   Decisions of the Nebraska Court of Appeals
384	22 NEBRASKA APPELLATE REPORTS



See, also, Neb. Rev. Stat. § 43-106.01 (Reissue 2008) (when
child shall have been relinquished by written instrument, as
provided by Neb. Rev. Stat. §§ 43-104 and 43-106 (Reissue
2008), to DHHS or to licensed child placement agency and
agency has, in writing, accepted full responsibility for child,
“the person so relinquishing shall be relieved of all parental
duties toward and all responsibilities for such child and have
no rights over such child”). Accordingly, Jesse’s attempt at
revoking his relinquishment was invalid.
                         CONCLUSION
   For the reasons stated above, we affirm the juvenile court’s
finding that Jesse relinquished his parental rights to Zoey
through a validly executed relinquishment and that his attempt
at revocation of said relinquishment was invalid.
                                                   Affirmed.



       In re Estate of Johanna M. Morrell, deceased.
     David Thompson and K athleen Thompson, Copersonal
        R epresentatives of the Estate of Johanna M.
        Morrell, deceased, and Marcella Nau et al.,
             appellees, v. Lee L orenz, appellant.
                                    ___ N.W.2d ___

                     Filed September 16, 2014.      No. A-13-568.

  1.	 Summary Judgment. Summary judgment is proper when the pleadings and evi-
      dence admitted at the hearing disclose no genuine issue regarding any material
      fact or the ultimate inferences that may be drawn from those facts and that the
      moving party is entitled to judgment as a matter of law.
 2.	 Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
      appellate court views the evidence in the light most favorable to the party against
      whom the judgment is granted and gives such party the benefit of all favorable
      inferences deducible from the evidence.
 3.	 Summary Judgment: Proof. The party moving for summary judgment has the
      burden to show that no genuine issue of material fact exists and must produce
      sufficient evidence to demonstrate that the moving party is entitled to judgment
      as a matter of law.
 4.	 Summary Judgment: Evidence: Proof. After the movant for summary judg-
      ment makes a prima facie case by producing enough evidence to demonstrate
      that the movant is entitled to judgment if the evidence was uncontroverted at
             Decisions      of the   Nebraska Court of Appeals
	                            IN RE ESTATE OF MORRELL	385
	                               Cite as 22 Neb. App. 384

       trial, the burden to produce evidence showing the existence of a material issue
       of fact that prevents judgment as a matter of law shifts to the party opposing
       the motion.
 5.	   Summary Judgment. If a genuine issue of fact exists, summary judgment may
       not properly be entered.
 6.	   Wills: Undue Influence: Proof. To show undue influence, a will contestant must
       prove the following elements by a preponderance of the evidence: (1) The testa-
       tor 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.
 7.	   Wills: Undue Influence. Not every exercise of influence will invalidate a will.
 8.	   ____: ____. 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.
 9.	   Undue Influence: Proof. It is not necessary for a court in evaluating the evi-
       dence to separate each fact supported by the evidence and pigeonhole it under
       one or more of the four essential elements for showing undue influence. The trier
       of fact should view the entire evidence and decide whether the evidence as a
       whole proves each element of undue influence.
10.	   ____: ____. A party seeking to prove the exercise of undue influence is entitled
       to all reasonable inferences deducible from the circumstances proved.
11.	   ____: ____. One does not exert undue influence in a crowd. It is usually sur-
       rounded by all possible secrecy; it is usually difficult to prove by direct evidence;
       and it rests largely on inferences drawn from facts and circumstances surrounding
       the testator’s life, character, and mental condition.
12.	   Wills: Undue Influence: Presumptions: Proof. In determining whether undue
       influence existed, a court must consider whether the evidence shows that a
       person inclined to exert improper control over the testator had the opportunity
       to do so. Thus, a presumption of undue influence exists if the contestant’s evi-
       dence shows a confidential or fiduciary relationship, coupled with other suspi-
       cious circumstances.
13.	   ____: ____: ____: ____. Suspicious circumstances, when coupled with proof
       of a confidential or fiduciary relationship, can give rise to a presumption of
       undue influence. Those circumstances include (1) a vigorous campaign by a
       principal beneficiary’s family to maintain intimate relations with the testator,
       (2) a lack of advice to the testator from an independent attorney, (3) an elderly
       testator in weakened physical or mental condition, (4) lack of consideration
       for the bequest, (5) a disposition that is unnatural or unjust, (6) the benefi-
       ciary’s participation in procuring the will, and (7) domination of the testator by
       the beneficiary.

