Cresto v. Cresto, 302 Kan. 820

Background

Decedent Francis Cresto executed long-standing estate plans (1997 trust, amendments in 2000 and 2004) that included his three children and stepchildren; in 2008 he executed new will and trust leaving everything outright to his wife Kathleen and her children, effectively disinheriting his natural children.
Indiana attorney Patricia Hackett drafted the 2008 documents for Decedent; she had a close personal relationship with Kathleen’s daughter Rita (a 2008 beneficiary) and a romantic relationship with Rita that was not disclosed to local counsel.
Retired federal judge James K. Logan served as local Kansas counsel and conducted a ~30-minute meeting at execution; parties stipulated Decedent had testamentary capacity and documents were formally executed.
After Decedent’s death, his children Steven and Terese challenged the 2008 will and trust for common-law undue influence; the district court found suspicious circumstances, presumed undue influence, and invalidated the 2008 documents, reinstating the 2004 trust.
The Court of Appeals reversed, crediting Logan’s testimony and finding insufficient suspicious circumstances; the Kansas Supreme Court reversed the Court of Appeals and affirmed the district court’s undue-influence ruling but upheld the denial of attorney fees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether suspicious circumstances existed to create a presumption of undue influence	Plaintiffs: abrupt, complete disinheritance of children, Hackett’s involvement and undisclosed ties to beneficiaries, removal of independent safeguards, and other contextual facts were suspicious	Kathleen: Decedent initiated changes, was competent, used independent local counsel (Logan), and it’s not inherently suspicious to leave property outright to a spouse	Court: Substantial competent evidence supported the district court’s findings of suspicious circumstances; presumption arose and burden shifted to Kathleen
Whether Hackett’s role and relationships could support undue-influence theory	Plaintiffs: Hackett’s close emotional/romantic ties to family and discounted fees suggested non-arm’s-length representation and benefit to her circle	Kathleen: Hackett represented Decedent and disclosed no conflict; any influence isn’t attributable to Kathleen directly	Court: District court permissibly considered Hackett’s agency and relationships; undue influence may be exerted by third parties and that evidence supported the presumption
Whether Logan provided independent legal advice sufficient to rebut the presumption	Kathleen: Logan independently counseled Decedent, discussed major changes, and testified Decedent was competent and acting of his own will	Plaintiffs: Logan’s brief meeting, presence of Kathleen, and lack of disclosure about Hackett undermined the independence of advice	Court: Trial judge’s credibility findings rejecting Logan’s thoroughness are entitled to deference; Kathleen failed to rebut the presumption by clear and convincing evidence
Whether plaintiffs were entitled to attorney fees from the trust under K.S.A. 58a-1004 (and other fee theories raised on appeal)	Plaintiffs: Successful contest warrants fees from the trust; alternatively seek fees under K.S.A. 59-1504 or common-fund doctrine	Kathleen: District court discretion to deny fees; no statutory or equitable basis recognized to require fees from the trust here	Held: Denial of fees was within discretion; appellate court will not entertain new statutory theories first raised on appeal; common-fund exception inapplicable

Key Cases Cited

In re Estate of Bennett, 19 Kan. App. 2d 154, 865 P.2d 1062 (Kan. Ct. App. 1993) (two-prong test for suspicious circumstances/fiduciary relation in undue-influence analysis)
In re Estate of Kern, 239 Kan. 8, 716 P.2d 528 (Kan. 1986) (definition of undue influence)
In re Estate of Ziegelmeier, 224 Kan. 617, 585 P.2d 974 (Kan. 1978) (undue influence standard citations)
Ginter v. Ginter, 79 Kan. 721, 101 P. 634 (Kan. 1909) (presumption of validity for properly executed wills and discussion of undue influence evidence)
In re Estate of Farr, 274 Kan. 51, 49 P.3d 415 (Kan. 2002) (suspicious-circumstances doctrine and burden shifting)
In re Estate of Brown, 230 Kan. 726, 640 P.2d 1250 (Kan. 1982) (clarification that a confidential relation alone does not shift the burden without suspicious circumstances)
Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719 (Kan. 1976) (standard on appellate review of negative findings and deference to trial court credibility determinations)