In the Matter of the Estate of Ray V. Oroke
BY THE COURT
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.
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.
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
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
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.
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.
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.
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.
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
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).
of the judgment of the Court of Appeals in an unpublished
opinion filed March 31, 2017.
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.
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.
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).
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.
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.
oral argument before this court, the stepdaughter moved for
appellate attorney fees to be paid from the estate.
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
and Procedural Background
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.
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."
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."
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