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In re Estate of Seth

November 21, 2008

IN THE MATTER OF THE ESTATE OF MARVEL M. SETH, DECEASED.


Appeal from Morris District Court; STEVEN L. HORNBAKER, judge.

SYLLABUS BY THE COURT

1. K.S.A. 59-617 provides that no will is effective unless a petition is filed for probate of the will within 6 months of the death of the testator. An exception to this rule is found in K.S.A. 59-618, which provides in material part that a will knowingly withheld from probate may be admitted to probate as to any innocent beneficiary on petition for probate by any innocent beneficiary if the petition is filed within 90 days after the innocent beneficiary has knowledge of the withheld will and access to it.

2. An "innocent beneficiary" under K.S.A. 59-618 means a beneficiary without fault for the knowing withholding of a will from probate during the 6-month period following the death of the testator.

3. The first sentence of K.S.A. 59-618 serves to make a person who knowingly withholds a will from probate during the 6 months after the testator's death liable for fees, costs, and damages to beneficiaries who do not have possession of the withheld will.

4. The second sentence of K.S.A. 59-618 is the savings provision and provides for belated admission to probate of a will that has been knowingly withheld from probate if an innocent beneficiary who has not knowingly withheld the will petitions for probate within 90 days of his or her knowledge and access to the withheld will.

5. Public policy in Kansas favors probating every legally executed will and does not favor suppressing a will or withholding it from probate by narrow and technical applications of the statutes governing probate.

6. Under the facts of this case, a beneficiary who sought the timely admission of a will to probate but whose attorney failed to act in this manner despite false assurances to the contrary is an innocent beneficiary for purposes of K.S.A. 59-618 and may petition for belated admission of the will to probate within 90 days of regaining access to the will from the attorney.

The opinion of the court was delivered by: Greene, J.

Affirmed.

Before GREENE, P.J., HILL, J., and BRAZIL, S.J.

This appeal frames for our determination the interpretation and application of K.S.A. 59-618, which specifies circumstances for the belated admission of a will to probate by an innocent beneficiary after it has been knowingly withheld from probate during the 6 months following testator's death. The district court held that Laryl E. Seth, a beneficiary under the will of Marvel M. Seth, deceased, was an innocent beneficiary under the statute and permitted the belated admission of the will to probate. Some of the heirs at law, grandchildren of the testator, contend the statute does not permit such admission where the beneficiary had both knowledge and access to the will within 6 months after death of the testator but the failure of timely admission was caused by inaction of that beneficiary's attorney. We affirm the district court.

Factual and Procedural Background

Marvel M. Seth executed a valid will on May 13, 1984, leaving her 320-acre family farm to one of her sons, Laryl. At the time of her death on December 4, 2005, Marvel was survived by Laryl, daughter Loyola, and three children of her second son, Lowell, deceased. In February 2006, Laryl and Loyola found the will and took it to an attorney, Kenneth McClintock, instructing him to admit it to probate.

After the initial meeting with McClintock, Laryl tried repeatedly to contact him to ask about the will. On two occasions between April and May 2006, McClintock assured Laryl on the phone and in person that he was "taking care of" the will. The 6-month period for probate under K.S.A. 59-617 expired in early June 2006. In late June 2006, however, the will had not been admitted to probate, and McClintock admitted he failed to meet the statutory deadline. McClintock possessed no assets or insurance to respond to a judgment, and he ...


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