Will Contests in Kansas
| Jurisdiction | Kansas,United States |
| Citation | Vol. 64 No. 09 Pg. 22 |
| Pages | 22 |
| Publication year | 1995 |
64 J. Kan. Bar Assn. September, 22 (1995). WILL CONTESTS IN KANSAS
September, 1995
Jeffery L. Carmichael [FNaa1]
Copyright (c) 1995 by the Kansas Bar Association; Dennis M. Feeney and Jeffery L. Carmichael
And it's one, two, three, What are we fightin' for?
Don't ask me, I don't give a damn,
My next stop is [Heavenland],
And it's five, six, seven, Open up the Pearly Gates,
Well, there ain't no time to wonder why,
Whoopee! We're all gonna die!
Modified lyrics from "Fixin' To Die Rag," by Country Joe and the Fish (1969). As the lyrics from this Woodstock-era song suggest, death (along with taxes) is one of the few inevitable certainties all human beings experience. As lawyers, many of us are frequently called upon to advise clients on the various legal consequences of one's death. When a client or relative of a client passes away, we may be retained to administer an estate or probate a will. More infrequently, we are consulted by, or retained to represent, disinherited or dissatisfied relatives regarding a potential will contest challenging the validity of a will or codicil executed by the deceased.
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This article will focus primarily on will contest litigation based upon the defenses of undue influence and lack of testamentary capacity. Also included is a discussion of ancillary procedural issues, as well as related defenses and causes of actions, that arise in or from will contests. Specifically, we will address: (1) the procedural aspects of will contests (e.g., when and how a will is probated; how will contest defenses are raised; and how such contests are litigated through discovery and trial); (2) litigation of defenses based on failure to follow testamentary formalities; (3) litigation of the defense of undue influence (under the common law and K.S.A. 59-605); (4) litigation of the defense of lack of testamentary capacity; and (5) the ancillary tort claim of tortious interference with inheritance. [FN1]
I. PROCEDURAL ASPECTS OF WILL CONTESTS
The probate of an estate involving a will is usually commenced by the filing of the will and a petition for admission of the will to probate and for appointment of the executor. [FN2] Normally, for a Kansas decedent, that petition must be filed within six months of the date of death, unless the will is withheld or concealed from probate as to "innocent beneficiaries." [FN3] This six-month statute of limitations also applies to an oral or nuncupative will. [FN4]
A will contest occurs when a challenge to the validity of the will is raised by an heir with standing to do so. [FN5] Such a challenge must be made before the hearing to admit the challenged will to probate is held, [FN6] and is usually raised either in the form of the filing of "written defenses" to the petition [FN7] or by the filing of a petition to probate an earlier or later executed will or codicil. [FN8] Defenses typically raised in will contests by such filings include failure to follow testamentary formalities in the execution of the will, lack of testamentary capacity, and undue influence (both common law and pursuant to K.S.A. 59-605).
The litigation of a will contest is similar to other civil litigation under Chapter 60 of the Kansas Code of Civil Procedure, with a few notable exceptions. For example, all of the discovery tools and procedures of K.S.A. 60-226 through K.S.A. 60-237 apply. [FN9] Similarly, the rules of evidence of the Kansas Code of Civil Procedure, K.S.A. 60-401 et. seq., apply to all probate hearings and trials. [FN10] Unlike the situation in many other states, however, trial of a will contest in Kansas is to the court with no right to a jury trial. [FN11] Moreover, the prevailing party in a will contest (whether proponent or contestant), as well as the executor, may under certain circumstances recover both court costs and attorneys' fees from the estate of the decedent. [FN12]
Last, although perhaps more of a substantive than procedural issue, probate counsel must carefully analyze the effect that a successful challenge to the validity of a will may have on the ultimate disposition of the decedent's estate. If the will is invalidated based on the decedent's lack of testamentary capacity, the attempted will is void in its entirety. [FN13] On the other hand, if a successful challenge to a will is mounted on the basis of undue influence, the will may yet be valid in part. Kansas recognizes the general rule that parts of a will may be valid regardless of the fact that portions are invalid because of undue influence if the parts affected are separable so that the will remains intelligible after the invalid parts are removed. [FN14] If the partial invalidity doctrine does not apply, and the entire will is void due to undue influence, the question may arise whether a prior will may be "revived." [FN15]
