The contestants of the last will and testament of Lucille S.
Bennett, deceased, appeal from the decision of the trial court
admitting her will to probate.
The trial in this matter was lengthy, complex, and well
conducted by all parties. The estate has a value in excess of $50
Lucille and Henry Bennett were married in 1943. The marriage
was the first and last for each and was childless. Lucille had
two sisters and two brothers, all of whom predeceased her. Henry
had two brothers and two sisters. None of Henry's siblings
During their marriage, Lucille and Henry lived very simply and
very frugally. Theirs was an old-fashioned type of relationship
in which Lucille apparently paid no attention to financial
matters and was led to believe that she and Henry were living on
very limited assets. Henry apparently encouraged Lucille to
believe that the parties were "hard up" and were barely eking out
an existence on his meager earnings. They lived in an
unpretentious home, drove an old car, and apparently counted
their pennies in their day-to-day existence.
Unbeknownst to Lucille, Henry was building a rather large
fortune in his business endeavors. He made a great deal of money
in the oil business and, thereafter, invested wisely in stocks,
bonds, and securities.
In 1979, Lucille suffered a stroke that paralyzed a good
portion of her left side. When Henry brought her home from the
hospital, he arranged for her to have 24-hour nursing care. From
this time to the time of her death, Lucille was a semi-invalid
and continued to have 24-hour nursing care. Despite her physical
problems, Lucille appears to have maintained her mental
faculties. Although the evidence on the issue is sharply
conflicting, the trial court found that she suffered from no
memory loss, disorientation, or dementia as a result of her
Shortly before he died, Henry told Lucille that he had suffered
some business losses and that he feared that he might not be able
to afford to continue her 24-hour nursing care. Lucille greatly
feared being sent to a care home and did not want to be alone. To
the end of her life, she feared losing her 24-hour nursing staff
and being sent to a care home.
In December 1982, Henry was about to leave for work when he
fell down the basement stairway at his home. As a result of his
injuries, Henry died at the hospital later that day at the age of
At the time of Henry's death, neither Henry nor Lucille had any
living siblings. Their only heirs were various nieces and nephews
on both sides of the family. Henry did not leave a will, and his
entire estate passed to Lucille under the laws of intestate
Lucille had executed a will in 1976. The appellants, whom we
shall collectively refer to as the contestants, are from
Lucille's side of the family and would have shared in her 1976
will. They are: Leonard Lebow, her great nephew; Wendy Lebow and
Heather Lebow, her great nieces; and Shirley Hellman, the widow
of her nephew Bert Lebow.
The proponents of the will are the appellees, and we shall
collectively refer to them as proponents. They are all the
devisees and legatees under Lucille's 1982 will. It is this will
which is being attacked by the contestants and which was admitted
to probate. The proponents are all from Henry's side of the
family. They are: Sonya Ropfogel, Henry's niece; Leonard
Ropfogel, the husband of Sonya and the named executor in the 1982
will; the three children of Sonya and Leonard, Susan Ropfogel
Poppelwell, Terry Ropfogel Mueller, and Linda Ropfogel; Joyce
Weingarden, the daughter of Henry's brother Abner; and Paul
Weingarden, Robert Weingarden, and Phillip Weingarden, the
surviving children of Henry's sister, Gertrude Weingarden.
Thus, the battle was joined. The proponents sought to admit the
1982 will of Lucille to probate. The contestants sought to deny
probate of that will on the grounds that it was a product of
undue influence, that Lucille lacked testamentary capacity, and
that the will should be denied probate under K.S.A. 59-605.
The principal actors in the combat taking place are Leonard and
Sonya. It is they whom the contestants brand as villains. It is
Sonya and Leonard who are accused of exerting undue influence,
and it is Sonya whom the contestants assert actually prepared
Lucille's 1982 will. Leonard and Sonya, on the other hand, argue
that they only sought to aid, assist, and comfort an aging, sick,
and lonesome Lucille. They came to her aid on the day of Henry's
death, and they continued to provide her with aid, comfort, and
assistance to her dying day.
The evidence in this case is, at times, sharply conflicting. In
the final analysis, the trial court chose to believe the evidence
submitted by the proponents of the will and chose to disbelieve
the evidence of the contestants. Our task is to determine whether
the trial court erred in choosing this course of action.
A complete recital of the facts would greatly extend this
opinion. We shall attempt to sketch those facts as they apply to
the issues raised. We note that the essential issue on appeal is
the validity of Lucille's 1982 will, and we concentrate on the
facts which relate to that question.