  Appeal from the County Court for Douglas County:
Lawrence E. Barrett, Judge. Affirmed.
  Gerald D. Johnson, of Johnson & Pekny, L.L.C, for
appellant.
   Decisions of the Nebraska Court of Appeals
386	22 NEBRASKA APPELLATE REPORTS



  Mallory N. Hughes and Stuart Dornan, of Dornan, Lustgarten
& Troia, P.C., L.L.O., for appellees David Thompson and
Kathleen Thompson.
  Steven J. Riekes and David P. Wilson, of Marks, Clare &
Richards, L.L.C., for appellees Marcella Nau, Frida Brohan,
and Edmund Roessler.
  Moore, Pirtle, and Riedmann, Judges.
  Pirtle, Judge.
                       INTRODUCTION
   Lee Lorenz appeals from two orders of the county court for
Douglas County. The first is an order finding that a will exe-
cuted by Johanna M. Morrell in March 2011 was of no force
and effect. The trial court found there was no genuine issue
of material fact in regard to whether the March 2011 will was
the result of Lorenz’ undue influence and granted partial sum-
mary judgment in favor of Marcella Nau, Frida Brohan, and
Edmund Roessler, Johanna’s siblings, and of David Thompson
and Kathleen Thompson, the copersonal representatives of
Johanna’s estate under a September 2010 will. The second
order from which Lorenz appeals is an entry of summary
judgment in favor of the siblings resulting in the dismissal
of Lorenz’ objection to probate of Johanna’s September 2010
will. For the reasons that follow, we affirm both orders of the
county court.
                       BACKGROUND
   Lorenz befriended an elderly couple—Johanna and her hus-
band, Wilson Morrell—in approximately 2007. Wilson was ill
at the time, and Lorenz drove Johanna back and forth to see
Wilson while he was in a hospital, skilled nursing care, and
later, hospice care. Lorenz also made changes to the couple’s
home to make it handicapped accessible for Wilson so he
could be released from skilled nursing care and live at home.
As Wilson’s health continued to decline, Lorenz helped the
Morrells with their financial affairs and in completing their
tax returns. Wilson died in November 2009. After Wilson
died, Lorenz continued to assist Johanna with various matters.
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	387
	                      Cite as 22 Neb. App. 384

Lorenz contends that he regarded Johanna as a second mother
and that she treated him like a son.
   Johanna and Wilson had one son, who predeceased them
both. Johanna had three living siblings, namely Nau, Brohan,
and Roessler. The three siblings all lived on the east coast and
had visited Johanna only twice in the 40 years prior to her
death, the last time being in September 2010. On September
13, 2010, Johanna executed a will leaving her property to her
siblings, the only family she had.
   Johanna began showing some signs of dementia in 2009.
On October 28, 2010, Lorenz filed a petition for appointment
of a guardian-conservator, requesting that he be appointed
guardian-conservator for Johanna. The petition was prepared
and submitted by Ralph E. Peppard, an attorney in Omaha.
On the same day, the Department of Health and Human
Services, Adult Protective Services (the Department), also
filed a petition for appointment of a guardian-conservator
based on its investigation regarding Johanna’s finances’ being
taken advantage of and her inability to protect herself. The
Department requested that Mark Malousek, an attorney, be
appointed as Johanna’s guardian-conservator. The Department
also filed an objection to the appointment of Lorenz as
Johanna’s guardian-conservator because the Department was
            ­
investigating Lorenz for the financial exploitation of Johanna.
Malousek was appointed temporary guardian-­         conservator
on October 28 and was appointed permanent guardian-­
conservator in April 2011.
   On March 11, 2011, Johanna executed another will, this time
leaving her entire estate to Lorenz. Johanna died in January
2012, at the age of 84.
   On January 25, 2012, the Thompsons, as copersonal repre-
sentatives of Johanna’s estate under her September 2010 will,
petitioned for the probate of the September 2010 will. Lorenz
filed an objection to probate of the will.
   On February 9, 2012, Lorenz petitioned for the probate of
Johanna’s will dated March 11, 2011. Johanna’s siblings and
the Thompsons objected to the probate of that will.
   On March 14, 2013, Johanna’s siblings filed a motion for
partial summary judgment asking the court to declare the
   Decisions of the Nebraska Court of Appeals
388	22 NEBRASKA APPELLATE REPORTS



