The lower court was reversed; the law was changed; and Domina Law Group pc llo’s clients were told to expect an award of attorney’s fees for Domina’s Efforts. All this came about in a hotly contested trust and estate lawsuit decided by the Nebraska Supreme Court. At the center of the case, questions about probate court authority, elements of proof and standards of review, defined whether the outcome would be successful or not. Read the Court’s Opinion here.
The financial victory and reversal of the lower court were good results for Domina Law Group pc llo ’s clients, but the Supreme Court went even farther. Breaking with a tradition that stood for more than a century, the Court changed the law, adopting new de novo appellate review rules to govern future probate, trusts, conservatorship or guardianship appeals in Nebraska. The Court agreed with
David Domina’s arguments and rejected the former “error on the record” standard for review of probate cases presenting equity issues.
The Supreme Court assessed its past decisions before deciding a change in the law should be made. It announced this new standard for probate, conservatorship and trust cases. (The new rule is found at 281 Neb at 198):
[W]e recognized both the error on the record standard generally applied to probate cases and the de novo on the record standard which we had applied to trust administration appeals. In determining which of these standards to apply in that case, we focused on the specific issue presented, which was whether the doctrines of cy pres or deviation could be applied to use trust income in a manner which was different from the testators’ intent. We determined that because cy pres and deviation were equitable doctrines, our review was de novo on the record. We now conclude that this issue-specific approach is preferable and more consistent with our standard for appellate review under the Nebraska Probate Code than simply labeling all trust administration cases as equitable in nature and subject to a de novo on the record standard of review. Accordingly, we hold that absent an equity question, an appellate court reviews trust administration matters for error appearing on the record; but where an equity question is presented, appellate review of that issue is de novo on the record.
Domina’s Brief urged the Supreme Court to evaluate the legal standards used to review cases appealed from County Court in trust proceedings. Domina wrote
1. Neb Rev Stat § 30-1601 empowers the Court of Appeals to certify matters to the County Court for further proceedings, but not to vacate them.
Neb Rev Stat § 30-1601(5). This is the
scope of review.
2. The standard of review was addressed by the Nebraska Court of Appeals on June 29.
In re Trust Created by Socha, 18 Neb App 471, --- NW2d --- (2010).
Socha involved removal of trustees. This case does not. As
Socha noted, one line of cases indicates that "trust administration proceedings are considered equitable matters and are to be reviewed
de novo on the record."
In re Trust of Rosenberg, 273 Neb 59, 727 NW2d 430 (2007).
Socha continued, "trust administration proceedings are brought before the appellate court pursuant to the Nebraska Probate Code. … Appeals … pursuant to the … Probate Code are, in the absence of equity questions, reviewed for error appearing on the record. [Id.]"
3. Here, the question is whether the trustee should collect a debt from the beneficiary to be paid to the estate of the decedent and distributed among all the heirs upon collection. In this context, the scope of review is closely entangled with the history of the review process in the County Court. In re Estate of Sehi, 17 Neb App 697, 772 NW2d 103 (2009).
4.In re Estate of Fries, 279 Neb 887, 782 NW2d 596 (2010), held cases are reviewed for error on the record made in the County Court. "But when reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below." 279 Neb at 890, 891, 782 NW2d at 601.
In In re Trust Created by Isvik, 274 Neb 525, 538 741 NW2d 638, 648 (2007), the Court was required to determine whether there was clear and convincing evidence. The Court held its review was
5. This Court must review this record to determine whether there is evidence to establish the existence of a debt owed by Ernie Mastny to his parents, which in equity and good conscience must be repaid. Appellants contend the standard of review for the existence or absence of a debt isde novo. Since the trial court’s error is failure to recognize elements of proof of assumpsit (sometimes called money had & received or an account action), and the presence of evidence to sustain them, legal error, and not disputed equitable assessment of facts, is at issue.
“We recognize that the Supreme Court’s decision in the Mastny case establishes an important new rule of law governing appeals from probate, trust and guardianship cases,” Domina said. The new rule “harmonizes appellate practice between the county and district courts” and advances practice standards for Nebraskans who find themselves involved in legal disputes in cases involving estates and trust. “ Domina Law Group pc llo is “proud to have been able to provide service to our clients in a case where it was appropriate to argue for a change in the law, and to have the Court make the change.”
March 4, 2011