After Henry's death, various individuals came to the aid and
assistance of Lucille. Among those responding were Leonard and
Sonya. Among the issues discussed was whether Henry had left a
Apparently, Henry and Lucille had done a good deal of their
past legal work with Arthur Skaer, of Wichita, who had written
Lucille's 1976 will. However, Leonard's attorney was Tom
Triplett, also of Wichita. On the day of Henry's death, Leonard
called Triplett and asked him about the effect of Henry's
apparent intestacy. Triplett advised Leonard of the law, and the
parties discussed the need to administer Henry's estate. Later
that same day, Leonard called Triplett and told him that Lucille
wanted Leonard to serve as administrator of Henry's estate and
instructed Triplett to draw up the necessary pleadings to get
Pursuant to instructions from Leonard, Triplett drew the
necessary documents and took them to Lucille's home that evening
on his way home from work. Triplett testified that Lucille seemed
alert and told him she had great confidence in Leonard and wanted
him to serve as administrator of Henry's estate. While at
Lucille's home, Triplett was advised by an accountant for Henry
that Henry's estate would be valued at somewhere between $40
million and $50 million.
Upon learning of the value of Henry's estate, Triplett advised
Lucille, who was very surprised but relieved that she could
apparently afford to keep her 24-hour nursing staff. It is to be
noted that Lucille, at times, expressed some dissatisfaction with
the fact that Henry had hidden their wealth from her all of the
years of their marriage. She indicated some resentment over the
manner in which they had lived while she labored under the belief
they were nearly penniless.
Ultimately, Leonard was appointed administrator of Henry's
estate. The problem of posting a very large and costly bond was
solved by having Lucille sign the surety bond for Leonard.
We note at this point that Henry died on December 1, 1982. The
will in question was executed on December 21, 1982. As a result,
the events which we relate took place over a rather short time
A few days after Henry's death, Leonard discovered that Henry
had a lock box at a local bank. No key could be located, and
Leonard made the necessary arrangements to have the box drilled.
The box was opened in the presence of Leonard and Triplett. In
looking through the box, the two discovered Lucille's 1976 will,
along with certain other documents and a diamond ring. The box
was then rekeyed in the names of Lucille and Leonard, and the
1976 will was placed back in the box. Triplett advised Leonard to
tell Lucille they had found her will. Leonard did so advise
Lucille and, a few days later, called Triplett and told him that
Lucille wanted a copy of her will. Triplett and Leonard then
removed the will from the lock box and made a copy for Lucille.
The original will was placed in a safe at Triplett's law office.
In time, Triplett went to Lucille's house with the copy of her
1976 will. Lucille advised Triplett that, at the time she
executed the 1976 will, she did not think that she had any money
or property. She told Triplett that, since all of her newly
acquired wealth came from Henry, she wanted to change her 1976
will to leave her entire estate to Henry's side of the family.
Lucille advised Triplett that this is what she believed Henry
would want her to do.
Several days later, Triplett got a telephone call from one of
Lucille's nurses, telling him that Lucille was ready to change
her will. Triplett went to Lucille's home and discussed with her
the terms of her proposed will. The record indicates that the
parties were alone in the room at the time the terms of Lucille's
proposed will were discussed. Lucille instructed Triplett to draw
a will, leaving the estate to persons on Henry's side of the
According to Triplett, during the meeting to discuss the
details of her will, Lucille was clear and direct. He thought she
might have had a piece of paper in her hand while she was telling
him what she wanted in her will. However, Triplett could not
remember whether Lucille looked at or referred to this piece of
paper in giving him instructions.
In any event, Triplett drew the will as directed by Lucille and
returned to her home the next day. He brought with him two
individuals from his law office to serve as witnesses. Triplett
began to read the will to Lucille, and, at one point, she stopped
recitation, telling him that she wanted to leave her engagement
ring to Sonya. Triplett made this change on the will, and Lucille
executed the will. As indicated above, this will was executed on
December 21, 1982.
According to Triplett, after the 1982 will was executed, he
thought that he had torn up her 1976 will and tossed it in the
trash can. Triplett took the new will and placed it in the safety
deposit box, which was in the name of Leonard and Lucille.
Lucille died on October 23, 1989, and her 1982 will remained in
full force and effect from the date of its execution to the date
of her death.
The 1982 will, which was admitted to probate, distributes
Lucille's estate as follows:
(a) Lucille's engagement ring and residence to Sonya.
(b) The sum of $1,000 to Susan Ropfogel.
(c) The sum of $1,000 to Terry Mueller.
(d) The sum of $1,000 to Linda Ropfogel.
(e) The sum of $5,000 to the Hebrew Congregation
Synagogue of Wichita.