March 2011 will invalid and of no effect. The motion alleged
that the will was invalid because at the time it was executed,
Johanna was under guardianship and lacked the capacity to
make the will as propounded, and because the will was the
product of undue and unlawful influence by Lorenz, who
manipulated Johanna into signing an instrument which left all
of her possessions to him upon her death.
   A hearing was held on the motion for partial summary judg-
ment. The evidence presented by the siblings and copersonal
representatives showed that in March 2009, Johanna’s physi-
cian, Dr. Heather Morgan, diagnosed Johanna with “mild cog-
nitive impairment,” and that by October 2009, her memory had
declined and testing showed that she most likely had “demen-
tia of the Alzheimer’s type.” In September 2010, Morgan
indicated that “[d]ue to [Johanna’s] functional and cognitive
impairments, she is unable to make informed decisions about
her general over all well being and health.” Morgan recom-
mended that a guardian-conservator be appointed on Johanna’s
behalf. Morgan opined that Johanna had lacked decisionmak-
ing capacity since October 2009.
   In October 2010, Johanna underwent a neuropsychologi-
cal evaluation done by Dr. Nadia Pare which confirmed a
diagnosis of “[d]ementia, possible Alzheimer’s disease etiol-
ogy, very mild severity.” Pare concluded that Johanna had the
capacity to make her own medical and financial decisions,
but found her to be a vulnerable adult, at risk of being finan-
cially exploited, “given . . . Lorenz’ emotional manipulation
described by [Johanna] and by her current [power of attor-
ney].” Pare testified at the guardianship proceedings that
Lorenz had reportedly told Johanna that he had all her money
and did not need her anymore. Johanna reportedly said that
she felt “stupid” because she believed that she and Lorenz
were in a romantic relationship.
   The siblings and copersonal representatives also presented
a report from the Department, dated December 1, 2010,
determining that Johanna was considered a vulnerable adult
because she had lacked capacity and been “unable to make
complex medical and financial decisions since October 23,
2009,” based on a letter by her physician, Morgan, dated
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	389
	                      Cite as 22 Neb. App. 384

September 29, 2010. The report also detailed the investigation
the Department performed based on three “intakes” it received
alleging that Lorenz was financially exploiting Johanna. The
report stated that in the month before Wilson’s death, Wilson
(while in hospice care) signed documents removing himself
as the beneficiary of a life insurance policy on Johanna and
making Lorenz the new beneficiary. Wilson also made Lorenz
the new beneficiary for one of his annuities. The Department’s
report also notes that in March 2010, about 4 months after
Wilson died, a total of $38,000 was taken out of Johanna’s
bank accounts.
   During a Department interview with Lorenz, he stated that
Johanna bought him a $41,000 boat in March 2010 in apprecia-
tion for all the things he had done for her. He also disclosed
that Johanna and Wilson gave him one of their cars and that
he is keeping their other car at his house and had himself
“added as” an owner of the car to lower the insurance rates.
The report also states that there were “multiple questionable
cash withdrawals from Johanna’s accounts and shifting of
monies from one account to another and to new accounts.” The
Department found the allegations of financial exploitation by
Lorenz against Johanna to be substantiated. The Department
sent Lorenz a letter on December 7, 2010, informing him of
its finding and notifying him that his name would be entered
in the “Adult Protective Services . . . Central Registry.” The
registry contains names of perpetrators of reported abuse or
neglect of vulnerable adults, which reports have been substan­
tiated through investigation.
   An affidavit of Malousek, the guardian-conservator of
Johanna, was entered into evidence. The affidavit states that
in December 2010, after Malousek’s appointment as tempo-
rary guardian-conservator, he received a telephone call from
an attorney who told him that Lorenz brought Johanna to his
office seeking his services in drafting a power of attorney.
The affidavit also states that Malousek had no knowledge of
any preparation or execution of any will by Johanna dated
March 11, 2011, which will was drafted by Peppard, and that
Malousek gave no consent or authority to participate in any
way in the drafting of any will during the entire time he was
   Decisions of the Nebraska Court of Appeals
390	22 NEBRASKA APPELLATE REPORTS



