In the Matter of the Estate of Roxie A. Moore,
Maureen E. Miles, Kenneth L. Kollenbach, Bart A. Moore, Laurie Moore, and Ryan C. Moore, Appellees. Harvey L. Moore, Appellant,
BY THE COURT
amanuensis is a person who takes dictation or who puts in
writing what another person has dictated.
amanuensis is not, strictly speaking, an agent but acts as an
extension of the principal.
an amanuensis renders a signature for a person, acting in the
presence of such person and at such person's direction,
the signature becomes the signature of the person for whom it
is made, and it has the same validity as if it had been
written by the person giving the direction.
Sufficient parallels exist between the duty of an amanuensis
to transcribe faithfully at the direction of another and the
duty of an agent to act in good faith on behalf of a
principal that the same burden of proof applies to
establishing the authority of either an amanuensis or an
party must prove by a preponderance of clear and convincing
evidence that a writing was carried out by a party acting as
reviewing a case subject to a preponderance of the evidence
standard, the appellate court determines whether, without
reweighing the evidence, the district court's judgment is
supported by substantial evidence when viewed in the light
most favorable to the party prevailing below.
court may properly consider evidence beyond the language of
deeds and official signatures in ascertaining whether deeds
have been effectively executed and acknowledged.
Acknowledging officers and registers of deeds are ministerial
officers who do not act in a judicial capacity, and any
mistakes they make may be explained and corrected by proper
acknowledgment is not a part of a contract between parties
but is only prima facie evidence of the execution of a deed.
testimony of witnesses to the signing of a deed may render an
improperly acknowledged deed valid.
instrument vesting title to property upon the death of the
maker of the instrument is testamentary in character.
When suspicious circumstances lead to questions of the
validity of a testamentary document, courts are to apply a
clear and convincing evidence test.
Courts presume that every adult is fully competent to enter
into a contract until satisfactory proof to the contrary is
Testamentary capacity requires a basic understanding of the
property at issue and how the testator wishes to dispose of
burden is on a party contesting the presumptive validity of a
testamentary document to prove lack of testamentary capacity
through clear and convincing evidence.
of the judgment of the Court of Appeals in 53 Kan.App.2d 667,
390 P.3d 551 (2017).
from Cowley District Court; James T. Pringle, judge.
P. Brewer, of Wilson & Brewer, P.A., of Arkansas City,
argued the cause and was on the briefs for appellant.
D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued
the cause, and Sharon E. Rye, of the same firm, of Wichita,
was with him on the briefs for appellees.
asked here to determine the validity of a transfer-on-death
deed that was signed by a benefiting party at the direction
of the party seeking to make the transfer. The district court
upheld the validity of the deed, the Court of Appeals
affirmed, and this court granted review. We affirm.
Moore was born on August 14, 1909. She married Harvey Moore
Sr. and the two had one child, Harvey Jr. (Harvey). At one
time they owned close to 900 acres of land in different parts
of Kansas. Central to their holdings were 360 acres located
north and west of Cambridge, Kansas, not far from the town of
Burden. Roxie referred to this land, where the principal
residence lay, as the "homeplace."
1969, Harvey married Maureen Miles, and they had two sons,
Bart and Ryan. In the early 1980s, Roxie and Harvey Sr. moved
from the homeplace to Burden in order to be closer to Bart
and Ryan. In 1985, Harvey Sr. died. Roxie continued to live
in Burden, where she had a stroke on August 2, 1991. The
stroke significantly impaired her speech, but she continued
to live in her home.
the 1970s to the end of the 1990s, Harvey engaged in various
business enterprises that did not pan out. To support him,
Roxie provided 440 acres of land she owned east of Cambridge
as security, all of which was lost due to foreclosure around
1995. Roxie also lent Harvey about $80, 000, none of which he
paid back. During that time, Harvey also overdrew from
Roxie's bank account, on which he was a joint account
holder, for his own benefit, and he took some $30, 000 in
certificates of deposit from her safe for his own use,
despite her objections.
December 1992, Harvey and Maureen ended their marriage. After
the divorce, Harvey and his girlfriend moved in with Roxie.
