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In re Estate of Moore

Supreme Court of Kansas

September 6, 2019

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,


         1. An amanuensis is a person who takes dictation or who puts in writing what another person has dictated.

         2. An amanuensis is not, strictly speaking, an agent but acts as an extension of the principal.

         3. When 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.

         4. 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 agent.

         5. A party must prove by a preponderance of clear and convincing evidence that a writing was carried out by a party acting as an amanuensis.

         6. When 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.

         7. A court may properly consider evidence beyond the language of deeds and official signatures in ascertaining whether deeds have been effectively executed and acknowledged.

         8. 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 proof.

         9. An acknowledgment is not a part of a contract between parties but is only prima facie evidence of the execution of a deed.

         10. The testimony of witnesses to the signing of a deed may render an improperly acknowledged deed valid.

         11. An instrument vesting title to property upon the death of the maker of the instrument is testamentary in character.

         12. When suspicious circumstances lead to questions of the validity of a testamentary document, courts are to apply a clear and convincing evidence test.

         13. Courts presume that every adult is fully competent to enter into a contract until satisfactory proof to the contrary is presented.

         14. Testamentary capacity requires a basic understanding of the property at issue and how the testator wishes to dispose of it.

         15. The burden is on a party contesting the presumptive validity of a testamentary document to prove lack of testamentary capacity through clear and convincing evidence.

         Review of the judgment of the Court of Appeals in 53 Kan.App.2d 667, 390 P.3d 551 (2017).

          Appeal from Cowley District Court; James T. Pringle, judge.

          Jason P. Brewer, of Wilson & Brewer, P.A., of Arkansas City, argued the cause and was on the briefs for appellant.

          James 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.


          Rosen, J.

         We are 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.


         Roxie 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."

         In 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.

         From 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.

         In 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.

         In 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.

         On 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 death.

         On May 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 attorney.

         Roxie 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.

         On June 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.

         The 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 principal.

         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 review.


         The 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 in turn.

         Validity of Signature by Amanuensis

         Maureen 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.

         An 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).

         The 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).

         In 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 omitted.]"

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.)

         K.S.A. 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.

         Furthermore, 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 ...

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