temporary or permanent guardian-conservator for Johanna.
Malousek also indicated that in his opinion as Johanna’s
guardian-conservator, her condition would have made her
highly susceptible to undue influence.
   Johanna told John C. Chatelain, the attorney who helped
prepare her September 2010 will, that she was concerned
that Lorenz had become involved in her financial affairs and
was concerned about his access to her assets. Johanna was
upset that Lorenz had been manipulating her accounts and
told Chatelain that she did not want any of her assets to go
to Lorenz. Chatelain stated in his affidavit that Lorenz had
acquired an interest in Johanna’s bank accounts, safe deposit
box, cars, and certificates of deposit and also had become a
beneficiary on certain life insurance policies.
   Mary Elizabeth Keitel, a longtime friend and neighbor of
Johanna’s, stated in an affidavit that Lorenz adopted a pat-
tern of trying to isolate Johanna from contact with her and her
husband. Johanna told her on multiple occasions that Lorenz
would get mad at Johanna if he found out she was socializ-
ing with them. Keitel also stated that Lorenz made it so that
Johanna became more and more dependent upon him. In late
August or early September 2010, Johanna told Keitel that
Lorenz did not love her anymore and that she wanted him out
of her life.
   The evidence presented by the siblings and copersonal rep-
resentatives also showed that Johanna had maintained a close
relationship with her siblings through telephone calls and the
mail, even though they came to visit her only twice in the pre-
ceding 40 years. Johanna’s mother died when Johanna was a
teenager, and her siblings then looked to Johanna as a mother
figure who took care of them.
   In opposition to the motion for partial summary judgment,
Lorenz presented an affidavit of Gail D. Bierman, a friend of
Johanna’s since 2007 or 2008. Bierman stated that Johanna told
her at some point that Johanna’s brother and sisters had come
for a visit and indicated to Johanna that they wanted her to
either come live with one of them or be placed in some type of
a “‘home.’” Bierman indicated Johanna was furious as a result.
Bierman also stated that during 2011, she never witnessed
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	391
	                      Cite as 22 Neb. App. 384

anyone coerce, bully, threaten, intimidate, or otherwise influ-
ence Johanna. She stated she was aware that two neighbors
were trying to keep her away from Lorenz.
   Lorenz also presented an affidavit of Peppard, the attorney
who prepared and helped Johanna execute the March 2011
will. Peppard stated that he first met with Johanna in October
2010 (the month following the September 2010 will). Lorenz
was present, and they discussed initiating a guardianship for
Johanna. Peppard stated that he represented Johanna in the
guardianship proceedings. He also stated that he represented
Lorenz in a meeting with the Department regarding an allega-
tion that Lorenz was taking advantage of Johanna as a vul-
nerable adult and also represented him in a meeting with the
Douglas County Attorney involving the same allegations.
   Lorenz also offered answers to interrogatories from each
of Johanna’s three siblings. Roessler, Johanna’s brother, con-
firmed in his interrogatory answers that Johanna and her sib-
lings were close and recounted several experiences they have
shared that made them close. All three siblings indicated that
they had regular communication with Johanna.
   Both parties asked the court to take judicial notice of the
transcript from the guardianship proceedings. The transcript
was marked as an exhibit and is in the record before us.
   On April 24, 2013, following the hearing, the court granted
partial summary judgment in favor of the siblings, finding that
there were no genuine issues of material fact as to whether the
March 2011 will was a result of Lorenz’ undue influence, and
declared the will to be of no force and effect.
   On May 2, 2013, the siblings and copersonal representa-
tives filed a motion for summary judgment asking the court
to declare Lorenz’ objection to probate of the September 2010
will to be without merit and to declare the will valid. Lorenz
filed an objection to the motion for summary judgment and
also filed a motion to alter or amend the court’s April 24 order
granting partial summary judgment.
   A summary judgment hearing was held on May 13, 2013,
and in support of the motion, the siblings offered a supple-
mental affidavit of Chatelain, affidavits of their own, and affi-
davits of the Thompsons. The evidence showed that Chatelain
   Decisions of the Nebraska Court of Appeals
392	22 NEBRASKA APPELLATE REPORTS



