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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

BOHLING v. BOHLING

Cite as 309 Neb. 625

Robert Bohling, appellant, v. 

Kimberly Bohling, appellee.

___ N.W.2d ___

Filed July 2, 2021. No. S-20-502.

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

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

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

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

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

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

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

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

inferences deducible from the evidence.

3. Wills: Appeal and Error. Whether a provision in a will is too uncertain 

to be valid presents a question of law which an appellate court reviews 

de novo.

4. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court reaches a conclusion independent of the determination 

reached by the court below.

5. Decedents’ Estates: Wills. When a will contest is transferred from 

the probate court to the district court pursuant to Neb. Rev. Stat. 

§ 30-2429.01 (Reissue 2016), the district court’s authority over the proceedings is limited to determining whether the decedent left a valid will.

6. ____: ____. Issues regarding construction of the will are properly left to 

the probate court, except where they bear on the will’s validity.

7. ____: ____. A will’s validity can be attacked on grounds of lack of testamentary capacity, fraud, undue influence, improper execution, forgery, 

or a subsequent revocation of the will by a later document. Additionally, 

the validity of a provision in a will or codicil can be challenged on 

grounds it is too indefinite or uncertain to effectuate any testamentary 

purpose of a will under Nebraska law.

Nebraska Supreme Court Online Library

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

07/02/2021 08:10 AM CDT
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BOHLING v. BOHLING

Cite as 309 Neb. 625

8. ____: ____. Generally, in testamentary dispositions of property, both the 

property and the person to whom it is given must be set forth with sufficient certainty that the court can give effect to the disposition.

9. Summary Judgment: Affidavits. Affidavits used to support and oppose 

a motion for summary judgment must be made on personal knowledge, 

must set forth such facts as would be admissible in evidence, and shall 

show affirmatively that the affiant is competent to testify to the matters 

stated therein.

10. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact 

for purposes of summary judgment.

Appeal from the District Court for Johnson County: Ricky 

A. Schreiner, Judge. Affirmed.

Angelo M. Ligouri, of Ligouri Law Office, for appellant.

Richard R. Smith for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

In this will contest case, Robert Bohling appeals from the 

district court’s entry of summary judgment finding that his 

father left a valid will. We affirm.

I. BACKGROUND

Willis D. Bohling (Bohling) died on March 27, 2018. He 

was survived by two adult children, Kimberly Bohling and 

Robert, as well as Robert’s two minor sons. Bohling left a selfproved will, 1 dated July 13, 2015, which provided in part:

I, WILLIS BOHLING, presently of rural Tecumseh, 

Johnson County, Nebraska, do make publish and declare 

this to be my Last Will hereby revoking all Wills formerly 

made by me.

FIRST: I do hereby appoint my daughter, Kimberly 

Bohling, Personal Representative of my Estate. If 

1 Neb. Rev. Stat. § 30-2329 (Reissue 2016).
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Kimberly Bohling is unable or unwilling to serve as 

Personal Representative, then and in that event, I do hereby 

appoint my son, Robert Bohling, Personal Representative 

of my Estate. In either event, I do direct that my Personal 

Representative shall not be required to post Bond.

SECOND: All of the balance residue and remainder 

of my Estate, whether real or personal and regardless of 

where situated, I do hereby give devise and bequeath unto 

my daughter, Kimberly Bohling. I am not unmindful of 

my son, Robert Bohling, but it is my Will that he receive 

nothing hereunder.

Paragraph “SECOND” contains the only dispositional provision in Bohling’s will, and it is the focus of this will contest.

1. Probate Proceedings

In April 2018, Kimberly initiated informal probate proceedings in the county court for Johnson County and was appointed 

personal representative of Bohling’s estate. Thereafter, Robert 

entered his appearance and objected to the application for 

informal probate and to Kimberly’s appointment as personal 

representative. Robert also filed a petition seeking dismissal of 

the informal probate application and requesting a determination of intestacy, a determination of heirs, and appointment of 

a special administrator.

