Mandate Means Mandate: Limited Remand to the Existing Record and the Non‑Dispositive Role of “Abiding Scheme” Evidence in Nebraska Will Contests

Introduction

In In re Estate of Walker, 320 Neb. 139 (Neb. Oct. 17, 2025), the Nebraska Supreme Court resolved a post‑remand dispute in a hotly contested probate proceeding between two brothers, Mark E. Walker (proponent of a 2021 will) and Michael J. Walker (contestant). The Court’s decision carries two central messages:

• Procedural: When an appellate court issues a specific remand directing reconsideration of “the existing record” with the sole addition of a specified exhibit, the trial court must follow that mandate strictly and may not receive new evidence.
• Substantive: While a prior document demonstrating a testator’s “constant and abiding scheme” of disposition can be admissible (as previously held in the first Walker appeal), such evidence does not control the outcome. The probate court retains discretion to afford that evidence little or no weight, especially when the dispositive questions are the testator’s capacity and susceptibility to undue influence at the time of the later will’s execution.

Against a factual backdrop involving a terminally ill mother, hospice care, heavy medications, and a will executed 11 days before death naming one son as sole beneficiary, the Court affirmed the county court’s refusal to admit the 2021 will to probate, finding no error on the record in the county court’s determinations that (1) the proponent failed to carry his burden of establishing testamentary capacity and (2) the will was the product of undue influence.

Summary of the Opinion

This case arrived at the Supreme Court for a second time. In the first appeal, In re Estate of Walker, 315 Neb. 510, 997 N.W.2d 595 (2023), the Court held it was error to exclude “exhibit 7” (a 2016 notarized document that substantially mirrored the 2021 will), clarifying that evidence of a testator’s constant and abiding scheme is not limited to duly executed prior wills and may be considered to rebut claims of incapacity or undue influence. The Court remanded with specific instructions: reconsider the existing trial record with the sole addition of exhibit 7 and re‑decide capacity and undue influence.

On remand, the county court received exhibit 7 but refused to take new testimony from the decedent’s sister, Mary Williamette Preston, concluding that doing so was outside the scope of the Supreme Court’s mandate. The county court again found that the 2021 will should not be admitted: the proponent failed to establish testamentary capacity, and the will was the product of undue influence. It afforded exhibit 7 “little or no weight” in light of the circumstances surrounding the 2021 execution.

In the 2025 opinion, the Nebraska Supreme Court:

• Affirmed the county court’s adherence to the mandate: the trial court was correct to refuse new evidence beyond exhibit 7.
• Affirmed the merits determinations under the “error on the record” standard: the county court applied correct legal standards, its findings were supported by competent evidence, and its conclusions were neither arbitrary, capricious, nor unreasonable.

Analysis

Precedents Cited and Their Influence

• In re Masek Family Trust, 318 Neb. 268, 15 N.W.3d 379 (2025):
  The Court relied on Masek for core mandate principles:
  • Definition of remand: return of a proceeding for further action in accordance with the remanding order.
  • Specific remand instructions are binding; the lower court lacks discretion to deviate.
  • If remanded without specific instructions, the trial court exercises discretion in further proceedings. Here, the remand was specific.
• In re Estate of Walker, 315 Neb. 510, 997 N.W.2d 595 (2023) (Walker I):
  The prior decision in the same case set two key evidentiary guideposts:
  • Exhibit 7 was admissible under the “then‑existing state of mind” hearsay exception because it bore on the decedent’s intent and mindset.
  • Evidence of a testator’s constant and abiding scheme is not limited to prior duly executed wills. Competent evidence (including an informally executed prior document) can be relevant to rebut undue influence and capacity challenges.
  In this second appeal, the Court enforced the exact scope of that remand—reconsideration of the existing record plus exhibit 7—and confirmed that the weight accorded to exhibit 7 remained a fact question for the county court.
• In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994):
  Reaffirmed that a self‑proved will provides prima facie proof of testamentary capacity. The 2021 will in this case was not self‑proved under § 30‑2329, so the proponent did not enjoy the prima facie presumption and had to prove capacity with other evidence.
• In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989):
  Provided the familiar four‑part test for testamentary capacity and emphasized that capacity is measured at the time of execution.
• In re Estate of Koetter, 312 Neb. 549, 980 N.W.2d 376 (2022):
  Restated the elements of undue influence, underscoring that undue influence can be inferred from surrounding facts and circumstances, but may not be found based on suspicion alone.
• Nebraska Probate Code provisions:
  • § 30‑2431: Allocates burdens in will contests—proponents have the burden of establishing prima facie proof of due execution, death, capacity, and venue; contestants have the burden to establish undue influence, among other challenges; each bears the ultimate burden of persuasion on the issues for which they carry the initial burden.
  • § 30‑2329: Governs self‑proving wills; compliance triggers prima facie proof of testamentary capacity, easing the proponent’s evidentiary burden.