met Johanna’s siblings for the first time on September 27,
2010, and that he had no communication with them prior to
that date. Chatelain also stated that in drafting the September
2010 will, all matters were between him and Johanna and did
not involve Johanna’s siblings.
   Chatelain and the Thompsons all indicated that the
Thompsons did not participate in the preparation or execution
of Johanna’s September 2010 will and did not communicate
with Chatelain regarding any matter or provision that should
be contained in the will.
   The evidence also shows that the siblings came to visit
Johanna on September 26, 2010, after receiving a telephone
call from Kathleen Thompson, who indicated she was con-
cerned about Johanna’s well-being and safety based on Lorenz’
involvement in her life. The siblings had no knowledge of
the will executed on September 13, 2010, or of its making or
its contents, until meeting with Chatelain on September 27.
During their visit, the siblings also met with Johanna’s phy-
sician, who recommended that Johanna move to an assisted
living facility. Johanna made it clear to her siblings that she
wanted to continue living in her own home.
   Lorenz offered his own affidavit and answers to interrogato-
ries from the Thompsons. All of the exhibits entered into evi-
dence at the hearing on the motion for partial summary judg-
ment were entered into evidence at the May 13, 2013, hearing
as well.
   Following the hearing, the court entered an order on May
23, 2013, denying Lorenz’ motion to alter or amend the court’s
April 24 order and granting summary judgment in favor of
the siblings and copersonal representatives, finding that the
September 2010 will “was validly executed and allowed to
[be] probate[d].”

                 ASSIGNMENTS OF ERROR
   Lorenz assigns that the trial court erred in granting partial
summary judgment in favor of the siblings and copersonal
representatives in April 2013; in invalidating the March 2011
will; and in granting summary judgment in favor of the
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	393
	                      Cite as 22 Neb. App. 384

siblings and copersonal representatives in May 2013, finding
the September 2010 will to be Johanna’s final will.
                  STANDARD OF REVIEW
   [1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that
may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Klingelhoefer v.
Parker, Grossart, 20 Neb. App. 825, 834 N.W.2d 249 (2013).
In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment is granted and gives such party the benefit of all
favorable inferences deducible from the evidence. Id.
                           ANALYSIS
Partial Summary Judgment Regarding
March 2011 Will.
   Lorenz first challenges the partial summary judgment
entered in April 2013 in favor of the siblings and copersonal
representatives, in which judgment the court found that the
March 2011 will was of no force and effect. He argues that the
trial court erred in concluding that no genuine issue of material
fact existed as to whether he exercised undue influence over
Johanna, inducing her to execute the March 2011 will making
him the only beneficiary. Before proceeding with the analysis,
we set forth some general principles regarding summary judg-
ment and undue influence.
   [3-5] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Durre v.
Wilkinson Development, 285 Neb. 880, 830 N.W.2d 72 (2013).
After the movant for summary judgment makes a prima facie
case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontro-
verted at trial, the burden to produce evidence showing the
existence of a material issue of fact that prevents judgment
as a matter of law shifts to the party opposing the motion. Id.
   Decisions of the Nebraska Court of Appeals
394	22 NEBRASKA APPELLATE REPORTS



If a genuine issue of fact exists, summary judgment may not
properly be entered. Id.
   [6-8] To show undue influence, a will contestant must prove
the following elements by a preponderance of the evidence: (1)
The testator was subject to undue influence; (2) there was an
opportunity to exercise such influence; (3) there was a disposi-
tion to exercise such influence; and (4) the result was clearly
the effect of such influence. In re Estate of Hedke, 278 Neb.
727, 775 N.W.2d 13 (2009). Yet not every exercise of influence
will invalidate a will. Id. 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. Id.
   [9,10] But it is not necessary for a court in evaluating the
evidence to separate each fact supported by the evidence and
pigeonhole it under one or more of the above four essential
elements. The trier of fact should view the entire evidence and
decide whether the evidence as a whole proves each element
of undue influence. Id. And a party seeking to prove the exer-
cise of undue influence is entitled to all reasonable inferences
deducible from the circumstances proved. Id.
   [11,12] One does not exert undue influence in a crowd.
It is usually surrounded by all possible secrecy; it is usually
difficult to prove by direct evidence; and it rests largely on
inferences drawn from facts and circumstances surrounding
the testator’s life, character, and mental condition. Id. In deter-
mining whether undue influence existed, a court must also
consider whether the evidence shows that a person inclined to
exert improper control over the testator had the opportunity to
do so. Id. Thus, the Nebraska Supreme Court has recognized
a presumption of undue influence if the contestant’s evidence
shows a confidential or fiduciary relationship, coupled with
other suspicious circumstances. Id.
   [13] The Nebraska Supreme Court has previously summa-
rized suspicious circumstances that, when coupled with proof
of a confidential or fiduciary relationship, can give rise to a
presumption of undue influence. Those circumstances include
(1) a vigorous campaign by a principal beneficiary’s family
to maintain intimate relations with the testator, (2) a lack of
advice to the testator from an independent attorney, (3) an
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	395
	                      Cite as 22 Neb. App. 384