In his objection, Robert presented three reasons why the 

2015 will should not be probated. He claimed that (1) the 2015 

will was “incomplete,” because it referred only to the “‘balance 

residue and remainder’” of Bohling’s estate and thus failed to 

make a devise of the entire estate; (2) Bohling lacked testamentary capacity when he executed the will; and (3) the will was 

the product of Kimberly’s undue influence. Kimberly denied 

Robert’s allegations, and the will contest was transferred to the 

district court for Johnson County to determine whether Bohling 

left a valid will. 2

2 See Neb. Rev. Stat. § 30-2429.01(1) (Cum. Supp. 2020).
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BOHLING v. BOHLING

Cite as 309 Neb. 625

2. District Court Proceedings

In the district court, Kimberly moved for summary judgment, asserting the will was valid and should be admitted to 

probate. After an evidentiary hearing, the district court granted 

summary judgment in Kimberly’s favor, and Robert appealed. 

After moving the appeal to our docket, we noted that the bill 

of exceptions contained only Robert’s evidence opposing summary judgment. Because Kimberly’s exhibits had not been 

properly marked and received into evidence, we concluded 

the appellate record did not support summary judgment in 

Kimberly’s favor, and we reversed the judgment and remanded 

the cause for further proceedings. 3

On remand, both parties moved for summary judgment. At 

the hearing on the competing summary judgment motions, 

the district court received a certified copy of Bohling’s 2015 

will. Both parties offered affidavits, which the court received 

over objections. In overruling the various objections, the court 

stated it would not consider any evidence that lacked foundation, was irrelevant, or amounted to inadmissible hearsay or 

improper opinions and conclusions. As relevant to the issues on 

appeal, we summarize the evidence received on the competing 

summary judgment motions.

(a) Kimberly’s Evidence

To support her contention that Bohling’s 2015 will was 

valid, Kimberly offered her own affidavit and the affidavit of 

the attorney who drafted the will, Thomas Morrissey.

(i) Morrissey’s Affidavit

Morrissey averred that he has actively practiced law in 

Nebraska for 59 years. Sometime in 2015, Bohling scheduled a 

meeting at Morrissey’s office to discuss drafting a will. Bohling 

arrived for the meeting alone, and he and Morrissey discussed 

at length the nature and extent of Bohling’s property and 

3 See Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
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Cite as 309 Neb. 625

the identity of Bohling’s natural heirs. Bohling expressed his 

intent to leave all of his property to Kimberly and to disinherit 

Robert, and he directed Morrissey to draft a will in accordance 

with those intentions. After the consultation, Morrissey was 

satisfied that Bohling had the capacity to make a will, and he 

drafted a will pursuant to Bohling’s instructions.

Bohling returned to Morrissey’s office on July 13, 2015, 

and again he was alone. Morrissey discussed the proposed will 

with Bohling, and Bohling appeared to have no difficulty following the discussion. After Bohling reviewed the proposed 

will, two witnesses joined them. While the witnesses were 

present, Bohling confirmed he had read the proposed will, it 

represented his last will and testament, he understood the attestation clause of the will, and he wanted the individuals present 

to witness him sign the will. Bohling also confirmed he was 

signing the will freely and voluntarily, he was over 18 years 

of age, he was of sound mind, and he was under no constraint 

or undue influence. Morrissey was satisfied that Bohling had 

testamentary capacity when he signed the will and that he was 

not being unduly influenced by anyone to do so.

(ii) Kimberly’s Affidavit

Kimberly averred that Bohling lived alone from 2009 until 

his death in 2018, during which time he managed his own 

finances and generally took care of his own daily activities. 

During Kimberly’s conversations with Bohling throughout 

2015, she did not observe Bohling to be unclear in his thoughts, 

to be unable to communicate his wishes clearly, or to exhibit 

any memory problems. Kimberly denied ever discussing the 

disposition of Bohling’s property with him. She also denied 

encouraging Bohling to execute a will, and she averred that she 

did not become aware of his 2015 will until after his death.

(b) Robert’s Evidence

At the summary judgment hearing, Robert offered his own 

affidavit and affidavits from several of Bohling’s friends. 
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BOHLING v. BOHLING

Cite as 309 Neb. 625

We summarize only the portions of these affidavits that are 

relevant to the issues raised on appeal.

(i) Robert’s Affidavit

Robert generally averred that he and his sons had a close 

relationship with Bohling. They often worked together on 

Bohling’s farm, splitting wood to heat the farm residence and 

helping to maintain the farm, the fencing, and the equipment. 

Robert’s sons also helped Bohling with weekly “dog chores,” 

and Robert’s wife, a veterinarian, provided free vaccinations to 

Bohling’s cattle.

