In re Estate of Rickabaugh, 111389

Background

Decedent Beuford W. Rickabaugh executed a 1992 will (with codicils in 1997 and 2001) leaving his estate in trust for granddaughters Angella and Lisa if his wife did not survive him; he died April 4, 2012.
Geraldine Vann filed a petition to probate the will April 16, 2012; the court appointed Vann special administrator and placed a May 14, 2012 hearing on the court calendar; notices were published.
May 14, 2012 hearing admitted the will to probate; Everett (son) moved to set aside the probate order, alleging procedural defects (no written order setting hearing) and later raised substantive challenges (revocation, oral contract, and extreme allegations).
June 6, 2013 district court set aside the May 14 order because the will was not self-proved and scheduled a new hearing; subsequent proceedings included multiple appeals and dismissals as interlocutory.
After evidentiary hearing, the district court and Court of Appeals rejected Everett’s procedural and substantive challenges; Kansas Supreme Court granted review on several issues and affirmed the lower courts.

Issues

Issue	Plaintiff's Argument (Everett)	Defendant's Argument (Angella/Lisa/Wendling)	Held
Whether vacating the May 14 probate order under K.S.A. 60-260(b) terminated the probate proceeding and required refiling	Vacatur merged the petition into the order, making the petition a nullity and requiring a new timely petition (else time-barred)	Vacatur restores matters to pre-judgment posture; underlying petition remains and proceeding continues	Court held vacatur does not destroy the underlying petition; proceedings continue; Everett’s argument rejected
Whether district court erred by sua sponte scheduling a new hearing after setting aside the probate order, depriving Everett of notice	Court’s June 6 order improperly shifted burden to administrator and deprived Everett of adequate notice	Petitioners had previously requested a hearing and provided notice; amendments and curative procedures apply; no prejudice shown	Court held no error: notice was given, petition related back, no substantial rights impaired
Whether filing alone (without a written signed order setting hearing) failed to “cause the matter to be set for hearing” under K.S.A. 59-2204, so probate was untimely under K.S.A. 59-617	Absent a written, signed order setting a hearing, petition was not "set down" and the 6‑month statute barred probate	Statute requires the petition be caused to be set for hearing (docketing/calendar entry suffices); no written order is required and treating it otherwise creates unfair traps	Court held docketing/setting on court calendar and providing notice satisfied "set for hearing"; lack of signed order was at most a technical defect and not prejudicial
Whether the district court erred in refusing to find a later 1997 will or writing revoked the 1992 will	Everett claimed a 1997 will or writing revoked the 1992 will and satisfied K.S.A. 59-611 revocation methods	No valid later will or revocation writing was proved; testimony showed drafts were not signed and no later testamentary instrument existed	Court held Everett failed to meet burden of proving revocation; district court’s negative factual finding affirmed

Key Cases Cited

In re Estate of Newland, 240 Kan. 249 (procedural defects in probate do not invalidate proceedings unless substantial rights affected)
In re Estate of Shaffer, 203 Kan. 264 (verification defects are amendable and not jurisdictional)
In re Estate of Dumback, 195 Kan. 26 (notice defects not jurisdictional)
In re Estate of Garnand, 177 Kan. 168 (service and form defects not fatal to probate)
In re Estate of Reed, 157 Kan. 602 (mere filing without setting case for hearing does not stop statute of limitations)
Daniels v. Chaffee, 230 Kan. 32 (district court has broad discretion under K.S.A. 60-260[b])
Montez v. Tonkawa Village Apartments, 215 Kan. 59 (Kansas courts look to federal Rule 60 guidance)
Price v. Wyeth Holdings Corp., 505 F.3d 624 (7th Cir.) (vacatur under Rule 60 leaves underlying pleadings intact)
In re Estate of Grisell, 176 Kan. 209 (burden of proving revocation of will rests on party asserting it)
Cresto v. Cresto, 302 Kan. 820 (appellate review limits on disturbing negative factual findings)