elderly testator in weakened physical or mental condition, (4)
lack of consideration for the bequest, (5) a disposition that
is unnatural or unjust, (6) the beneficiary’s participation in
procuring the will, and (7) domination of the testator by the
beneficiary. Id.
   Having set forth the law applicable to this case, we now turn
to the evidence of undue influence in the present case to deter-
mine whether a genuine issue of material fact exists.
   We first note the relationship between Johanna and Lorenz.
Lorenz had helped out Johanna and Wilson in various ways
over multiple years and had established a relationship with
Johanna. Lorenz claims to have been like a son to Johanna.
However, there was also evidence that Johanna believed she
and Lorenz were in a romantic relationship. Either way, Lorenz
had more than sufficient opportunity to exercise his influ-
ence over Johanna concerning her assets and estate plan-
ning. He prepared her taxes and acted at times as a financial
advisor. Further, Lorenz held powers of attorney for Johanna
and Wilson.
   Keitel, Johanna’s longtime friend and neighbor, indicated
that Lorenz tried to isolate Johanna from contact with Keitel
and her husband and indicated that Lorenz would get mad if
he found out Johanna was socializing with Keitel and her hus-
band. Keitel also stated that Lorenz made it so that Johanna
became more and more dependent upon him.
   The evidence also established that Johanna was in a weak-
ened mental condition and subject to undue influence by
Lorenz at the time the March 2011 will was executed. Johanna
began showing signs of dementia in 2009. Malousek, Johanna’s
temporary guardian in March 2011, stated that her condition
would have made her highly susceptible to undue influence.
In October 2010, Pare, in her neurophysiological evaluation
of Johanna, came to the same conclusion. She concluded that
Johanna had the capacity to make her own medical and finan-
cial decisions, but found her to be a vulnerable adult at risk
of being financially exploited by Lorenz. Further, following
an investigation by the Department, it concluded that the alle-
gations of financial exploitation by Lorenz against Johanna
were substantiated and that Johanna was being abused as a
   Decisions of the Nebraska Court of Appeals
396	22 NEBRASKA APPELLATE REPORTS



vulnerable adult by Lorenz. The Department notified Lorenz
of its findings and filed a guardianship-conservatorship peti-
tion on Johanna’s behalf to protect her and her assets. Lorenz
filed a similar petition asking that he be named Johanna’s
guardian-conservator.
   The evidence also shows that Lorenz had acquired an inter-
est in Johanna’s bank accounts, safe deposit box, and certifi-
cates of deposit and had become a beneficiary on certain life
insurance policies. Johanna also gave him $41,000 to buy a
boat, and he had acquired the Morrells’ cars. Lorenz did not
challenge any of this evidence. These actions indicate that he
was predisposed to having himself named the beneficiary of
her entire estate.
   Johanna indicated to Chatelain, the attorney who prepared
and executed the September 2010 will, that she was concerned
that Lorenz had become involved in her financial affairs and
was concerned about his access to her assets. Johanna was
upset that Lorenz had been manipulating her accounts and
told Chatelain that she did not want any of her assets to go
to Lorenz.
   Further, the March 2011 will was prepared and executed
without the knowledge of the duly appointed and acting
guardian-conservator. Malousek stated in his affidavit that
he had no knowledge of any preparation or execution of the
March 2011 will and that he gave no consent or authority to
participate in any way in the drafting of any will during the
time he was temporary or permanent guardian-conservator
for Johanna.
   The siblings and copersonal representatives’ evidence estab-
lished that the March 2011 will was the product of Lorenz’
undue influence as a matter of law. The burden shifted to
Lorenz to produce evidence showing the existence of a mate-
rial issue of fact that prevents judgment as a matter of law.
See Durre v. Wilkinson Development, 285 Neb. 880, 830
N.W.2d 72 (2013). We conclude that Lorenz did not satisfy
his burden.
   Lorenz offered into evidence an affidavit of Bierman, a
friend of Johanna’s, who stated that during 2011, she never
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	397
	                      Cite as 22 Neb. App. 384