Robert averred that “[t]hroughout my father’s lifetime, and 

even as recently as a few months before his death, he told me 

everything he owned would be split 50/50 between [Kimberly] 

and me.” By way of example, Robert averred that the tract of 

land on which Bohling lived “was owned by my sister and 

I, together, as our parents wanted it that way,” and he stated 

that after their mother died in 2009, he and Kimberly each 

received some of their parents’ possessions because the parents 

“wanted their property passed down to us equally.” Robert 

posits that “[i]f [Bohling] had no intentions of me receiving 

any of his possessions, then he would not have told me which 

antiques, guns, farm equipment, tools, and safe deposit box to 

keep.” According to Robert, Bohling had “specific things he 

wanted to leave and pass down” to his only two grandsons, 

and there was “no way that my father would have disinherited 

me, because he would have known that meant disinheriting 

my boys.”

Robert also expressed his opinion that Bohling’s 2015 will 

was “incomplete” because it referred only to the “‘balance residue and remainder’” of his estate and not to “his entire Estate.” 

According to Robert, “[t]here would be absolutely no way 

that my father would have known that ‘balance residue and 

remainder’ was going to be turned into everything he owns, 

and not the balance or residue that would be left over after 
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BOHLING v. BOHLING

Cite as 309 Neb. 625

[his] specific intentions were carried out.” Robert suggests the 

language of the will showed that Bohling’s intentions “were to 

only transfer the leftovers, the remains after his two children 

split what he intended us to receive, just [as] he stated to us 

and just as been done with us throughout our entire lives.”

Robert also opined that Bohling’s 2015 will was the product 

of Kimberly’s undue influence. According to Robert, Kimberly 

was “regularly” at Bohling’s house and “the only way [Bohling] 

would have had a [w]ill is at Kimberly’s consistent demand 

for one.”

(ii) Affidavits of Bohling’s Friends

Robert also submitted affidavits from four of Bohling’s 

friends, including the woman Bohling was dating before his 

death. As relevant to the issues on appeal, these individuals 

generally averred that throughout his life, Bohling expressed 

his intent to divide his personal property equally between 

Robert and Kimberly. All of Bohling’s friends described a good 

relationship between Bohling and Robert, and all expressed 

their opinion that Bohling would not have deliberately disinherited Robert. Specifically, one friend expressed that “[i]t 

would’ve . . . been completely out of character for [Bohling] to 

disinherit [Robert] and in turn disinherit his two grandchildren, 

considering how proud he always was of them.” Another 

expressed that Bohling “always maintained a close relationship 

with [Robert]” and “I can securely say, that he would never 

have intentionally disinherited his son and grandchildren.” 

Still another friend stated he did not “believe that there is any 

circumstance that in sound mind and body [Bohling] would 

have disinherited his son.” And the woman Bohling was dating stated that she did not think Bohling “would have chosen 

or intended to disinherit his only son.” She believed “there 

must have been a miscommunication, misunderstanding, or 

misrepresentation to [Bohling] that would have created such 

a circumstance.”
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BOHLING v. BOHLING

Cite as 309 Neb. 625

(c) District Court’s Judgment

In an order entered June 19, 2020, the district court granted 

summary judgment in favor of Kimberly, finding that she met 

her burden of establishing a validly executed will pursuant to 

Neb. Rev. Stat. § 30-2431 (Reissue 2016) and that Robert’s 

evidence failed to create a genuine issue of fact regarding the 

will’s validity.

The court specifically rejected Robert’s claim that the dispositional provision in the will was invalid. It noted that paragraph 

“SECOND” contained the only dispositional provision in the 

will, and although the court described the language as “somewhat unartful,” it concluded that the contested provision was a 

“clear, unambiguous devise and/or distribution of [Bohling’s] 

entire estate.” The court expressly rejected Robert’s contention 

that a general residuary clause must be preceded by a specific 

bequest to be effective, reasoning that such a position was contrary to the rule of construction expressed in Neb. Rev. Stat. 

§ 30-2342 (Reissue 2016), which states that “a general residuary clause in a will . . . is construed to pass all property which 

the testator owns at his death including property acquired after 

the execution of the will.”

The court also found no genuine issue of fact regarding 

Bohling’s testamentary capacity. It reasoned that Bohling’s 

self-proved will established prima facie proof of testamentary 

capacity, 4 and Robert’s affidavits did not rebut that presumption because they contained only “unsupported opinions” and 

“no facts” from which the court could reasonably infer that 

Bohling lacked testamentary capacity. The court further found 

that Morrissey’s affidavit fully supported the conclusion that 

Bohling possessed testamentary capacity at the time he executed the will.

