, 

prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process. State v. Senteney, 307 Neb. 

702, 950 N.W.2d 585 (2020). Generally, we will find plain 

error only when a miscarriage of justice would otherwise 

occur. Id.

We presume Dickie presents a plain error argument because 

he cannot contend that the district court erred in ruling on the 
- 573 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

objection he actually asserted during closing argument. When 

Debra’s counsel first made reference to a text message, Dickie’s 

counsel objected, but the district court sustained the objection 

and directed Debra’s counsel not to refer to the text message.

Unable to establish that the district court erred in response 

to his objection, Dickie apparently argues that the district 

court had an obligation to take additional action in response to 

Debra’s closing argument on its own initiative. Here, Dickie 

takes issue with statements by Debra’s counsel that the text 

message and Wylie’s answer were in evidence and with what 

he contends was an argument by Debra’s counsel that Wylie 

admitted she would reconsider her opinions in light of the 

text message.

To the extent Dickie is arguing that the district court was 

obligated to interrupt Debra’s closing argument sua sponte to 

address the statements to which he now objects, we disagree. 

When considering arguments that a trial court erred by “allowing” testimony to which there was no objection, we have discussed the fact that even when a question or answer is arguably 

improper, sua sponte action by the trial court may interfere 

with a party’s trial tactics by bringing unwanted attention to the 

testimony. See Senteney, supra. In our view, similar considerations apply in the closing argument context.

[15] Neither can we agree with Dickie that the district court 

was obligated to grant his motion for new trial based on the 

closing argument of Debra’s counsel. A motion for new trial 

is to be granted only when error prejudicial to the rights of 

the unsuccessful party has occurred. Hemsley v. Langdon, 299 

Neb. 464, 909 N.W.2d 59 (2018). Further, we review the district court’s denial of the motion for new trial for an abuse of 

discretion. See id. We discern no such abuse. The district court 

sustained Dickie’s objection and precluded Debra’s counsel 

from referring to the text message in oral argument. Although 

Debra’s counsel stated that the text message was in evidence, 

we understand that statement to have been made as an argument to the district court responsive to Dickie’s objection, 
- 574 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

not an argument to the jury. In any event, the jury had been 

instructed that statements, arguments, and objections by attorneys were not evidence. And we do not understand Debra’s 

counsel to have clearly argued that Wylie admitted she would 

have to reconsider her opinions in light of the text message.

3. Attorney Fees and Expenses

In her cross-appeal, Debra argues that the district court erred 

when it ordered that Dickie was entitled to attorney fees and 

expenses incurred in defending the will contest proceeding. 

Before reaching this issue, however, it is our duty to determine 

whether we have jurisdiction to decide it. See Green v. Seiffert, 

304 Neb. 212, 933 N.W.2d 590 (2019).

When a lower court lacks subject matter jurisdiction to 

decide an issue, an appellate court also lacks the power to 

resolve the issue. See In re Estate of Evertson, 295 Neb. 301, 

889 N.W.2d 73 (2016). This case presents a question as to 

whether the district court had subject matter jurisdiction to 

order that Dickie was entitled to attorney fees and expenses 

pursuant to § 30-2481. Although not initially raised by the 

parties, we directed the parties to file supplemental briefs on 

the issue. In their respective supplemental briefs, Debra argues 

that the district court lacked jurisdiction and that any award 

of attorney fees pursuant to § 30-2481 must be ordered by the 

county court, while Dickie maintains that the district court had 

jurisdiction to make its attorney fees order.

We begin our analysis by reviewing various statutory provisions that we believe are helpful in framing the question. First, 

under Neb. Rev. Stat. § 24-517(1) (Reissue 2016), county 

courts have exclusive jurisdiction over all matters relating to 

decedents’ estates, including the probate of wills and construction thereof. See In re Estate of Forgey, 298 Neb. 865, 906 

N.W.2d 618 (2018). Notwithstanding this grant of authority to 

county courts, § 30-2429.01 authorizes parties to transfer proceedings regarding the validity of a will to the district court. 

Section 30-2429.01 provides, in relevant part:
- 575 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

(3) Upon the filing of the certification as provided in 

subsection (2) of this section in the district court, such 

court shall have jurisdiction over the proceeding on the 

contest. Within thirty days of the filing of such certification, any party may file additional objections.