witnessed anyone coerce, bully, threaten, intimidate, or other-
wise influence Johanna.
   Lorenz also presented an affidavit of attorney Peppard,
which states that Peppard first met Johanna in October 2010,
when Lorenz brought Johanna to Peppard’s office and the
three of them discussed Lorenz’ becoming Johanna’s guardian-
conservator. Lorenz subsequently filed a petition for appoint-
ment of guardian-conservator that was prepared and submitted
by Peppard. Peppard’s affidavit also states that he represented
Lorenz in regard to the allegations being investigated by the
Department. Peppard was the same attorney who prepared
and helped Johanna execute the March 2011 will. Therefore,
the admission of Peppard’s affidavit shows that Peppard had
represented both Johanna and Lorenz, indicating that Johanna
did not have advice from an independent attorney when she
executed the March 2011 will. As the trial court found, Lorenz,
through his attorney Peppard, sought to influence Johanna into
changing her will.
   Lorenz’ evidence also establishes that despite Peppard’s
knowing about the Department’s investigation into Lorenz’
financial exploitation of Johanna and despite a temporary
guardian-conservator’s having been appointed, Peppard impru-
dently drafted and executed the March 2011 will for Johanna,
giving all of her estate to the very person whom the Department
was trying to protect her from. We find this conduct by a
Nebraska lawyer to be deeply troubling.
   The answers to interrogatories from each of Johanna’s
siblings simply showed that Johanna and her siblings all
had a good relationship and stayed in regular contact with
each other.
   In summary, the evidence showed that Lorenz had the
opportunity to exercise influence over Johanna and that she
was susceptible to such undue influence at the time the March
2011 will was executed. Lorenz tried to isolate Johanna from
her friends and had manipulated her assets such that he had
acquired an interest in many of them. The Department con-
cluded that Johanna was a vulnerable adult and that Lorenz
was financially exploiting her. Further, the March 2011 will
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398	22 NEBRASKA APPELLATE REPORTS



was not drafted by independent counsel, but, rather, by the
same attorney who represented Lorenz in regard to the alle-
gations investigated by the Department. The March 2011
will was also executed without the knowledge of Johanna’s
court-appointed guardian-conservator. We find this evidence
sufficient to establish that Lorenz exercised undue influence
over Johanna, inducing her to execute the March 2011 will
making him the sole beneficiary. The only evidence offered
by Lorenz to counter this evidence was the Bierman affidavit
stating she had never witnessed anyone exert undue influence
over Johanna and the Peppard affidavit previously discussed.
As explained above, undue influence is not exerted in public;
therefore, we do not consider the Bierman affidavit to raise
a genuine issue of material fact as to whether Lorenz exer-
cised undue influence over Johanna in executing the March
2011 will. Nor do we consider Peppard’s affidavit to raise a
genuine issue of material fact as to this question, given the
circumstances of his involvement with Lorenz. Therefore,
while Lorenz may have presented evidence that created issues
of fact, we find he failed to present evidence showing the
existence of a genuine issue of material fact to prevent judg-
ment as a matter of law. We conclude that the trial court did
not err in sustaining the siblings’ and copersonal representa-
tives’ motion for partial summary judgment, thereby invalidat-
ing the March 2011 will. Lorenz’ first assignment of error is
without merit.
Summary Judgment Regarding
September 2010 Will.
   Lorenz next assigns that the trial court erred in granting
summary judgment in favor of the siblings and copersonal
representatives, finding there was no genuine issue of mate-
rial fact as to whether the September 2010 will was val-
idly executed.
   Lorenz’ objection to the probate of the September 2010 will
was based on two distinct grounds. The first ground alleged
that if the court invalidated or disallowed the probate of the
March 2011 will based on Johanna’s lack of testamentary
capacity to validly execute the will, then the court should
         Decisions   of the  Nebraska Court of Appeals
	                    IN RE ESTATE OF MORRELL	399
	                       Cite as 22 Neb. App. 384

