In the Matter of the Estate of BETTY JO STRADER, Deceased.
No. 105,964
Court of Appeals of Kansas
Opinion filed April 20, 2012.
(277 P.3d 1163)
David P. Troup, of Weary Davis, L.C., of Junction City, for appellant Janet Pralle.
John McNish, of Bolton & McNish, LLC, of Marysville, for appellee Eric Strader.
William C. O‘Keefe, of Seneca, for appellee Estate of Betty Jo Strader.
Joseph A. Knopp, of Knopp and Bannister, P.A., of Manhattan, for appellees Roger Strader and Regina Crowell.
PIERRON, J.: Janet Pralle appeals the district court‘s admission of the will of Betty Jo Strader, her late mother, to probate. Janet argues the will, found more than 4 years after Betty‘s death, is time-barred and the savings provision does not apply. We affirm the district court‘s decision based on the unusual facts of this case.
On October 19, 2006, Betty died in Blue Rapids, Marshall County, Kansas. She was predeceased by her husband, Gerald Strader, and survived by five adult children: Roger Strader, Alan Strader, Janet Pralle, Eric Strader, and Regina Crowell.
On February 2, 2007, the district court found that Betty had died intestate on October 19, 2006, and appointed Weis administrator of her estate. Weis later valued Betty‘s estate at $904,415.56—$589,000 in real estate, $1,000 in household furnishings, $10 in securities, $65,985.56 in mortgages, notes, and cash, $85,200 in other personal property, and $163,220 in an oil drilling company. Throughout 2007, Weis facilitated the sale of livestock, grain, scrap metal, heavy equipment, and a lease of pastureland. Janet‘s appeal of a proposed sale of real and personal property and payment of Eric‘s $10,000 oil drilling company bonus resulted in protracted litigation. See In re Estate of Strader, No. 101,195, 2010 WL 1882146 (Kan. App. 2010) (unpublished opinion) (remanded for decision on merits of appeal).
In November 2010, Weis was discharged as administrator due to health concerns and replaced by William O‘Keefe. In December 2010, the district court approved a public auction of the real and personal property and, notwithstanding Janet‘s objection, permitted a partial distribution of $20,000 to each heir. Betty‘s estate was worth $1,348,146.62 at final valuation, including $898,900 in real estate and $160,527.63 in personal property.
On February 22, 2011, Jason Brinegar, of Galloway Wiegers & Brinegar, P.A. (law firm), notified the court that Betty‘s will had been found at his Marysville law office “[d]uring a recent review of old files and general housekeeping.” That same day, Eric filed a petition for probate of the will under
At the evidentiary hearing on March 21, 2011, the district court took judicial notice of the original wills of both Betty and Gerald. Gerald‘s will had been admitted to probate years earlier. Cynthia Mason testified she had worked at the law firm as a secretary from 1978 to 2000. Witnessing wills was part of her job description. Mason testified that because the wills bore her signature and proper procedure was always followed, she must have witnessed Betty and Gerald sign their respective wills on August 28, 1985. The law firm relocated in 1984. In the old building, original wills were kept in a big safe. In the new building, they were kept in a large box with drawers like “little safe deposit boxes,” which had labels on the front and could hold up to 10 wills. Mason checked the boxes two or three times during her employment to ensure that they were correctly marked.
Keith Sprouse testified he had drafted and witnessed Betty‘s will. Before becoming a district court judge, Sprouse was a partner at the law firm. He drafted between 50 and 75 wills as a private practitioner. His procedure for drafting a will was to (1) meet with the client to determine his or her wishes regarding property distribution, (2) prepare the document in the proper format, and (3) ensure the document was correctly witnessed. Sprouse drafted and witnessed the wills of both Betty and Gerald. The law firm kept original wills first in a vault, then in a large box containing locked “bank box-like things.” Betty‘s will was kept in that box.
Eric testified he had searched for his mother‘s will after her death. Gerald had told Eric about the execution of the wills at the law firm, as well as the contents of the wills. Eric never had possession of his mother‘s will. After Betty died, Eric looked through her house but did not find her original will. Regina called the law firm and scheduled a meeting, which was attended by Eric, Regina, and Roger. In the week following Betty‘s death, the siblings requested her original will but Brinegar only produced an unexecuted copy. In the second week following Betty‘s death, Eric looked through her house again, found her safe deposit box key, and went to the bank with Roger, Weis, Spain, and Brinegar. How-
Julie Champoux testified she had worked at the law firm for 3 years as an accountant. She and Brinegar were looking through the safe deposit boxes in the law firm for another client‘s will when Brinegar found Betty‘s will. Champoux testified he was surprised to find the will.
Janet testified that she believed her mother did not have testamentary capacity. Her testimony is not relevant to this appeal.
Spain testified he was the attorney for Betty‘s estate. After he met with Betty‘s children at the law firm, Brinegar sent him two unexecuted copies or drafts of Betty‘s will because “that was the best they could come up with.” Janet had one of these copies (the 1996 draft) admitted into evidence to support her argument that Betty did not intend for her 1985 will to control. Upon finding Betty‘s original will, Brinegar contacted O‘Keefe, the administrator of Betty‘s estate.
Regina Crowell testified that she believed Betty‘s will was consistent with her intentions regarding property distribution.