Finally, the court found no genuine issue of material fact 

regarding Robert’s claim that Bohling’s will was the product 

4 See In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994).
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Cite as 309 Neb. 625

of Kimberly’s undue influence. The court reasoned that to prevail on such a claim, Robert had to prove by a preponderance 

of the evidence that (1) the testator was subject 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. 5 It found that 

Robert had failed to adduce any evidence “as to how or when 

[the undue influence was] to have taken place” and that therefore, he had not established there was a factual issue to prevent 

summary judgment on the issue of undue influence.

After concluding the evidence was undisputed that Bohling 

left a valid will, the district court sustained Kimberly’s 

motion for summary judgment, overruled Robert’s competing 

motion, and certified its judgment to the county court. 6 Robert 

timely appealed, and we moved the case to our docket on our 

own motion.

II. ASSIGNMENTS OF ERROR

Robert assigns five errors, which we consolidate and restate 

into two. He claims the district court erred in granting summary 

judgment in favor of Kimberly because (1) the dispositional 

provision in Bohling’s will was incomplete, and therefore 

invalid, and (2) there were genuine factual disputes regarding 

testamentary capacity and undue influence which should have 

precluded summary judgment, but the court failed to consider 

Robert’s evidence or afford him the benefit of all reasonable 

inferences from that evidence.

III. STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

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

5 See In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). See, also, 

§ 30-2431 (contestant of will has burden to establish undue influence).

6 See § 30-2429.01(5).
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or as to the ultimate inferences that may be drawn from the 

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

matter of law. 7 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 8

[3,4] Whether a provision in a will is too uncertain to be 

valid presents a question of law which an appellate court 

reviews de novo. 9 When reviewing questions of law, an appellate court reaches a conclusion independent of the determination reached by the court below. 10

IV. ANALYSIS

1. Will Contests Transferred 

to District Court

[5] Before analyzing Robert’s assigned errors, we address 

the jurisdictional constraints that are present when a will contest is transferred from probate court to district court pursuant 

to § 30-2429.01. It is necessary to address jurisdiction because 

both parties’ appellate briefing devotes considerable argument 

to how certain provisions in Bohling’s will—namely the dispositional provision and the provision regarding disinheritance 

in paragraph “SECOND”—should be construed. But when 

a will contest is transferred to the district court pursuant to 

§ 30-2429.01, the district court’s authority over the proceedings is limited to “determin[ing] whether the decedent left a 

valid will.” 11 And once the county court clerk transmits the 

7 Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).

8 Id.

9 See In re Estate of Casselman, 219 Neb. 516, 364 N.W.2d 27 (1985). See, 

also, Foster v. Foster, 196 W. Va. 341, 472 S.E.2d 678 (1996) (whether 

will is invalid due to uncertainty presents legal question).

10 See In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).

11 § 30-2429.01(4). See, also, In re Estate of Casselman, supra note 9.
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required certification and docket fee to the district court clerk, 

the district court has “jurisdiction over the proceeding on the 

contest.” 12 Given the jurisdictional parameters of a will contest transferred from probate court to district court pursuant to 

§ 30-2429.01, the narrow question before the district court in 

this case was whether Bohling left a valid will. 13 Similarly, our 

appellate review is confined to whether the district court erred 

in granting summary judgment in favor of Kimberly on the 

question of whether Bohling left a valid will.

[6] Consequently, although the parties have focused much 

of their argument on how to construe provisions in the will, 

we will consider such arguments only insofar as they bear on 

the will’s validity. Similarly, to the extent some of the district 

court’s comments can be read to express an opinion on the 

proper construction of the will’s dispositional language or the 

disinheritance provision, we disapprove of such a reading. Any 

issues regarding construction of the will are properly left to the 

probate court, except where they bear on the will’s validity. 14

With this framework in mind, we address Robert’s assignments of error.

2. Validity of Bohling’s Will

[7] A will’s validity can be attacked on grounds of “‘lack 

of testamentary capacity, fraud, undue influence, improper 

execution, forgery, or a subsequent revocation of the will by a 

12 See § 30-2429.01(3) (emphasis supplied).

13 See § 30-2429.01(3). See, also, In re Estate of Sehi, 17 Neb. App. 697, 

772 N.W.2d 103 (2009) (holding district court’s jurisdiction to hear will 

contest pursuant to § 30-2429.01 is limited to determining validity).

