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In re Estate of Field

Court of Appeals of Kansas

February 16, 2018

In the Matter of the Estate of Earl O. Field.

         SYLLABUS BY THE COURT

         1. Whether a will satisfies the statutory formalities is a question of law subject to unlimited appellate review.

         2. When a will is offered for probate, the burden of proof is initially upon the proponent of the will to make a prima facie case showing capacity and due execution of the will.

         3. The statute setting forth the requirements for the proper execution of a will requires that a will be attested by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will and that the witnesses subscribe the will in the testator's presence. K.S.A. 59-606.

         4. Once it has been shown that a will has been executed in accordance with the formalities required by law, the burden shifts to the will contestant and he or she must produce evidence to support his or her position.

         5. A proponent of a will may meet the "due execution" requirement of K.S.A. 59-2224 when nothing on the face of that document raises the suspicion that a competent testator's signature at the end of it and witnessed by two persons is forged. In that event, a will contestant who alleges that the testator's signature on it is forged bears the burden of showing the invalidity of that signature.

         6. Because fraud must be shown by clear and convincing evidence, we review all the evidence to determine whether a rational fact-finder could have found it highly probable that someone other than the testator forged the testator's signature on the purported will or codicil.

         7. When determining whether evidence shows fraud by clear and convincing evidence, we do not weigh conflicting evidence, pass on the witnesses' credibility, or redetermine questions of fact.

         8. A witness' videotaped testimony may be impeached or discredited by means other than a specific fact witness, such as by the totality of the circumstances.

         9. In cases of circumstantial evidence, a fact-finder who makes a presumption based upon other presumptions engages in inference stacking that does not support a finding of sufficient evidence.

         10. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference.

         11. We review a district court's decision to award attorney fees under K.S.A. 59-1504 for an abuse of discretion.

         12. The probate statute permits attorney fees to be awarded to litigants who act in good faith to admit a will to probate, whether successful or not, and to litigants who successfully prevent a will from being probated. K.S.A. 59-1504.

         13. The person who must act in good faith to be allowed attorney fees for trying to admit a will to probate is the client and not his or her attorney.

         14. The proponent of a forged will or codicil, who also participated in the forgery, lacks the good faith necessary to be awarded attorney fees pursuant to K.S.A. 59-1504.

         Appeal from Ellis District Court; William F. Lyle Jr. and Jack L. Burr, judges.

          Donald F. Hoffman and Melvin J. Sauer Jr., of Dreiling, Bieker & Hoffman LLP, of Hays, for appellant Wanda Oborny.

          Coy M. Martin, of Bever Dye, LC, of Wichita, and John Terry Moore, of John Terry Moore L.C., of Wichita, for appellee Fort Hays State University Foundation.

          Before Gardner, P.J., Buser and Atcheson, JJ.

          Gardner, J.

         After a nine-day trial to the court at which testimony from over 30 witnesses and over 300 exhibits were admitted, the district court denied Wanda Oborny's attempt to admit a codicil to probate. A codicil is a supplement or postscript to a will. In re Estate of Heilig, 211 Kan. 608, 608, 506 P.2d 1147, 1147 (1973). The district court found that the purported codicil had been signed by Oborny, or someone at her behest, instead of by the person who died and whose signature appeared to be on it-Earl O. Field-Oborny's employer. Accordingly, the purported codicil was invalid and Field's previous will governed, directing that Field's estate, worth over $20, 000, 000, went nearly all to Fort Hays State University (FHSU) instead of one-half to Oborny, one-fourth to Field's attorney, and one-fourth to FHSU, as stated in the purported codicil. A different judge granted Oborny's request for attorney fees. That ruling is the subject of a separate appeal which has been consolidated with the will contest for purposes of argument and decision.

         The parties have briefed numerous issues on appeal, but we find it necessary to address only two: whether clear and convincing evidence supports the district court's ruling that the purported codicil was not signed by Field and whether the district court abused its discretion in awarding attorney fees to Oborny's counsel. As explained below, we affirm the district court's ruling on the signature issue but reverse the award of attorney fees.