Roxie continued to have a close relationship with Maureen,
however, who would drive her on errands, visit to talk, and
attend to her medical care. In 1998, Roxie opened a new
banking account that did not allow Harvey to have access to
the funds. Harvey nevertheless continued to take checks made
out to Roxie and convert them to his own use. These included
annuity checks, social security checks, and payments from
leases on Roxie's remaining property.
August 2003, Roxie fell while in her home in Burden. She
broke her hip and was unable to return to her house. She
entered an assisted living facility in Winfield. There were
some signs that she was beginning to experience dementia,
although people reported that she remained alert, knew who
family members and friends were, and was able to carry on
conversations with people whom she trusted for years
afterwards. Maureen saw to the financial arrangements for
Roxie's assisted living, which ultimately amount to
approximately $265, 000.
April 29, 2004, Roxie executed a durable power of attorney
naming Maureen as her attorney-in-fact. At around the same
time, Roxie asked Maureen to procure the services of attorney
David Andreas to protect the remaining homeplace property
from Harvey so that Bart and Ryan could someday take
ownership of it. Andreas drafted a transfer-on-death deed
assigning the homeplace property to Maureen on Roxie's
10, 2004, Stephanie Nulick, a secretary and notary public
with Andreas' law office, went to the nursing home where
Roxie was living. Roxie was lying in bed. In the presence of
Nulick and five other people, Roxie read the
transfer-on-death deed; it was also read to her. She checked
to make sure that the property description was correct. Ryan
asked her if she was sure she wanted to give him and his
brother the property on her death, and she said she was. She
said that she was in too much pain to sit up and sign the
document, and she asked Maureen to sign for her, saying,
"Maureen, I want you to sign it." Maureen asked if
she was certain that she wanted the document signed in that
fashion, and Roxie said yes. Maureen then signed Roxie's
name, adding a notation that she was signing as a power of
died on September 15, 2009. On November 7, 2012, Maureen and
her husband executed a warranty deed conveying the homeplace
property to Bart and Ryan.
11, 2014, Harvey filed a petition for determination of
descent asserting that Roxie's estate consisted of the
real estate in Cowley County. Bart and Ryan filed a response
asserting that the property had passed to them under the
transfer-on-death deed and therefore was not part of
Roxie's estate. In January 2015, Harvey filed a motion
for summary judgment. Respondents Maureen; her husband,
Kenneth Kollenbach; Bart; his wife, Laurie Moore; and Ryan
filed a response and a counter motion for summary judgment.
district court initially ruled in Harvey's favor,
granting him summary judgment and title to the property. This
decision was based on the conclusion that an attorney-in-fact
may not use the power of attorney to benefit herself. The
respondents filed a motion to reconsider, arguing that
Maureen signed the deed not in her capacity as
attorney-in-fact, but as a mere amanuensis-one whose agency
relationship with a principal is limited to accurately
transcribing words or signatures at the direction of the
district court granted the respondents' motion on the
amanuensis theory and set the matter for trial. Following a
full evidentiary hearing, the court granted judgment in favor
of the respondents. The Court of Appeals affirmed the
district court in In re Estate of Moore, 53
Kan.App.2d 667, 390 P.3d 551 (2017). This court granted
district court deemed the transfer-on-death deed to
constitute an enforceable transfer of Roxie's real
property to Maureen. Harvey challenges various determinations
that the district court made in reaching its judgment. In
particular, he urges this court to reject the theory that an
amanuensis may sign a transfer-on-death deed on behalf of the
property owner; he asks this court to hold that the deed was
invalid because it was improperly acknowledged; he challenges
the burden of proof applied to overcoming a presumption of
undue influence; and he argues that the district court placed
the incorrect burden on him to show that Roxie lacked
testamentary capacity. We will consider each of these issues
of Signature by Amanuensis
signed Roxie's name on the transfer-on-death deed and
then added: "by Maureen Miles, Power of Atty." In
the district court, as well as in the appellate courts, the
respondents did not assert that the power-of-attorney
designation validated the deed. Instead, they maintained that
Maureen acted purely as an amanuensis, and the
power-of-attorney wording was nothing more than surplusage.