14 See Neb. Rev. Stat. § 30-2211 (Reissue 2016) (providing county courts 

have jurisdiction over decedents’ estates, including construction of wills). 

See, also, Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019) 

(holding, in declaratory judgment action seeking construction of will, that 

when county courts and district courts have concurrent jurisdiction over 

construction of will, doctrine of jurisdictional priority applies and first 

court to acquire jurisdiction retains it).
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later document.’” 15 Additionally, the validity of a provision in 

a will or codicil can be challenged on grounds it is too indefinite or uncertain to effectuate any testamentary purpose of a 

will under Nebraska law. 16 In this will contest, Robert originally challenged the validity of Bohling’s 2015 will on three 

grounds: lack of testamentary capacity, undue influence, and 

uncertainty of the will’s only dispositional provision.

When the validity of a will is contested, the proponent of the 

will has “the burden of establishing prima facie proof of due 

execution, death, testamentary capacity, and venue,” whereas 

contestants have “the burden of establishing undue influence, 

fraud, duress, mistake[,] or revocation.” 17

Robert has never claimed that Kimberly failed to meet her 

burden of establishing death, venue, or due execution, and 

we discern no genuine issue of material fact regarding any of 

those issues. We therefore focus our analysis on whether the 

district court erred in granting summary judgment in favor of 

Kimberly on the contested issues of (1) whether the dispositional provision of the will fails for uncertainty, (2) whether 

Bohling lacked testamentary capacity, and (3) whether the will 

was the result of Kimberly’s undue influence.

(a) Dispositional Provision Does 

Not Fail for Uncertainty

We understand Robert’s primary challenge to the validity of the will to center on the first sentence of paragraph 

“SECOND,” which provides: “All of the balance residue and 

15 Martin v. Ullsperger, 284 Neb. 526, 530, 822 N.W.2d 382, 385 (2012), 

quoting Annot., 3 A.L.R. 5th 590 (1992). See, also, In re Estate of Barger, 

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

16 See, In re Estate of Casselman, supra note 9 (holding provisions in 

codicil failed for uncertainty, and thus entire codicil was invalid); Kepley 

v. Caldwell, 96 Neb. 748, 148 N.W. 966 (1914) (holding residuary clause 

in will was too indefinite and uncertain for enforcement and thus was 

invalid).

17 § 30-2431.
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remainder of my Estate, whether real or personal and regardless 

of where situated, I do hereby give devise and bequeath unto 

my daughter, Kimberly Bohling.” Robert describes this provision as a residuary clause that devised only the “leftovers” 18 of 

Bohling’s estate. To the extent Robert’s arguments can be construed as challenging the validity of the will at all, he suggests 

the will is invalid because its only dispositional provision is 

“explicitly reliant on a prior transfer occurring,” 19 and the will 

contains no other defined bequests. His argument, essentially, 

is that this provision is too incomplete, indefinite, or uncertain 

to effectuate any testamentary disposition. The district court 

rejected Robert’s suggestion, and so do we.

[8] As already noted, the validity of a provision in a will 

or codicil can be challenged on grounds it is too indefinite or 

uncertain to effectuate any testamentary purpose. 20 Generally, 

in testamentary dispositions of property, both the property and 

the person to whom it is given must be set forth with sufficient 

certainty that the court can give effect to the disposition. 21 And 

since paragraph “SECOND” is the only dispositional provision 

in Bohling’s will, it follows that if the only dispositional provision fails, the will would be invalid because a testamentary 

disposition is a necessary component of a valid will. 22 But we 

agree with the district court that the dispositional provision in 

Bohling’s will does not fail for uncertainty.

The district court characterized the dispositional provision 

in paragraph “SECOND” as a general residuary clause, and it 

18 Brief for appellant at 24.

19 Id.

20 See, In re Estate of Casselman, supra note 9; Kepley, supra note 16.

21 See 1 Jeffrey A. Schoenblum, Page on the Law of Wills, § 5.11 (2003).

22 See Neb. Rev. Stat. § 30-2209(53) (Reissue 2016). See, also, 1 Schoenblum, 

supra note 21, §§ 5.3 and 5.4 (noting even when instrument is executed 

with formalities prescribed for wills, if it makes no effective disposition 

of property whatsoever, it is nontestamentary instrument not admissible 

to probate).
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noted the rule of construction established in § 30-2342, which 

states “a general residuary clause in a will or a will making 

general disposition of all of the property of the testator is construed to pass all property which the testator owns at his death 

including property acquired after the execution of the will.” 

