In the Matter of the Estate of Beuford W. Rickabaugh a/k/a B.W. Rickabaugh, Deceased.
BY THE COURT
Defects in statutory probate procedures do not invalidate any
proceedings unless they affect the substantial rights of the
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.
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.
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
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.
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
a lower court correctly sets out facts and analyzes the legal
issues, an appellate court may rely on that opinion.
burden of proving the revocation of a will lies on the party
asserting the revocation.
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.
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.
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
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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
of Probate Procedure
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