invalidate or disallow the probate of the September 2010 will
based on the same reasoning. Because the court’s order grant-
ing partial summary judgment invalidates the March 2011 will
on the basis of undue influence and not on the basis of lack
of capacity, which invalidation we affirm, Lorenz’ objection
to probate of the September 2010 will on the basis of lack of
capacity is not at issue.
   Lorenz’ second ground for objecting to the probate of the
September 2010 will was that it resulted from “undue influ-
ence, duress and/or mistake on the part of [Johanna].” Lorenz
argues that the siblings’ unexpected visit in September 2010
creates a genuine issue of material fact as to whether the
September 2010 will was the result of undue influence or
duress by the siblings. Lorenz relies on the affidavits of
Peppard and Bierman as evidence of the siblings’ undue influ-
ence or duress.
   Peppard’s affidavit states Johanna told him at a meeting
in October 2010, with Lorenz present, that her siblings came
to visit her in September 2010 and that they had not come to
visit her in the last 30 years. It stated that Johanna informed
Peppard that her siblings “had taken her to an attorney, told
her what to say, told her to sign the documents provided by
the attorney and if she failed to follow their instructions they
would remove her from her home and put her into a nurs-
ing home.”
   We note that Peppard’s affidavit does not state that Johanna
told him she was forced to sign a will, just “documents.” The
affidavit stated that when Peppard asked Johanna what she
signed, she stated she did not know.
   Bierman’s affidavit states that Johanna told her that Johanna’s
siblings had come to visit her and indicated that they wanted
her to go back to either live with them or be placed in some
type of “‘home.’” The affidavit further states that Johanna was
furious and told her siblings to get out of her house.
   Despite Peppard’s and Bierman’s affidavits, there is uncon-
tradicted evidence that the September 2010 will was executed
before the siblings came to visit Johanna. The will was exe-
cuted on September 13, and the siblings arrived in Nebraska
on September 26. The evidence shows that the siblings came
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400	22 NEBRASKA APPELLATE REPORTS



to visit Johanna after receiving a call from Kathleen Thompson
indicating she was concerned about Johanna’s well-being and
safety. The siblings met Chatelain for the first time in his
office on September 27 and, prior to that time, had no commu-
nication with him. The siblings had no knowledge of the will
executed on September 13, or of its making or its contents,
until meeting with Chatelain on September 27.
   During the siblings’ visit, there was some discussion about
where Johanna should live. During the visit, the siblings met
with Johanna’s physician, who recommended that Johanna
move to an assisted living facility. However, Johanna made it
clear to her siblings that she wanted to continue living in her
own home.
   Further, although the siblings all lived on the east coast and
visited Johanna only twice in the 40 years before her death,
the evidence shows that she maintained a consistent relation-
ship with them through telephone calls and through the mail.
There was also evidence that Johanna had told both her neigh-
bor Keitel and Chatelain that she wanted to give her property
to her family.
   We conclude that the siblings and copersonal representa-
tives presented sufficient evidence to show that there was no
genuine issue of material fact as to whether the September
2010 will was validly executed. The evidence showed that
the September 2010 will was executed about 2 weeks before
the siblings came to visit Johanna and that they came after
receiving a call from Kathleen Thompson, who was concerned
about Johanna. The attorney who assisted Johanna with the
September 2010 will had no contact or communication with the
siblings prior to their visit, and the siblings had no knowledge
of the will or its contents prior to their visit. The evidence also
showed that Johanna had a good relationship with her siblings,
despite the lack of visits between them.
   Although Lorenz offered affidavits from Peppard and
Bierman which raised issues of fact regarding Johanna’s future
place of residence and unidentified legal documents, he did
not meet his burden of showing a genuine issue of material
fact as to the validity of the September 2010 will. Therefore,
        Decisions   of the  Nebraska Court of Appeals
	                   IN RE ESTATE OF MORRELL	401
	                      Cite as 22 Neb. App. 384

Lorenz’ assignment of error in regard to the September 2010
will is without merit.
                        CONCLUSION
   We conclude that the trial court did not err in granting par-
tial summary judgment in favor of the siblings and copersonal
representatives in April 2013; in invalidating the March 2011
will; and in granting summary judgment in favor of the sib-
lings and copersonal representatives in May 2013, finding the
September 2010 will to be Johanna’s final will. Accordingly,
we affirm the orders of the Douglas County Court entered on
April 24 and May 23, 2013.
                                                     Affirmed.