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II. DEFENSES RELATING TO FAILURE TO FOLLOW TESTAMENTARY FORMALITIES AND LOST WILLS
A. Testamentary Formalities
There are a variety of written defenses that can be raised by a will contestant based upon the failure to follow statutorily-mandated testamentary formalities. These testamentary formalities are generally strictly construed by the courts, primarily because the execution and witnessing of a will is considered to be a matter of great importance and solemnity, and disputes relating to wills do not arise until the testator is deceased and can no longer express his or her true wishes. [FN16]
K.S.A. 59-606, which provides that a will must be in writing, signed at the end thereof by the maker or someone else at the maker's direction, and in the presence of two or more competent witnesses who saw or heard testator acknowledge same, has spawned much litigation and sometimes seemingly inconsistent results. [FN17] For example, our courts have held that a signature in the body of a will is insufficient compliance with the statute's requirement that the testator sign at the end of the will. [FN18] A will has also been invalidated for failure of the proponent to present evidence that the attesting witnesses either saw the testator sign it or heard him acknowledge it. [FN19]
A valid written defense to a will may also be raised by a collateral attack upon the competency of an attesting witness, although if the witness is competent at the time of the will's execution, subsequent incompetence does not preclude admission of the will to probate. [FN20] Last, a devise or bequest to a witness to a will is void, unless there are two other competent subscribing witnesses who are not beneficiaries under the will. [FN21] The Kansas courts, however, have tended to construe this limitation rather narrowly, holding, for example: (1) that a husband was a competent attesting witness to a will in which a substantial devise and bequest was made to his wife; [FN22] and (2) that an executor who also witnessed the will but had no pecuniary interest in the distribution of the estate's assets was not a testamentary beneficiary under the will so as to render it ineligible for probate under K.S.A. 59-604. [FN23]
B. Lost Wills
A will contest can also arise if the original will executed by the testator is lost. Where the facts disclose that a properly executed will was in the testator's possession immediately prior to his death and cannot be found after his death, a common law rebuttable presumption arises that he revoked the will or destroyed it with the intention of revoking it. [FN24]
The Kansas Court of Appeals addressed this defense recently in In re Estate of Kasper. [FN25] After reiterating the general rule stated above, the court held that if the presumption of revocation was rebutted by the presentation of competent evidence that decedent did not intend to revoke the will, a copy of the last will could be admitted to probate as a lost will if the provisions of K.S.A. 59-2228 are satisfied. [FN26] Of greater import was the court's enunciation and affirmance of the type of evidence necessary to rebut the presumption: (1) testimony of the proponents of the lost will that the testatrix had told them she changed her will to exclude contestants, had expressed no regrets about changing her will, and never indicated she was going to revoke her last will nor asked proponents to retrieve or destroy it; (2) testimony of proponents regarding a family dispute that had led up to the change in the will; (3) their testimony that the testatrix had been upset by visits from the contestants; (4) testimony of proponents
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that the testatrix had a habit of misplacing important papers; and (5) last, and most important, their testimony regarding statements of the testatrix that the contestants would get nothing under her will, and proponents' nieces would be provided for in the will. [FN27] As the most recent exposition of our appellate courts on lost will cases, the Kasper decision deserves close scrutiny by any counsel litigating this issue in probate proceedings.
III. GENERAL RULES APPLICABLE TO WILL CONTESTS ALLEGING UNDUE INFLUENCE AND LACK OF CAPACITY
A. Establishment of Prima Facie Case and Effect Thereof
When a will is contested, the probate code requires the proponent to prove initially capacity of the testator and due execution of the will through the live, deposition, or affidavit testimony of at least two subscribing witnesses. [FN28] This is known as a prima facie case. [FN29] Establishing "due execution of the will" is merely presenting evidence of compliance with the testamentary formalities required by K.S.A. 59-606, discussed above. Regarding the testator's capacity, the proponents of a contested will have the initial burden of establishing that the testator was "of sound mind" and possessed the "rights of majority." [FN30]
Both of these elements of the prima...
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