In the Matter of the Estate of Earl O. Field.
BY THE COURT
Whether a will satisfies the statutory formalities is a
question of law subject to unlimited appellate review.
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.
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.
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.
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.
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.
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.
witness' videotaped testimony may be impeached or
discredited by means other than a specific fact witness, such
as by the totality of the circumstances.
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
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.
review a district court's decision to award attorney fees
under K.S.A. 59-1504 for an abuse of discretion.
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.
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.
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.
from Ellis District Court; William F. Lyle Jr. and Jack L.
F. Hoffman and Melvin J. Sauer Jr., of Dreiling, Bieker &
Hoffman LLP, of Hays, for appellant Wanda Oborny.
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.
Gardner, P.J., Buser and Atcheson, JJ.
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
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.
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.
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.
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'
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
District Court's Findings
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
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.
District Court Err in Finding the Purported Codicil Was Not
Signed by Field?
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.
Burden to Make a Prima Facie Case
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.
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.
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 ...