Robert takes issue with the district court’s characterization. He 

argues the dispositional provision in Bohling’s will should not 

be construed as a “‘general residuary clause’ capable of transferring [Bohling’s] entire estate,” but, rather, as “a balance and 

remainder clause, transferring only the leftovers.” 23 Robert’s 

brief cites to no legal authority supporting the distinction he 

proposes. But in this will contest, it is not necessary to decide 

whether the sole dispositional provision in Bohling’s will is a 

general residuary clause, some other type of residuary clause, 

or even whether it is a residuary clause at all. 24 That is because, 

as already discussed, matters of will construction, including Robert’s claim that paragraph “SECOND” should not be 

construed as a general residuary clause under § 30-2342, are 

properly left to the probate court. 25

This will contest is confined to the relevant question of 

the will’s validity, and Robert has directed us to no authority supporting a conclusion that the dispositional provision in 

Bohling’s will is too incomplete, indefinite, or uncertain to be 

valid. We review our prior cases addressing invalidity based on 

uncertainty, and find them instructive.

In Kepley v. Caldwell,

 26 we considered a challenge to the 

validity of a residuary clause that provided:

23 Brief for appellant at 26.

24 See, e.g., In re Estate of Johnson, 260 Neb. 91, 615 N.W.2d 98 (2000) 

(discussing split of authority on whether provision purporting to dispose 

of entire estate can ever constitute residuary devise).

25 See, §§ 30-2211 and 30-2429.01; In re Estate of Casselman, supra note 9; 

Brinkman, supra note 14; In re Estate of Sehi, supra note 13.

26 Kepley, supra note 16, 96 Neb. at 749, 148 N.W.2d at 966.
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“All personal property, except money, not otherwise disposed of herein, is to be paid and distributed by my 

executor as follows: To such persons, respectively, as 

were my friends in my lifetime, and he may think suitable 

and appropriate, observing my wishes in regard thereto 

so far as he may know or have reason to believe what 

they were.”

We held that the legatees and bequests in the residuary clause 

were too indefinite and uncertain for enforcement, and thus the 

clause was invalid. 27

In In re Estate of Casselman,

 28 we considered a challenge 

to the validity of a four-page codicil, which we described 

as follows:

The introductory statement in the codicil sets out that 

[the testator] declares “this to be a codicil to alter a will 

and testiment [sic] . . . which at this time it is my feeling is necessary to alter to fit the times and the changed 

situations.” Paragraph “1st” then states: “I hereby revoke 

and hold for naught any or all bequests made to and on 

behalf of [the testator’s son James] in my will or any other 

manner.” In succeeding paragraphs the codicil expresses 

[the testator’s] dissatisfaction with the property settlement 

in a divorce case between [the testator] and his former 

wife [and] provides that [the testator’s daughter Cynthia] 

should have a place to live and should be helped through 

school “by a loan of about half what a kid going through 

on a shoe string would get”; . . . and that if [the testator’s son James] were to quit high school, he “shall be 

provided a room, a TV[,] and $10.00 a month for funny 

books or records until he reaches legal age although if [his 

custody] goes to either one or the other of the executors 

27 See id.

28 In re Estate of Casselman, supra note 9, 219 Neb. at 518-19, 364 N.W.2d 

at 29.
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they shall recieve [sic] the same compensation for support as the other children and the TV, Records Books and 

room is out.” The codicil further provided that if James 

were to stay in school and go through college, he was 

to be helped through with “a nominal amount” and that 

“[i]n event James over comes his laziness disinterest in 

property and management, sloppy and slothful living, laying around, lazyness [sic] and is not so influenced by his 

mother to follow in her footsteps and he has proven himself then he maybe come [sic] a joint administrator of this 

trust . . . .” “This trust” refers to [the testator’s] intention, 

expressed later in the codicil, that “[a]ll of the Casselman 

property shall be a sacared [sic] and God given trust be 

used, beautified and held for our successors” and “for a 

living and forwarding our education.” Paragraph “5th” 

provided: “In event no one is interested in this property 

after the above is fulfilled then a conference shall be held 

equally between the Seventh Day adventist church and 

Harvard preferably Law School, or business School, or 

Divinity School to dispose or use the property . . . .”

