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In re Estate of Rickabaugh

Supreme Court of Kansas

March 3, 2017

In the Matter of the Estate of Beuford W. Rickabaugh a/k/a B.W. Rickabaugh, Deceased.


         1. Defects in statutory probate procedures do not invalidate any proceedings unless they affect the substantial rights of the parties.

         2. A successful request for relief from judgment in a civil proceeding vacates the order or judgment but leaves the underlying case and the original pleadings intact.

         3. When the record shows that notice was given and the court has jurisdiction over the parties and the subject matter, mere procedural defects do not render proceedings in probate void.

         4. The purpose of the probate code is to assure the prompt marshalling of the assets and liabilities of a deceased so that legitimate debts may be paid and the remaining estate may be distributed, either in accordance with the deceased's wishes as expressed in a properly executed will, or, in the absence of such a will, as prescribed by statute.

         5. Although K.S.A. 59-2204 requires that a petitioner in probate cause the matter to be set for a hearing, the statute does not define the means for setting down a hearing. The probate statutes do not require a written order setting a hearing.

         6. A court sets a matter down for hearing when it schedules the matter for trial or hearing, usually by making a docket entry, that is, by entering the title of the action in the court's calendar.

         7. When a lower court correctly sets out facts and analyzes the legal issues, an appellate court may rely on that opinion.

         8. The burden of proving the revocation of a will lies on the party asserting the revocation.

         Review of the judgment of the Court of Appeals in 51 Kan.App.2d 902, 358 P.3d 859 (2015). Appeal from Greenwood District Court; Michael E. Ward, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Stanley R. Ausemus, of Stanley R. Ausemus Chartered, of Emporia, and Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, were on the briefs for appellant Everett W. Rickabaugh.

          Rachael K. Pirner and Shane A Rosson, of Triplett, Woolf & Garretson, LLC, of Wichita, and Thomas A. Krueger, of Krueger & Williams, of Emporia, were on the brief for appellees Angella Rickabaugh Glasgow and Lisa Rickabaugh.


          ROSEN, J.

         This appeal involves a contest between, on the one hand, the disinherited son of the decedent and, on the other hand, the son's daughters, who are the beneficiaries under the decedent's will. At the core of the appeal is the interpretation of the procedural requirements that the Probate Code sets for parties petitioning for probate.

         Beuford W. Rickabaugh executed a Last Will and Testament on December 10, 1992. The will directed that, if his wife did not survive him by 60 days, his estate should be placed in a trust for the benefit of his granddaughters, Angella Kay Rickabaugh (Glasgow) and Lisa Jo Rickabaugh. On September 16, 1997, he executed a codicil that did not change the bequest to his granddaughters. On December 19, 2001, he executed another codicil, again leaving intact the bequest to the granddaughters. That codicil named Dale Zimmerman and Geraldine Vann co-trustees for the benefit of the granddaughters.

         Beuford died on April 4, 2012, at the age of 84. The certificate of death listed the death as natural, with the cause of death attributed to acute myocardial infarction, congestive heart failure with cariogenic shock, and lymphoma. He was survived by his son, Everett, by the two granddaughters, and by a brother and sister. Two daughters predeceased him.

         On April 16, 2012, Geraldine Vann filed in Greenwood district court a petition for probate of will and issuance of letters testamentary. On the same day, the court entered an order appointing Vann special administrator of Beuford's estate. The court also set a hearing date of May 14, 2012, on its calendar. On April 19, 2012, April 26, 2012, and May 3, 2012, Vann placed notices of hearing in the Madison News, a local weekly newspaper.

         On May 14, 2012, an uncontested hearing was held, following which the district court granted Vann's petition, admitted Beuford's will to probate, and issued letters testamentary. On June 25, Everett filed a petition and motion to vacate or reconsider the order admitting the will to probate. He alleged that the district court had never entered a statutorily mandated order for hearing and that an evidentiary hearing was necessary.