(f) The rest and residue of Lucille's estate was
devised and bequeathed as follows:
(1) An undivided one-third of the rest and residue to
her brother-in-law, Abner Weingarden, and if he
did not survive her, his share was to be paid to
his daughter, if she was living at the time of
(2) An undivided one-third interest of the rest and
residue to her sister-in-law, Gertrude
Weingarden, or in the event Gertrude Weingarden
was not living at the time of her death, then to
the children of Gertrude Weingarden living at the
time of Lucille's death.
(3) An undivided one-third interest in the rest and
residue to her niece, Sonya, or to the children
of Sonya if Sonya was not living at the time of
Additional facts will be discussed when necessary to deal with
PROOF REQUIRED TO PROVE UNDUE INFLUENCE
The trial court, in conclusion of law No. 2, ruled:
"Where proponents of a will establish a prima facie
case of due execution and capacity, the burden shifts
to those contesting such will to prove their defenses
of undue influence and lack of testamentary capacity
by clear and convincing evidence." (Emphasis added.)
The contestants argue that this conclusion of law is erroneous.
They do not dispute that they have the burden of proving undue
influence but argue that their burden is to prove it only by a
preponderance of the evidence. It is the contention of the
contestants that the trial court committed reversible error in
requiring their proof to reach a clear and convincing standard.
The question is not as easily resolved as might be imagined. We
recognize the theoretical seriousness of the contestants'
argument. As a practical matter, when trial is to the court, the
weighing of evidence is largely a matter left to the "eye of the
beholder." We doubt very much that an experienced trial judge is
much bothered by euphemisms such as clear and convincing or
preponderance of the evidence. The process of fact finding is
entirely subjective, and it is highly unlikely that the decision
in this case would have been any different if the evidence had
been weighed by a higher standard. Still, we agree that, if the
trial court erred in its conclusion as to the required standard
of proof, such error would be reversible error.
This court held in the recent decision of In re Estate of
Koch, 18 Kan. App. 2d 188, Syl. ¶ 16, 849 P.2d 977 (1993):
"When a will is offered for probate, the proponent
has the burden of proof in the first instance to
present a prima facie case showing due execution of
the will. Once this prima facie showing has been
made, the burden of proof shifts to the contestant to
overcome that showing by clear, satisfactory, and
We made this statement in the context of placing the burden of
proof on an issue of undue influence. We believe that to be the
correct standard of proof in such cases. We conclude, however,
that we cannot simply rest our decision on Koch without further
The contestants base their argument in this appeal on two
Supreme Court cases which clearly support that argument. In
Colvin v. Colvin, 128 Kan. 691, 280 P. 763 (1929), the
Supreme Court was dealing with a claim that a will was the result
influence. In explaining the burden of proof, the Supreme Court
"The first assignment of error is in overruling the
demurrer to plaintiff's evidence. It is correctly
argued by the appellant that there is no presumption
of the exercise of undue influence even when a
fiduciary relationship exists as in this case, when
the evidence affirmatively shows that [the testatrix]
had independent counsel to advise her. On the other
hand, the presumption is in favor of the validity of
the will when it has been regularly admitted to
probate in the proper court, as this will was
admitted. So there is no question in this case as to
any presumptions being in favor of the plaintiffs,
but in fact the presumptions is against them and the
burden of proof is upon them to establish by a
preponderance of the evidence that there was in fact
undue influence exercised over the mother by the son
in the execution of the will." (Emphasis added.) 128
Kan. at 696.
The Colvin case says that, while there is a presumption in
favor of the proponents when the will has been admitted to
probate, the contestants can overcome that presumption by a
preponderance of the evidence. We note that the decision cites no
previous cases in support of the statement made.
In In re Estate of Eyman, 181 Kan. 90
, 309 P.2d 664 (1957),
the Supreme Court again dealt with the issue of undue influence
in a will contest. In that case, the court said:
"The burden of proof is upon the parties attacking
the will of a person of sound mind on the ground of
undue influence. All that is necessary is that the
evidence produced shall preponderate over the
evidence adduced and the presumptions prevailing on
behalf of the proponent of the will. In making proof
the parties attacking the will are not limited to the
bare facts which they may be able to adduce, but they
are entitled to the benefit of all inferences which
may be legitimately derived from the established
facts. (Ginter v. Ginter, [79 Kan. 721, 101 P. 634
(1909)]; Colvin v. Colvin, 128 Kan. 691,
280 P. 763; and In re Estate of Harris, 166 Kan. 368, 374,
201 P.2d 1062.)" (Emphasis added.) 181 Kan. at 98-99.
The last authority cited by the contestants to support their
position is taken from 3 Bartlett, Kansas Probate Law and
Practice § 1247, p. 117 (rev. ed. 1953), where the author stated:
"The usual rules as to the weight and sufficiency
of the evidence prevail in proceedings to contest or
establish wills. What constitutes testamentary
incapacity or undue influence invalidating a will is
a question of law. But whether a testator had mental
capacity to make a will or made a will under undue
influence is a question of fact to be determined by
the trial court from the evidence. The triers of the
facts are to determine the questions in issues by a
preponderance of the evidence." (Emphasis added.)