Legal Reasoning

The Court’s reasoning proceeds along two tracks—procedural (mandate compliance) and substantive (capacity and undue influence).

1) Mandate compliance and the scope of remand

• The Supreme Court’s Walker I remand directed the county court “to reconsider the existing record, including exhibit 7,” and expressly declined to prescribe the weight of exhibit 7 or the ultimate judgment.
• Under In re Masek Family Trust, when a mandate is specific, the trial court must follow it strictly; it has no authority to admit new evidence unless the mandate permits it.
• Accordingly, the county court correctly excluded Preston’s testimony and affidavit; allowing them would have deviated from the mandate’s restriction to the existing record plus exhibit 7.

2) Standard of review: error on the record with deference to fact findings

• Probate appeals are reviewed for error on the record; the Nebraska Supreme Court asks whether the judgment conforms to law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable.
• The Court does not reweigh evidence or substitute its own factual findings if competent evidence supports the trial court’s determinations.

3) Testamentary capacity

• Because the will was not self‑proved, the proponent had no prima facie presumption and needed to prove that on September 15, 2021, the decedent:
  • Understood the act of making a will,
  • Knew the nature and extent of her property,
  • Understood the proposed disposition, and
  • Knew the natural objects of her bounty.
• The county court found Mark’s proof “limited” on these specific points. Although there was testimony that the decedent continued to make decisions and that she read and signed the document, the court found insufficient evidence that she met the required understanding of property and disposition at the critical time.
• Evidence that the decedent was on hospice care, taking pain medications and CBD oil, suffering from pancreatic cancer, was frequently drowsy, and was hospitalized two days after execution provided context bearing on capacity at the moment of execution.
• Exhibit 7 was acknowledged as evidence of a constant and abiding scheme but was given “little or no weight” regarding capacity at the 2021 execution—consistent with the rule that capacity is assessed at the time of execution.
• The Supreme Court held that the county court applied the correct standard and that competent evidence supported its finding that the proponent did not meet his burden on capacity.

4) Undue influence

• The contestant bore the burden to prove, by a preponderance of the evidence, that:
  • The decedent was susceptible to undue influence,
  • The alleged influencer had the opportunity,
  • The alleged influencer had a disposition to exercise such influence, and
  • The result was clearly the effect of such influence.
• The county court relied on circumstantial evidence:
  • Decedent’s significant vulnerability (terminal illness, pain, heavy medication) shortly before death.
  • Mark’s involvement in preparing the will, signing as a witness, and arranging execution without involving siblings who were frequently visiting.
  • Credited testimony from nurse Leslie Royal about an earlier incident where Mark threatened the decedent, which the county court treated as probative of disposition to exert influence, even though it occurred a year earlier.
• The court inferred from these facts that the decedent was susceptible; Mark had both opportunity and disposition; and the resulting will—naming Mark the sole beneficiary—was the product of undue influence.
• The Supreme Court rejected the claim that the county court had improperly shifted the burden to the proponent; when read as a whole, the order correctly allocated burdens under § 30‑2431.
• Exhibit 7 was again given little weight on undue influence, which the Supreme Court affirmed as a permissible exercise of fact‑finding discretion.

Impact and Practice Implications

A. The mandate rule in Nebraska: confined remands are truly confined

• Trial courts must take remand language seriously. Where the Supreme Court limits reconsideration to the “existing record” with a specified addition, no other evidence may be received. Parties seeking to expand the record after remand must obtain express appellate authorization.
• Offers of proof, as made here with Preston’s affidavit, preserve issues but will not overcome a mandate that plainly precludes new evidence.