We therefore will not address whether Maureen could lawfully
have signed in her capacity as an attorney-in-fact and will
instead consider whether she functioned as an effective
amanuensis is one who takes dictation or who writes down what
another has dictated. See Black's Law Dictionary 99 (11th
ed. 2019). "'Where a person's name is signed for
him at his direction and in his presence by another, the
signature becomes his own, and is sufficient to give the same
validity to an instrument as though written by the person
himself.'" Gaspard v. Iberia Bank,
953 So.2d 997, 999 (La. Ct. App. 2007). This "amanuensis
rule" is "so uniformly recognized" that the
Nevada Supreme Court, in upholding the validity of a land
conveyance executed by an amanuensis, saw no purpose in
citing the treatises and "hundreds of cases"
supporting its application. Lukey v. Smith, 77 Nev.
402, 405-06, 365 P.2d 487 (1961).
practice of using amanuenses has a rich history in Kansas. In
Stanhope v. Rural High-school District, 110 Kan.
739, 742, 205 P. 648 (1922), for example, this court held
that, when a signature is made for a person by the hand of
another, acting in the presence of such person and at such
person's direction, the signature becomes the signature
of the person for whom it is made, and it has the same
validity as if it had been written by the person giving the
direction. See State v. Uhls, 121 Kan. 587, 589, 249
P. 597 (1926) (crediting the testimony of the defendant's
amanuensis); Filley v. Insurance Co., 93 Kan. 193,
205, 144 P. 257 (1914); Insurance Co. v.
Bank, 60 Kan. 630, 637, 57 P. 524 (1899) (insurance
agent acted as valid amanuensis for purchaser in writing down
answers to questions on application form); Treadway v.
Ryan and others, 3 Kan. 437, 444 (1866).
Schnee v. Schnee, 61 Kan. 643, 648-49, 60 P. 738
(1900), a witness was unable to write so he asked another
person to sign his name. In upholding the validity of the
will, this court noted that little importance should be given
to the physical act of signing:
"Some of the courts have given what we deem to be undue
importance to the physical participation in the act of
signing, and have ruled that witnesses must do some manual
act towards making the signature. The more satisfactory
authorities, as well as reasons, sustain the view that the
name of an attesting witness who is unable to write may be
written by another at his request, in his presence and in the
presence of the testator. As stated in Lord v. Lord,
58 N.H. 7');">58 N.H. 7 [(1876)], 'to require a person, whose name is
to be written in a testamentary transaction, to hold or to
touch the pen, or to do anything which the law does not
require him to do in other cases of attestation, seems to
establish a distinction without a difference.' [Citations
K.S.A. 59-3501 sets out the procedure for creating and
validating a transfer-on-death deed, including a requirement
of a signature by the owner of the interest. To be sure,
K.S.A. 59-3501(a) does not expressly allow signature by
another, but this does not defeat permitting a directed
signature by an amanuensis. As Bogert's Trusts and
Trustees § 86 (2d. ed. rev. 1984) notes, the one who has
the power to make the writing which renders the instrument
enforceable will usually sign or subscribe himself,
"but this is not necessary. He may permit another in his
presence to sign . . . thus allowing the other to act as an
amanuensis, and this will be sufficient. Many statutes also
provide for the signing by an agent, and, even where this
is not expressly stipulated, it is doubtless proper if
the agent is in fact authorized to perform this act. . . .
The signature of the agent alone will satisfy the
Statute." (Emphasis added.)
59-3501(a) states that a transfer-on-death interest may
effectively be created "by recording a deed signed by
the record owner of such interest . . . ." We do not
read this statutory language to remove the capacity of a
property owner to sign away the interest through an agent or
amanuensis. K.S.A. 58-2209 states that
"[a]ll deeds . . . shall be subscribed
by the party granting the same, or by the party's
lawful agent or attorney . . . ." (Emphases added.)
The phrase "all deeds" certainly includes
transfer-on-death deeds, and we will not give a contradictory
construction to the transfer-on-death statute, in light of
the extensive and long history of treating a signature by an
amanuensis as legally equivalent to a signature by the party
directing that the signature be rendered.
the power-of-attorney statute explicitly permits an agent to
designate beneficiaries who will receive property on the
principal's death. K.S.A. 2018 Supp. 58-654(f)(6). The
Legislature has thus expressed a clear intention that
transfer-on-death deeds may be signed by parties who are not
the actual property owners. This intention is consistent with
the law relating to signatures for other forms of property
conveyances. Our understanding of the legislative intention
is consistent with the long and widely held law of
amanuensis: that the party acting ...