(4) The district court may order such additional pleadings as necessary and shall thereafter determine whether 

the decedent left a valid will. Trial shall be to a jury 

unless a jury is waived by all parties who have filed 

pleadings in the matter.

(5) The final decision and judgment in the matter 

transferred shall be certified to the county court, and proceedings shall be had thereon necessary to carry the final 

decision and judgment into execution.

Dickie sought an award of attorney fees in the district court 

pursuant to § 30-2481, which provides: “If any personal representative or person nominated as personal representative 

defends or prosecutes any proceeding in good faith, whether 

successful or not he is entitled to receive from the estate his 

necessary expenses and disbursements including reasonable 

attorneys’ fees incurred.”

We believe the following section, § 30-2482, is also relevant. Subsection (1) of § 30-2482 provides:

After notice to all interested persons or on petition of an 

interested person or on appropriate motion if administration is supervised, the propriety of employment of any 

person by a personal representative including any attorney, [or] the reasonableness of the compensation of any 

person so employed, . . . may be reviewed by the court.

Subsection (2) of § 30-2482 lists a number of factors that 

may be considered in determining the reasonableness of a fee.

In our view, the question of whether the district court had 

jurisdiction to order that Dickie receive an award of attorney fees and expenses pursuant to § 30-2481 depends on the 

scope of authority granted to the district court by statute. We 

find the scope of the district court’s statutory authority to be 
- 576 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

crucial, because the district court’s general jurisdiction does 

not extend to probate matters, and thus, any district court 

authority over such matters is derived from and limited by 

legislative grant. See In re Estate of Sehi, 17 Neb. App. 697, 

772 N.W.2d 103 (2009).

On the subject of statutory authority, § 30-2429.01(4) plainly 

authorizes the district court to determine whether the decedent 

left a valid will. In one of our recent opinions, we cited that 

subsection for the proposition that a district court’s authority 

over a will contest is “limited to determin[ing] whether the 

decedent left a valid will.” See Bohling v. Bohling, 309 Neb. 

625, 634, 962 N.W.2d 224, 231 (2021). Debra relies on that 

language to argue that the district court lacked authority to 

also order that Dickie be reimbursed for his attorney fees and 

expenses pursuant to § 30-2481. We believe that this issue is 

slightly more complicated and that we cannot resolve it merely 

by citing this language in Bohling, supra.

While § 30-2429.01(4) does direct that the district court is 

to determine whether the challenged will was valid, subsection 

(3) provides that when a will contest is duly transferred to the 

district court, the district court obtains “jurisdiction over the 

proceeding on the contest.” We understand this language to 

give the district court jurisdiction over the will contest proceeding and thus the authority to resolve issues that bear on 

whether the decedent left a valid will. We recognized as much 

in Bohling, supra, stating that the district court in a will contest may decide issues of will construction to the extent they 

bear on the will’s validity. Because the district court is given 

jurisdiction over the will contest proceeding, we also understand the district court to have the authority to issue orders 

instrumental to a determination of whether the challenged will 

is valid on matters such as the admissibility of evidence or the 

conduct of discovery.

We disagree with Dickie, however, that a determination 

of whether a personal representative or nominated personal 

representative should be reimbursed by the estate for attorney 
- 577 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

fees incurred in a will contest pursuant to § 30-2481 is rightfully encompassed within the will contest proceeding. Instead, 

we are persuaded that such a determination is part of the rest 

of the probate proceeding and committed to the jurisdiction of 

the county court. This conclusion is informed by §§ 30-2481 

and 30-2482. As described above, § 30-2481 provides that 

a personal representative or nominated personal representative is, under certain conditions, entitled to be reimbursed by 

the estate for expenses incurred in estate litigation, including 

reasonable attorney fees. And, as described above, § 30-2482 

directs that a personal representative’s employment of persons, 

including attorneys, and the reasonableness of compensation 

paid to such persons are subject to court review.

[16] We find that the foregoing statutes pertain to the same 

subject matter and are thus subject to our principle of statutory interpretation governing statutes in pari materia. As we 

often say, components of a series or collection of statutes 

pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions 

are consistent, harmonious, and sensible. In re William R. 

Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 

(2021). Applying this principle here, we find that § 30-2482 

sets forth the procedure by which a court is authorized to 

determine whether and to what extent a personal representative or nominated personal representative is entitled to be 

reimbursed from the estate for expenses in estate litigation 

pursuant to § 30-2481. Importantly, § 30-2482 provides that 

such review is to be completed by “the court.” This is significant because, under the Nebraska Probate Code, with an 

exception not applicable here, “the court” is defined to refer 

to the county court unless “the context otherwise requires.” 

See Neb. Rev. Stat. § 30-2209 (Reissue 2016). We do not 

believe that the context of § 30-2482 requires that “the court” 

mean anything other than the county court, as provided in 

§ 30-2209.
- 578 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

We find confirmation of our conclusion that § 30-2482 

provides the procedure by which a court can review claims 

for reimbursement pursuant to § 30-2481 in an opinion of 

the North Dakota Supreme Court. See Matter of Estate of 

O’Connell, 476 N.W.2d 8 (N.D. 1991). That court interpreted 

North Dakota statutes based on the same Uniform Probate 

Code provisions upon which §§ 30-2481 and 30-2482 are 

based. It found that claims for reimbursement for estate litigation sought under § 30-2481’s North Dakota counterpart were 

subject to court review pursuant to § 30-2482’s North Dakota 

counterpart. See Matter of Estate of O’Connell, supra.

We are not swayed from our conclusion that a determination under § 30-2481 is committed to the jurisdiction of the 

county court by Dickie’s reliance on In re Estate of Miller, 231 

Neb. 723, 437 N.W.2d 793 (1989), disapproved, In re Estate 

of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022). In that 

case, this court held that a county court lacked authority to 

tax costs and fees for the allegedly vexatious pursuit of a will 

contest. In doing so, however, we noted that there was no provision in the Nebraska Probate Code relating to the assessment 

of costs and attorney fees in a will contest action which had 

been transferred to a district court and that there was a statute 

authorizing the district court to order a party who pursued proceedings vexatiously or for delay to pay costs to the adverse 

party. See In re Estate of Miller, supra citing Neb. Rev. Stat. 

§ 24-541.10(2) (Reissue 1985).

In this case, unlike In re Estate of Miller, supra, Dickie is 

not asking that an opposing party be ordered to pay his costs 

on the grounds that the opposing party engaged in vexatious 

litigation. As we have discussed, he has asked that he be reimbursed by the estate pursuant to § 30-2481. And that is not the 

only difference between this case and In re Estate of Miller,

supra. While our opinion in In re Estate of Miller noted the 

absence of a provision in the Nebraska Probate Code addressing the type of fees sought and a specific statute authorizing 

the district court to order such fees, as we have discussed, the 
- 579 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF KOETTER

Cite as 312 Neb. 549

Nebraska Probate Code has committed the determination of 

whether a party is entitled to reimbursement under § 30-2481 

to the county court.

Although we find that a party’s entitlement to reimbursement under § 30-2481 is committed to the county court, we 

recognize that during a will contest proceeding in district court, 

the district court may have the occasion to, directly or indirectly, weigh in on whether a nominated personal representative’s defense of the will contest was undertaken in good faith. 

Nothing in this opinion should be read to preclude the county 

court from considering any such statements along with the rest 

of the district court record in assessing whether the proceeding 

was defended in good faith.

For these reasons, we find that the district court lacked jurisdiction to find that Dickie was entitled to attorney fees pursuant to § 30-2481. When we determine that we lack jurisdiction 

over the decision of a lower court because the lower court 

lacked jurisdiction, we have the power to vacate the void order 

of the lower court and, if necessary, to remand the cause with 

appropriate directions. See Davis v. Moats, 308 Neb. 757, 956 

N.W.2d 682 (2021). We therefore vacate the portion of the district court’s order finding that Dickie was entitled to attorney 

fees and expenses pursuant to § 30-2481.

V. CONCLUSION

Because the district court lacked jurisdiction to enter its 

order awarding attorney fees pursuant to § 30-2481, we vacate 

that order and dismiss the cross-appeal. As to the issues raised 

on appeal, we affirm.

Affirmed in part, and in part 

vacated and dismissed.