B. “Abiding scheme” evidence is admissible—but not decisive

• Walker I liberalized admissibility by clarifying that proof of a consistent testamentary plan is not confined to prior duly executed wills. However, Walker II confirms that the trier of fact may accord such evidence “little or no weight,” particularly where contemporaneous evidence about capacity or influence at execution points the other way.
• Practitioners should avoid over‑reliance on prior, informal plans to carry the burden on capacity or to rebut undue influence when the execution circumstances are fraught (terminal illness, heavy medication, beneficiary‑drafted instrument, etc.).

C. Capacity proof must be time‑specific and element‑focused

• General lucidity or decision‑making ability is not enough. Proponents should marshal evidence directed to the four capacity elements at the precise time of execution: understanding of the act, property, disposition, and natural objects of bounty.
• Absent a self‑proving affidavit (§ 30‑2329), plan to present witnesses who can speak to the decedent’s understanding of assets and dispositive scheme at execution. Attorney‑drafted wills with contemporaneous notes or capacity checklists can be invaluable.

D. Undue influence: circumstantial proof matters

• The Court reiterates that undue influence may be inferred from circumstances—the decedent’s vulnerability, the influencer’s involvement in drafting and execution, the isolation or exclusion of other natural heirs, prior threats, and the suspicious timing of execution near death.
• Beneficiary involvement in drafting, selection of witnesses, or execution logistics is a recurrent flash point; independent counsel and disinterested witnesses are best practices to limit later challenges.

E. Appellate posture: deference to probate fact‑finding

• “Error on the record” review gives substantial leeway to the county court’s credibility calls and weight assignments. On appeal, parties should focus on clear legal errors or absence of competent evidence, rather than disagreements over the fact finder’s weight determinations.

Complex Concepts Simplified

• Mandate and remand: A mandate is the appellate court’s instruction to the lower court about what to do next. A specific remand tightly confines what the trial court may do. Here, the county court was ordered to reconsider only the existing evidence plus exhibit 7—nothing else.
• Self‑proved will: A will accompanied by the statutory self‑proving affidavits (with notarization) that, if done properly, establishes prima facie proof of due execution and testamentary capacity. Without it, the proponent must prove capacity and other elements through testimony and documents.
• Prima facie proof: Evidence sufficient to support a finding unless rebutted. In probate, a self‑proved will provides prima facie proof of capacity, easing the proponent’s burden.
• Testamentary capacity: At the time of execution, the testator must understand that they are making a will, know their property, understand the planned distribution, and know who their natural beneficiaries are.
• Undue influence: Manipulation that destroys the testator’s free agency and substitutes another’s will. Proved by showing susceptibility, opportunity, disposition to influence, and a resulting will that reflects that influence. It is often shown indirectly through circumstances.
• “Constant and abiding scheme” evidence: Prior expressions or documents (even if not a duly executed will) showing a consistent plan for disposing of property can be admitted to rebut claims of incapacity or undue influence, but the fact finder decides how much weight to give this evidence.
• Error on the record: An appellate standard asking whether the judgment conforms to law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable. Appellate courts do not reweigh evidence.

Conclusion

In re Estate of Walker (320 Neb. 139) is significant for two reasons. First, it is a clear and forceful application of the mandate rule: when the Nebraska Supreme Court remands with specific instructions to reconsider the existing record plus a designated exhibit, the trial court cannot take new evidence. Second, it harmonizes Walker I’s liberal admissibility ruling on “abiding scheme” evidence with trial‑level discretion: prior plans may be competent and admissible, but they are not controlling. The dispositive inquiries remain the testator’s capacity and the presence or absence of undue influence at the precise moment of execution.

Practically, the decision underscores best practices for estate planning and probate litigation in Nebraska. To minimize later contests, use self‑proving affidavits, independent counsel, disinterested witnesses, and contemporaneous capacity documentation. In litigation, tailor proof to the legal elements—time‑specific capacity and concrete circumstances evidencing (or negating) undue influence—recognizing that appellate courts will defer to the probate court’s credibility determinations and weight assignments if supported by competent evidence.