There is clear authority cited by the contestants to this court
to support their position. The question we must decide is whether
the authorities cited by the contestants are still controlling.
We conclude that the authorities cited by the contestants are
either no longer controlling or were simply misstatements of the
applicable standard of proof required.
In decisions dating as far back as 1909, it has been recognized
that, to overcome a prima facie case of a will's validity, the
proof must be something more than a mere preponderance. In
Ginter v. Ginter, 79 Kan. 721, 738, 101 P. 634 (1909), the
rule is stated as follows:
"When an instrument is presented in the form of a
will which has been duly executed and attested
according to the statute of wills the law presumes it
to be valid. This presumption must be overcome by
proof, and the burden of proof rests upon whoever
alleges it to be the product of undue influence or
fraud. In all cases this proof must be substantial."
In Brennan v. Dennis, 143 Kan. 919, 954, 57 P.2d 431 (1936),
the court said: "He who alleges such undue influence and fraud
has the burden of proof. The proof must be substantial, so that
judges of the facts, who know what undue influence is, may see by
whom and in what manner it has been exercised." (Emphasis added.)
Undue influence, in order to vitiate the will of a decedent,
must directly affect the testamentary act itself. It must be so
powerful and overwhelming that it obliges the testator to adopt
the will of another. In re Estate of Ziegelmeier, 224 Kan. 617,
622, 585 P.2d 974 (1978). Consequently, undue influence is a
defense to a prima facie case that the will was properly
executed. In fact, in the instant matter, the written defenses
filed by the contestants to the petition for probate allege undue
influence as a written defense to that petition.
When viewed from this particular perspective, it is apparent
that those who seek to deny the probate of a will on the grounds
of undue influence must rebut the presumption of validity which
arises from the proof of a prima facie case.
The trial court found that a prima facie case of due execution
and capacity had been shown by the proponents. The decisions
in this state are numerous as to the standard of proof required
to rebut a prima facie showing of due execution:
"The general rule is that where a will is offered
for probate, the burden of proof in the first
instance is upon the proponent to make a prima facie
case showing due execution of the will and when such
a prima facie showing has been made, the burden
shifts to the contestant to overcome that showing by
clear, satisfactory and convincing evidence." In re
Estate of Wallace, 158 Kan. 633, 637, 149 P.2d 595
Other Kansas cases to the same effect include: In re Estate of
Suesz, 228 Kan. 275
, 277, 613 P.2d 947 (1980); In re Estate of
Perkins, 210 Kan. 619
, 624, 504 P.2d 564 (1972); In re Estate
of Wittman, 161 Kan. 398, 401-02, 168 P.2d 541 (1946).
There is another reason for the clear and convincing standard
of proof. Undue influence is a species of fraud, and the terms in
our decisions are used almost interchangeably. In re Estate of
Ziegelmeier, 224 Kan. at 622; In re Estate of Carothers,
220 Kan. 437, 443, 552 P.2d 1354 (1976); Hopper v. Sellers,
91 Kan. 876, 884, 139 P. 365 (1914); Ginter v. Ginter, 79 Kan. 721,
Syl. ¶ 2.
In this state, the burden of proving fraud has almost always
been higher than a mere preponderance of the evidence:
"Defendant next contends the agreement was induced
by fraud, coercion and undue influence. It is hardly
necessary to list the citations of authority on the
long-standing rule in this state that one who asserts
fraud must prove it by a preponderance of the
evidence; that such evidence should be clear,
convincing and satisfactory, and that it does not
devolve upon the party charged with committing the
fraud to prove the transaction was honest and bona
fide. Fraud is never presumed; it must be proved.
Mere suspicion is not sufficient. [Citation
omitted.]" Hoch v. Hoch, 187 Kan. 730, 732, 359 P.2d 839
We note that the Supreme Court in Hoch talks about the burden
being not only by a preponderance of the evidence but by a
preponderance of clear, convincing, and satisfactory evidence. We
suspect that somewhere along the line the use of the words
"preponderance of the evidence" has been dropped from the
standard of proof required in ...