         Factual Background

         We provide only a short chronology of key events here and include the bulk of the facts in our review of the sufficiency of the evidence.

         In January 2009, Field and Winona M. Field (Nonie) executed reciprocal wills. They had no children and bequeathed the vast majority of their estate to FHSU after the death of the surviving spouse. After being married over 70 years, Nonie died in 2009.

         In 2010, Field executed a will with provisions similar to those in the 2009 will. It left a life estate for the Burghart family who farmed land for the Fields in western Kansas, provided that the land and associated mineral interest that Nonie and her brother, Carl Brecheisen, had inherited from their father would stay in that family, and provided a monetary gift to the Brecheisens. The residuary estate was to pass to the FHSU Foundation to fund music and athletic scholarships for students attending FHSU, the Fields' alma mater.

         Field's 2010 will was prepared by Joe Jeter, Field's long-time attorney. When Field contacted Jeter about his will in 2010, Jeter called a meeting with the President and CEO of the FHSU Foundation because Jeter understood that the 2010 will would be Field's last will and he wanted to be sure the will would work for the Foundation. Field then executed the 2010 will, leaving all to FHSU Foundation except for the specific gifts to the Burgharts and Brecheisens. Field chose Jeter and his brother, Bill Jeter, as co-executors, and Joe kept Field's original 2010 will in Joe's office.

         Field met Wanda Oborny when she was working at Farmer's State Bank in Hays, Kansas. She later found employment at the accounting firm Wellbrock and Lutz, Field's accounting firm, and got to know Field when he visited between two and four times each year. Eventually, Field offered Oborny a job as his bookkeeper.

         Oborny worked part time for Field beginning in 2008 until his death in 2013. Field became very depressed after Nonie died in 2009, and a witness described him as lost and vulnerable. Field started spending more time with Oborny, who helped Field with errands and brought him food. Field gave Oborny access to numerous bank and investment accounts he held at various institutions and listed her on several accounts as a joint account holder with the right of survivorship. She had access to his personal and business documents and the ability to sign checks drawn on his accounts. Oborny received hundreds of thousands of dollars of Field's funds before and after his death, and the parties disputed whether Field knowingly condoned or authorized those transactions.

         Shortly after January 8, 2013, Field called Oborny and told her that he had fallen. Oborny visited Field at his home while he was recovering and helped him make trips to his office. When Oborny went to work on January 28, 2013, Field was not there. Oborny called Field and he asked her to come to his home. According to Oborny, Field told her that he was "done" and asked her to call his doctor. Oborny drove Field to the hospital where Field was admitted and diagnosed with cancer. On January 31, 2013, Field was admitted to a rest home where he received hospice care.

         Field died on February 19, 2013. Oborny was not present when Field died because she had to "run to the bank." That evening, Oborny went to Field's office and testified that she happened to find in Field's desk drawer two typewritten letters dated January 23, 2013, signed by Field: one in an envelope addressed to Oborny and one in an envelope addressed to Jeter. Oborny opened the envelope addressed to her and found a letter instructing that half of Field's estate should be left to her with the remaining half divided equally between Field's attorney and FHSU. But the letters bore no witness signatures.

         The next day, on February 20, 2013, Oborny showed Jeter the letter she had found addressed to him. The letter to Jeter bore the same date and was identical to the letter addressed to Oborny, except that on Oborny's letter a personal note to Oborny had been added and the date line had been moved below that note.

         Jeter was not happy and told her that the letters were no good to pass property because they lacked witness signatures. Oborny sought a second opinion from her own attorney, Don Hoffman. He told her the same. Soon thereafter, Oborny spoke with her friend, Kathy Little, and Kathy told her husband, Steve Little, that the letters were not valid to pass property because they lacked witness signatures.

         On February 25, 2013, several events occurred. Oborny visited the car dealership where Steve was working to have her car serviced. While she was there, Steve called Jeter and told him that he and Kathy had witnessed Field sign the purported codicil at Steve's office on January 22, and had signed it as witnesses. They had not told Oborny because Field had told them he wanted it to be a surprise. Oborny was in contact with Kathy by phone before and after Steve's call to Jeter that day.

