A-19-0755, In re Trust of Cook
County Court for Douglas County, Judge Thomas K. Harmon
Attorney for Appellant: Tiernan T. Siems (Erickson & Sederstrom)
Appellants: Lloyd and Betty Russo
Attorney for Appellee: Darren R. Carlson & Terry A. White (Carlson & Burnett).
Appellee: Union Bank & Trust Company
Civil: Probate
Facts:
This matter came before the county court on Union Bank’s Petition for Instruction in Trust Administration, requesting direction as to how to distribute the proceeds, held in trust, from the sale of an Arizona condominium previously owned by, Margie Cook, who had since died. The Russos filed a motion to intervene, claiming that the proceeds should be distributed to them pursuant to a 2015 beneficiary deed naming the Russos beneficiaries of Cook’s Arizona condo. The Russos and Cook had a longtime friendship. Lloyd also previously served as Cook’s attorney-in-fact and health care agent, and both Russos were named successor trustees of Cook’s trust.
The Russos claim that any testamentary documents executed by Cook after October 2016, including a financial power of attorney in favor of Union Bank and handwritten amendments to the trust expressing a desire that the condo no longer be left to the Russos in July 2017, are invalid due to Cook’s incapacity at the time. Union Bank, acting as Cook’s financial power of attorney and trustee, sold the Arizona condo shortly before her death in November 2017. The proceeds were ultimately distributed to the trust’s residuary beneficiary, the University of Nebraska Foundation.
Action Taken by Trial Court:
The county court found that the Russos lacked standing to assert a claim for the distribution of trust proceeds from the “Margie E. Cook Revocable Trust,” ordered Union Bank to distribute the sale proceeds from the Arizona condominium to the University of Nebraska Foundation, and denied the Russos’ motion for disgorgement of attorney fees. The county court also found the issue of Margie Cook’s capacity was not relevant to its conclusions.
Assignments of Error on Appeal:
The Russos argue the county court erred in (1) not treating the Russos’ claim as one involving a valid beneficiary deed and an improper use of a power of attorney; (2) finding that the Russos lacked standing to assert their claims; (3) finding that Margie Cook was mentally competent at times relevant to the case; and (4) failing to consider the issue of undue influence.