Matter Of The Estate Of Mcgowan

250 N.W.2d 234 (Neb. 1977)

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Nature of the Case

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Facts

Joseph died, leaving a last will and testament. He was 80 years old and a bachelor. His nearest relatives and only heirs-at-law were two nieces and three nephews, the children of his deceased brother. The proponent, who was the principal beneficiary and executor under the will, was Thomas F. McGowan, a second cousin and a godson of the testator. The estate had a value of approximately $770,000. Approximately $40,000 of that amount was in the stock of Uncle Sam Breakfast Food Company, a closely held family corporation. The will left all the Uncle Sam Breakfast Food Company stock in equal shares to the five nieces and nephews or the survivors of them. The remainder of the estate was left to the First National Bank of Omaha in trust for the benefit of Thomas F. McGowan during his lifetime. Upon his death, or when the younger of his two named sons became 25 years of age, whichever was later, the trust was to terminate and be distributed to the two sons or their children by right of representation. Thomas F. McGowan, the proponent of the will, was a godson of the testator. His father and the testator were first cousins. Appellants contested admission of the will into probate in that Joseph lacked capacity and also from undue influence. The will was admitted. The district court affirmed the admission. The appellants appealed in that the court improperly assigned the burden of proving undue influence onto them when once they made out the prima facie case, the burden should have shifted to Appellees.