         The Littles went to Oborny's house that evening and told her the same news they had told Jeter. Oborny testified this was the first she learned of a witnessed document leaving anything to her.

         The next day, on February 26, 2013, Oborny went to Field's office to look for the document the Littles said they had witnessed and found the purported codicil, dated January 22, 2013, in a file cabinet along with a copy of Field's 2010 will. (We refer to this crucial document as the "purported codicil" because that is what the parties called it during the trial.) The purported codicil appeared to bear Field's signature and the signatures of two witnesses: Steve and Kathy Little. Oborny tried to make copies of that document but shredded them, then took the purported codicil to Emprise Bank where she had copies made. She petitioned for probate of the purported codicil that very day.

         By the time of trial in 2016, the Littles were dead by murder-suicide. Their testimony was admitted via video depositions. The parties tried the case to the district court, which heard testimony from over 30 witnesses and admitted over 300 exhibits.

         The District Court's Findings

         The district court denied Oborny's attempt to admit the purported codicil to probate. The district court found the 2010 will to be valid, thus Field's estate, worth over $20, 000, 000, went nearly all to FHSU. The district court found that the purported codicil was neither typed nor signed by Field and that Oborny or someone at her behest had signed Field's name on it. It also found that the Fields had a common and contractual estate plan, that probate of the purported codicil was barred by common-law undue influence, by statutory undue influence, by promissory estoppel, and by an oral contract to devise property. Oborny appeals that judgment.

         After trial, Oborny moved for attorney fees pursuant to K.S.A. 59-1504. Honorable Jack L. Burr decided that motion, although Honorable William F. Lyle, Jr. had ruled on the merits of the case. Judge Burr granted Oborny's petition for attorney fees in the amount of approximately one million dollars but stayed collection of attorney fees pending appeal. FHSU appeals that judgment.

         Did the District Court Err in Finding the Purported Codicil Was Not Signed by Field?

         We first address the district court's ruling that the purported codicil was signed by Oborny, or someone at her behest, instead of by Field. Oborny contends that the district court's finding that the purported codicil was not signed by Field is tantamount to finding that the purported codicil was forged or fraudulent, that FHSU had the burden to show fraud by clear and convincing evidence, and that the evidence presented at trial fails to meet that standard. FHSU counters that the burden remained at all times on Oborny to show the validity of Field's signature on the purported codicil.

         Oborny's Burden to Make a Prima Facie Case

         K.S.A. 59-606 sets forth the requirements for a properly executed will or purported codicil. In re Estate of Leavey, 41 Kan.App.2d 423, 427, 202 P.3d 99 (2009); In re Estate of Milward, 31 Kan.App.2d 786, 789-90, 73 P.3d 155 (2003). That statute states in relevant part:

"Every will . . . shall be in writing, and signed at the end by the party making the will, or by some other person in the presence and by the express direction of the testator. Such will shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the will." K.S.A. 59-606.

         The rules regarding proper execution and attestation of a will apply with equal force to execution and attestation of codicils. Humphrey v. Wallace, 169 Kan. 58, 62, 216 P.2d 781 (1950). Whether a will satisfies the statutory formalities is a question of law subject to unlimited appellate review. In re Estate of Leavey, 41 Kan.App.2d at 426.

         The proponent of a testamentary instrument has the burden to make a prima facie case that the testator had capacity and that the instrument was duly executed.

"When offering a will to probate, the burden of proof is initially upon the proponent to make a prima facie case showing capacity and due execution of the will. See K.S.A. 2001 Supp. 59-2224; In re Estate of Perkins, 210 Kan. 619, 624, 504 P.2d 564 (1972); Amerine v. Amerine, Executor, 177 Kan. 481, Syl. ¶ 6, 280 P.2d 601 (1955); In re Estate of Peirano, 155 Kan. 48, 49, 122 P.2d 772 (1942). It is well established in Kansas that once it has been shown that a will has been executed in accordance with the formalities required by law, the burden is upon the will contestant and he or she must produce evidence to support his ...

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