         On June 28, Vann's attorney, Karen McIlvain, filed an affidavit in which she averred that she had served copies of notice under K.S.A. 59-2209 and 59-2211, the petition for probate, the last will and testament, and an affidavit pursuant to the Servicemembers Civil Relief Act by placing the documents in the United States mail addressed to Everett and Angella, and that she hand-delivered the documents to Lisa.

         On July 20, Vann filed a motion to approve her resignation as executor, based on the request of Lisa and Angella, who had engaged their own counsel. Everett filed an objection to the motion, contending that Vann was an interested party as a witness to Beuford's death and that the granddaughters had exercised improper influence over Vann, seeking her resignation so that they could seize control of the estate proceedings. In a subsequent pleading, Everett alleged that the granddaughters were responsible for Beuford's "premature" death because they removed life-sustaining medical devices from Beuford's hospital care. He next filed a petition to exhibit claims against the estate, asserting that he had entered into an oral contract with Beuford, the terms of which were that Everett would provide farming services to Beuford in exchange for all of his estate upon his death.

         On August 22, the district court granted Vann's resignation as executor and appointed a successor administrator, Joseph Wendling. On October 12, Everett filed a petition seeking judgment that the district court lacked jurisdiction over Beuford's will and codicils due to a failure to comply with the statutory hearing notice. On October 22, Wendling filed an answer to the petition. Wendling stated that the original petition was set for hearing "in accordance with the normal practices of the Greenwood County District Court when the original petition was filed to admit the Last Will and Testament and a Notice of Hearing was sent to the Petitioner along with the other documents."

         On June 6, 2013, the district court set aside its order of May 14, 2012, admitting the will to probate. The court rejected Everett's argument that Vann had failed to cause the matter to be set for a hearing but determined that the will was not self-proved. On June 10, 2013, Everett filed a notice of appeal to the Court of Appeals seeking review of the decision that the probate petition had been properly set for hearing. The appeal was docketed as case number 110, 032. Angella and Lisa filed motions for involuntary dismissal of the appeal as improperly interlocutory, which the Court of Appeals granted on August 1, 2013.

         On August 20, 2013, the district court entered an order readmitting the will to probate. On September 16, 2013, Everett filed a second notice of appeal from the June 6 order, apparently hoping that the order of August 20 sufficed to provide finality for purposes of appeal. The appeal was docketed as case number 110, 576. Angella and Lisa again moved for involuntary dismissal of the appeal, and Wendling joined the motion. On November 7, 2013, the Court of Appeals again granted the motion to dismiss as interlocutory.

         In the meantime, the district court conducted an evidentiary hearing addressing Everett's objections to the validity of the will, which included arguments that: Beuford had revoked the will and codicils, both orally and through an unavailable new will or codicil; Beuford had entered into an oral contract with Everett to leave the entire estate to him in exchange for occasional work on the farm; and the daughters murdered Beuford in order to expedite their access to his estate.

         On January 28, 2014, the district court filed a memorandum opinion constituting a final order. The court rejected Everett's arguments and held that Beuford's estate passed under the will to Angella and Lisa in equal shares. Everett filed a timely notice of appeal to the Court of Appeals. Lisa and Angella filed a timely notice of cross-appeal, which they never docketed. The Court of Appeals resolved the issues against Everett in a published opinion. This court granted Everett's request for review of four of the five issues that he raised below.

         This court has also taken on review In re Estate of Clare, 51 Kan.App.2d 886, 357 P.3d 303 (2015), reversed in In re Estate of Clare, ___ Kan.___, ___ P.3d ___(No. 112, 762, this day decided). Clare presents a question closely related to an issue raised in the present appeal. Because the present case resolves that question, this opinion will also discuss the Court of Appeals opinion in Clare.

         Principles of Probate Procedure

         Since unification of the Kansas court system, all probate matters are handled by the district courts, but probate proceedings are governed by Chapter 59 of the Kansas Statutes Annotated. Gorham State Bank v. Sellens, 244 Kan. 688, 695, 772 P.2d 793 (1989). Nevertheless, "the determination of any issue of fact or controverted matter" in a probate ...

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