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In re Estate of Oroke

Supreme Court of Kansas

August 2, 2019

In the Matter of the Estate of Ray V. Oroke

         SYLLABUS BY THE COURT

         1. In order to commence an action in probate regarding the contents of a will, a petitioner must file the will with the court and commence the action within six months after the death of the testator. This functions as a statute of limitations.

         2. K.S.A. 59-618 provides for an exception to the six-month limitation period when someone who knows where a will is located knowingly withholds it from the court.

         3. A district court clerk has a duty under Kansas statutes and a Kansas Supreme Court rule to maintain and make available wills that have been duly filed with the clerk of the district court.

         4. A unique circumstances test requires both a demonstration of good faith by the party seeking an enlargement of time and a reasonable basis for noncompliance within the time specified by the rules. The unique circumstances doctrine is an elastic concept that is appropriate to prevent a party from suffering prejudice as a result of a mistake by the clerk of the district court.

         5. The application of the unique circumstances doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error. It is limited in application to situations in which the error was by a nonparty and the parties did not contribute to creating the error. The unique circumstances doctrine is still viable, in the appropriate situation, to prevent a cause of action from being barred by the statute of limitations.

         6. When a district court clerk is entrusted with the custodianship of a will but is unable to produce the will in time for a party to file a timely petition to probate the will, the statute of limitations may be tolled so long as the rights of the parties are not substantially impaired.

         7. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. This is not a modification of In re Estate of Strader, 301 Kan. 50, 339 P.3d 769 (2014), but a holding limited to the unique and rare circumstances in this case of a clerk of the district court not following a duty imposed by law.

         8. Kansas Supreme Court Rule 7.07 (2019 Kan. S.Ct. R. 50) sets forth three requirements this court must consider when attorney fees are sought on appeal. First, this court may award attorney fees for services on appeal if the district court had authority to award attorney fees. Under the facts of this case, authority to award attorney fees is found under K.S.A. 59-1504, which permits necessary expenses and attorney compensation from the estate when any person named in a will seeks to admit it to probate, whether successful or not.

         9. Second, a motion for attorney fees on appeal must be made under Supreme Court Rule 5.01 (2019 Kan. S.Ct. R. 30) and be filed no later than 14 days after oral argument or 14 days after the day argument is waived or the date of the letter assigning the case to a nonargument calendar, whichever is later. A motion filed after a Kansas Supreme Court oral argument is not timely filed for consideration of the fees for services while the appeal was pending in the Court of Appeals.

         10. Third, a movant must attach an affidavit to the motion for attorney fees specifying: (A) the nature and extent of the services rendered; (B) the time expended on the appeal; and (C) the factors considered in determining the reasonableness of the fee, which are set forth in Kansas Rule of Professional Conduct 1.5 (2019 Kan. S.Ct. R. 300).

         Review of the judgment of the Court of Appeals in an unpublished opinion filed March 31, 2017.

          Appeal from Jefferson District Court; Gary L. Nafziger, judge.

          Michael Jilka, of Nichols Jilka LLP, of Lawrence, argued the cause and was on the briefs for appellant Karen Barney.

          Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, argued the cause, and Bruce H. Hanson, of Oskaloosa, was with him on the briefs for appellee Donna Fairbanks.

          MALONE, J.

         A testator deposited his original will and a codicil with the probate court of his home county as permitted by statute. The statute mandated the district court to retain the will during the lifetime of the testator and to open the will publicly and retain the same upon being notified of the testator's death. K.S.A. 59-620 (Furse 1994).

         A few weeks after the testator's death, heirs tried to locate the will at the courthouse. The clerk of the court was unable to find it and informed the heirs that the will was not in the custody of the court. The heirs searched for the will at other locations to no avail. Eventually, the testator's daughter filed an intestate probate proceeding. While the intestate proceeding was pending, and after the limitation period for petitioning a will for probate had passed, the clerk of the court located the will and codicil among the files of the probate court.

         The testator's stepdaughter filed a separate petition to probate the will. The district court consolidated the two probate proceedings and admitted the will to probate. The testator's daughter appealed. The Court of Appeals reversed the ruling of the district court, citing statutory language limiting the circumstances that toll the limitation period and caselaw by this court interpreting these provisions. This court granted the stepdaughter's petition for review.

         After oral argument before this court, the stepdaughter moved for appellate attorney fees to be paid from the estate.

         The primary question before this court is whether the will in the authorized custody of the district court, but not found until after the statute of limitations had expired, should be admitted to probate. We ultimately hold that it should be admitted to probate. We also grant, in part, the motion for attorney fees.

         Factual and Procedural Background

         Ray V. Oroke was a resident of Jefferson County, Kansas. During the relevant time period, K.S.A. 59-620 (Furse 1994) permitted a party to deposit a will in the district court of the county where the testator resided upon the payment of a deposit fee of one dollar. The statute required the court to give a certificate of the deposit and to "retain such will." After being notified of the testator's death, the court was required to open the will publicly and retain the same. K.S.A. 59-620 (Furse 1994) was repealed in 1995. L. 1995, ch. 103, § 2.

         On July 14, 1954, Oroke executed a Last Will and Testament and deposited it with the Jefferson County probate judge as authorized by K.S.A. 59-620 (Furse 1994). He did this on the same day he executed it. The will was placed in an envelope bearing Oroke's full name and the name of his executor and was file-marked "No. 153."

         On November 17, 1988, Oroke signed a codicil to the will naming new executors. His attorney filed it with the Jefferson County District Court on the same day it was signed and witnessed. The will and codicil were placed in an envelope bearing Oroke's full name and the names of his new coexecutors and was again file-marked "No. 153."

         Karen Barney, Oroke's daughter, had discussed a will with her father several times and thought it was likely that a will existed somewhere. Kevin Barney (Karen's son and Oroke's grandson) also discussed a will with Oroke and was told that he and Donna Fairbanks (Oroke's stepdaughter and Karen's stepsister) were to be coexecutors. Oroke told Donna that a copy of the will was in ...


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