Wills and the Six-month Deadline

• Jurisdiction: Kansas,United States
• Citation: Vol. 85 No. 4 Pg. 32
• Pages: 32
• Publication year: 2016

Wills and the Six-Month Deadline No. 85 J. Kan. Bar Assn 4, 32 (2016) Kansas Bar Journal April, 2016

By Michael Jilka

I. Introduction

Wills are often kept in strange places. Although they should probably be kept in safety deposit boxes, they occasionally turn up in odd places like shoe boxes. Further, the lawyer who drafted the will may be deceased, retired, or otherwise not practicing law, and her files not readily accessible. And if a will is located, and depending on when it is located, its admission to probate may produce a starkly different outcome than its alternatives, the law of intestate succession or a previously executed will.

Kansas law provides that a will must be filed for probate within six months of a testator's death for property to pass under the will. ^[1]The statute functions as a statute of limitations prohibiting the admission of wills offered for probate after the six-month deadline. But an exception exists to the six-month deadline in cases in which a person knowingly withholds the will from the probate court.^[2] The scope of this savings clause has produced conflicting reported appellate decisions in the past decade. The Kansas Supreme court recently granted review to resolve this conflict. The court reversed the court of appeals' ruling and held that the K.S.A. 59-618 exception applies only in cases in which a will is knowingly withheld from the district court by a person with knowledge of such will and access to it.^[3]The court's holding rests on a rule of strict statutory construction and rejects the public policy rationale espoused by the court of appeals. This article explores the court's decision and its impact on probate litigation.

II. Statutory Background

K.S.A. 59-617 and 59-618 work in tandem. The former statute sets out a six-month deadline for admission of a will to probate. The latter statute acts as a savings provision and contains the probate code's only exception to the general rule found in 59-617. The exception allows a will to be filed if it is knowingly withheld from probate:

Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it...^[4]

III. The Court of Appeals Grapples With K.S.A. 59-618

Does K.S.A. 59-618 provide any protection to innocent beneficiaries in situations in which a will turns up just days after the six-month anniversary of the testator's death? That was the question presented in the court of appeals' opinion in In re Estate of Tracy.^[5] In Tracy, the testator died on August 21, 2003. Her sister and niece filed a petition for the appointment of an administrator on October 14, 2003. A month later, the district court found that Tracy had died intestate and appointed her sister and niece as co-administrators.

On February 24, 2004, the original copy of Tracy's will was discovered in the files of her deceased scrivener. The co-administrators promptly filed an amended petition to probate Tracy's will. The will left the balance of Tracy's estate to Shore, as trustee for the First Christian Church of Wellington. The guardian ad litem appointed by the district court to represent other heirs objected.

The district court refused to admit the will to probate, reasoning that the six-month deadline in K.S.A. 59-617 acted to bar the newly-discovered will. The district court also rejected the applicability of K.S.A. 59-618, ruling that the wrongdoing of someone who has possession and knowingly withholds a will from probate was a condition precedent before an innocent beneficiary could submit a will to probate beyond the six-month time limit.^[6]

Sallie Shore, the executrix, appealed the district court's decision, arguing that its strict interpretation of the statute "conflicts with the goals of equity and good policy." The court of appeals agreed with Shore. The court pointed to the Kansas Supreme Court's statement that the intent underlying the Kansas Probate Code is to probate legally executed wills.^[7] Further, the court emphasized that legislative amendments reflect an intent that K.S.A. 59-618 not only impose a penalty on those who wrongfully withhold a will, but also provide an exception for innocent beneficiaries, allowing them to submit a will to probate beyond the six-month time limit if they do so within 90 days after having knowledge of the existence of the will.^[8]

The court held that the district court's interpretation of K.S.A. 59-618 contravened the underlying intent of the probate code.^[9] The court noted the harsh result the district court's interpretation of K.S.A. 59-618 would produce under the facts of this case, in which the will was found with the deceased scrivener's papers within a...