After hearing all the evidence, the district court admitted Betty‘s will to probate. The court found that In re Estate of Tracy, 36 Kan. App. 2d 401, 140 P.3d 1045 (2006), controlled and In re Estate of Seth, 40 Kan. App. 2d 824, 196 P.3d 402 (2008), was in accord. The court also made an express finding that no one knowingly withheld Betty‘s will from probate.
Janet argues the district court erred in admitting Betty‘s will to probate under
Interpretation of a statute is a question of law over which this court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
If a district court reaches the right result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005).
An exception to the 6-month limitation is found in
“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, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the petition for probate of the will after the expiration of six months from the death of the decedent.” (Emphasis added.)
The Kansas Legislature added the following clauses to
“[T]he said will may be admitted to probate as to any innocent beneficiary on the application by him for such probate, if such application is made within ninety days after he has knowledge of such will and access thereto and within five years after the death of the testator: Provided, The title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees, or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the application for probate thereof after the expiration of one year from the death of the decedent.” L. 1943, ch. 213, sec. 2.
Subsequent amendments changed “one year” to “nine (9) months,” “application” to “petition,” L. 1972, ch. 215, sec 2, “the said will” to “Said will,” L. 1976, ch. 242, sec. 6, “Said Will” to “Such will,” “nine (9) months” to “six months,” and struck the “within five years” requirement. L. 1985, ch. 191, sec. 9.
It is noteworthy that a will withholder was once barred from taking under the will because it acknowledges the possibility that the withholder was a beneficiary, rather than a disinterested party. Moreover, the leading treatise on the subject describes a
Eric‘s argument that the savings provision was enacted to undo the result of In re Estate of Colyer, 157 Kan. 347, 139 P.2d 411 (1943), is fundamentally flawed because that decision was rendered on July 10, 1943, after
In Tracy, 36 Kan. App. 2d 401, this court interpreted
In Tracy, the district court held that
To ascertain the legislative intent behind
The Tracy holding is slightly less damaging to Janet‘s argument than the rationale because this case is factually distinguishable. As in Tracy, Betty‘s will was left with its scrivener and was not discovered within 6 months of her death. Tracy‘s will was found 6 months and 3 days after death, whereas Betty‘s will was found about 4 years and 4 months after her death. As in Tracy, intestacy proceedings were commenced by Betty‘s heirs: but Tracy‘s estate had been fully administered before both the heirs and executor filed their probate petitions amidst opposition from the guardian ad litem (on behalf of unknown heirs), whereas Betty‘s estate was still being administered when Eric (supported by two other heirs) filed a probate petition amidst opposition from Janet (another heir). Nevertheless, the timeline of this case is not a valid reason for refusing to apply Tracy‘s rationale because, as the appellees point out,
In Seth, 40 Kan. App. 2d 824, this court interpreted
The district court held that the son was an innocent beneficiary entitled to file a probate petition under
The language of this portion of the statute appears to pursue the goal of probating all valid wills if possible. We readily concede that the statute might also be interpreted to allow for the late filing only if a withheld will is involved. The placing of this provision in a section which discusses withheld wills and the use of “such will,” perhaps referring only to withheld wills, weighs into that conclusion.
We also note that Betty‘s estate was still open when the will was found and that Tracy has been in effect for almost 6 years. Tracy was not appealed, and Seth dealt with a knowingly withheld will (although there is dicta that seems to favor Janet‘s position) and did not mention Tracy. In addition, there has been no legislative action to cure Tracy if its finding was incorrect.
For these reasons, we affirm the district court‘s decision.
Affirmed.
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GREENE, C.J., dissenting: I respectfully dissent because the majority has not properly construed the statutes in question, nor have they honored clear legislative policy regarding the statutory time bar for the probate of wills.
The key portions of the operative statute read as follows:
”Liability and effect of withholding will. 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 . . . . 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 . . . .”
K.S.A. 59-618 .
As this court clearly held in In re Estate of Seth, 40 Kan. App. 2d 824, 828, 196 P.3d 402 (2009), the statutory term “such will” is “a will that has been knowingly withheld from probate.” Prior cases demonstrate that where a will has not been knowingly withheld
“Appellant seeks to avoid the force and effect of [59-617] by directing our attention to [59-618] and 59-621, the first of which deals with knowingly withholding a will from probate and damages consequent therefrom, and the second of which deals with the duty of the custodian of a will to deliver it to the court having jurisdiction, and penalties and damages for willful neglect or refusal to so deliver. The latter sections cannot be interpreted as an exception to the period of limitation in which an application must be made for probate of a will. The first section [59-617] deals knowingly with withholding so that a beneficiary does not learn of the will and consequently makes no application for its admission to probate. Its effect is to provide a penalty for the wrongful withholding, and not an exception to the time in which an application for probate must be made.” (Emphasis added.) 157 Kan. at 349.
This conclusion is also clear from the statutory language alone. The phrase “and knowingly withholds it” in
Moreover, this conclusion is buttressed by the statutory title of
Legislative policy is reflected in
Here, the district court made a finding that “no person knowingly withheld the will from probate.” I would hold that, given this clear and undisputed finding,
I would reverse the district court and remand with directions to bar admission of the will to probate.