Observing that the purported codicil recited “conflicting methods and aims,” 29 we ultimately concluded the entire codicil 

failed for uncertainty and was not entitled to probate.

In contrast to the failed residuary clause in Kepley, and the 

failed codicil in In re Estate of Casselman, the single dispositional provision in Bohling’s will provides: “All of the balance 

residue and remainder of my Estate, whether real or personal 

and regardless of where situated, I do hereby give devise and 

bequeath unto my daughter, Kimberly Bohling.” This provision 

purports to make a testamentary devise of ascertainable real 

and personal property to an identifiable devisee. 30 It is not in 

conflict with any other provision in the will, and neither the 

29 Id. at 520, 364 N.W.2d at 30.

30 See 1 Schoenblum, supra note 21.
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subject nor the object of the devise is so indefinite or uncertain 

as to be invalid. 31

While the proper construction of the language in paragraph 

“SECOND” is a matter properly left to the probate court, we 

conclude as a matter of law that the provision does not fail for 

uncertainty; it is valid and entitled to probate.

(b) No Factual Dispute Regarding 

Testamentary Capacity or 

Undue Influence

In his remaining assignment of error, Robert claims that 

when the court granted summary judgment in favor of Kimberly 

on the issues of testamentary capacity and undue influence, 

it “only considered the evidence presented by Kimberly.” 32

Robert argues that the court ignored statements contained in 

his affidavit and in the affidavits of Bohling’s friends, which 

he claims showed that Bohling “definitely would not have 

disinherited or left his son out of his estate.” 33 Robert does not 

quote or discuss any of the statements he claims were ignored, 

but we understand his argument to pertain to the opinions we 

quoted earlier in the background section, expressing the belief 

that Bohling would not have deliberately disinherited Robert. 

We limit our analysis accordingly.

According to Robert, these opinions created a material issue 

of fact as to both testamentary capacity and undue influence, 

because they suggested “the only way a disinheritance . . . could 

have possibly happened, would have been purely by mistake, 

confusion, miscommunication, or undue influence.” 34 Setting 

aside whether Robert has proposed a reasonable inference 

31 See, e.g., Blacker v. Thatcher, 145 F.2d 255 (9th Cir. 1944) (holding will 

with single dispositional provision referencing residuum of estate was 

sufficiently definite to pass entire estate to identified legatee).

32 Brief for appellant at 27.

33 Id.

34 Id.
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from the opinions contained in the affidavits, we soundly reject 

Robert’s claim that the district court improperly ignored this 

evidence. Instead, we conclude the court aptly characterized 

the statements to which Robert refers as “unsupported opinions” which did not create a genuine issue of fact for purposes 

of summary judgment.

[9,10] Affidavits used to support and oppose a motion for 

summary judgment must be made on personal knowledge, 

must set forth such facts as would be admissible in evidence, 

and “shall show affirmatively that the affiant is competent to 

testify to the matters stated therein.” 35 Moreover, conclusions 

based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of 

summary judgment. 36

In this case, Robert and Bohling’s friends used slightly different language in their affidavits to express the same general 

opinion or belief: that because Bohling had a good relationship 

with Robert, he would not have intentionally disinherited him. 

Kimberly objected to these opinions as being factually unsupported, conclusory, and speculative. The court noted the objections and received the affidavits with the caveat that it would 

“ignore any . . . unsupported conclusions.” Robert should not 

have been surprised, then, when the court expressly found 

that the “unsupported opinions” in Robert’s affidavits did not 

create a genuine issue of material fact for purposes of summary judgment.

Robert does not assign error to the district court’s evidentiary rulings, nor does he argue that the court’s characterization of the statements as “unsupported opinions” was erroneous. Instead, he summarily argues that the district court erred 

when it “failed to consider” 37 the opinions expressed in his 

affidavits. This argument has no merit.

35 Neb. Rev. Stat. § 25-1334 (Reissue 2016).

36 Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).

37 Brief for appellant at 28.
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V. CONCLUSION

Because there is no merit to any of Robert’s assignments 

of error, we affirm the judgment of the district court insofar 

as it determined that Bohling’s 2015 will is valid and entitled 

to probate.

Affirmed.