KSA 59-618: what does it take to be an innocent beneficiary?

KSA 59-617 No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided.

KSA 59-617 Requires the filing of the Petition within 6 months from the date a testator’s death See Matter of Estate of Rickabaugh, 305 Kan. 921 (2017). Topics for another day: Does not the Rickabaugh decision suggest that the original will does not need to be filed within six months, so long as the petition is filed within 6 months of the date of death? If so, when must the original be filed?

KSA 59-618 In re Estate of Strader, 301 Kan. 50, 56 (2014): 59-618 “is a savings provision that contains the ONLY EXCEPTION to the general 6-month rule contained in KSA 59-617.”

KSA 59-618 Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it, … .

First Sentence – Easy Enough, Right? 3 Parts of the First Sentence:

First Sentence – Part 1 Any person who a. has possession of the will of a testator dying a resident of this state, OR b. has knowledge of such will and access to it for the purpose of probate, …

First Sentence – Part 1 “ACCESS TO IT”: what does that mean? “ACCESS” - definition: “ability or permission to approach, … or use” Random House Dictionary of the English Language (Uanbridged Ed. 1973) Any other definition plausible?

First Sentence – Part 2 AND a. knowingly withholds it from the court … for more than six months after the death of the testator

First Sentence – Part 3 shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will AND are without knowledge of it and access to it. If pour over will, do beneficiaries of trust fit in here?

Second Sentence Begins Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it, … .

Second Sentence Issues To what does “such will” refer? Who can be considered an “innocent beneficiary?”

“Such Will …” “Such will …” Supreme Court in Strader, p.57: When a will may be admitted to probate under KSA 59-618 AFTER the 6-month time limit of KSA 59-617: Turns on the use of the word “such” at the beginning of the second sentence.

“Such Will …” “Such will …” refers to the will just mentioned in the first sentence: “a will that has been knowingly withheld from probate for more than 6 months after the death of a testator by”

“Such Will …” “a person who has possession of the will OR knowledge of and access to it.”

“Such Will …” Can “a person who has” also be added in front of “knowledge of and access to it?” LOGICALLY – the answer to that question is YES, right? IF SO, does that mean that a person with knowledge of the will and access to it, but makes no effort to obtain the will and seek to admit/preserve the will in court within the first 6 months after death, can be an innocent beneficiary in the second sentence?

“Innocent Beneficiary” In re Estate of Seth, 40 Kan.App.2d 824, 828 (2008) The first sentence of KSA 59-618 serves to make a person who “knowingly withholds” a will liable to beneficiaries: “who do not have possession of the will and are without knowledge of it and access to it.”

“Innocent Beneficiary” SO, an innocent beneficiary is, according to Seth and Strader one that: 1. does not have possession of the will and 2a. is without knowledge of will And 2b. is without access to will, during the 6 months period after testator’s death. Can “OR” also fit between 2a and 2b?

When Will not admissible? According to Court in Strader: A last will and testament that has not been “knowingly withheld” CANNOT be admitted after the 6 month time limit of 59-617 expires. Notice the double negative, here

In re Estate of Strader (2014) – Basic Facts BJS died with a will, leaving 5 kids. The will left oil well business to 3 sons; rest of his property divided equally amongst all 5. Family could not find even a copy of the will after investigation that included asking law firm/scrivener if it possessed the original but after a search law firm reported it did not have the original. Intestate estate opened. Over 4 years after death, same law firm found the original will in one of its lock boxes at the firm. Supreme Court concluded – will not “knowingly withheld.”

In re Estate of Seth (2008) – Basic Facts Marvel Seth died, leaving a son, daughter and 3 children of deceased son. The will left a farm to his one living son, Laryl. 2 months after death, Laryl and daughter found will and took it to an attorney to have will admitted. During next 4 months, attorney assured Laryl he was taking care of matter and would get will admitted on a number of occasions. 6 months expired without attorney getting petition to admit will filed. Laryl retrieved original will, took it to another attorney, who filed the petition and sought its admission. District Court concluded and COA affirmed admission of the will per 59-618.

Additional questions for another day regarding the Second Sentence of 59-618: What happens if the “innocent beneficiary” never learns of the existence of “such will?” How long does an innocent beneficiary have to petition to admit “such will?”

Scenario for Discussion (Basics) Attorney and scrivener of the Last Will and Testament keeps possession of the will after testator and witnesses properly execute the document. Testator dies. Original of the Last Will and Testament not filed with the Court per KSA 59-618a or 59-621 within six months of the date of death.

Who is liable in Scenario? EASY, right? Attorney and scrivener, who possesses original will, is liable What if will prepared outside Kansas and attorney/scrivener is wholly unaware of Kansas’ requirement to file will within 6 months of date of death? Still liable? Is heir at law liable if knows who possesses will and has access to it within six months of date of death?

Who is “Innocent Beneficiary”? Adding Facts: Revocable trust of the testator is the sole beneficiary of the pour over will. There are two co-trustees: surviving spouse and bank. Can Trust be an Innocent Beneficiary, if:

Who is “Innocent Beneficiary”? Surviving spouse knows of existence of will and who possesses will, but bank does not? Is that enough information or do you need more facts to answer question? What if know, surviving spouse does not ask to take possession of will, even though attorney/scrivener indicates he would have given the will to any person identified as a trustee, heir at law or beneficiary under the trust?

Who is “Innocent Beneficiary”? Both surviving spouse and bank know of existence of will and who possesses will within 6 months after date of death? Is that enough information or do you need more facts to answer question? What if also know: neither co-trustee contacts possessor of will and asks to take possession nor advise possessor of will of his obligation to have will filed within 6 months? What if also know: attorney/scrivener indicates he would have given the will to any person identified as a trustee, heir at law or beneficiary under the trust?

Who is “Innocent Beneficiary”? More than 6 months after death of decedent -- Beneficiary of the trust becomes knowledgeable of will’s existence, who possesses it and has access to it – Can that beneficiary be an innocent beneficiary?

Follow Up – In re Estate of Seth District Court noted that first attorney Laryl went to was essentially destitute, with no legal malpractice insurance. District Court also stated that the first attorney acted in a “grossly negligent manner” and said the question is should Laryl be held responsible for the attorney’s failings? DCt concluded Laryl had knowledge of will but could not file it within 6 months and therefore, was an innocent beneficiary.

Follow Up – In re Estate of Seth COA stated an innocent beneficiary means a beneficiary without fault for the knowing withholding of a will from probate during the 6 months after death. COA stated Laryl did not have both knowledge of will and access to will simultaneously until more than 6 months after date of death when first attorney told him it was now too late to file the will.

Follow Up – In re Estate of Strader In its concluding there was no “knowing withholding,” the Supreme Court mentioned the Seth opinion. “And to the extent [party]’s counsel has interpreted the Seth opinion as a softening of this ‘knowingly withholding’ requirement, e.g., a careless withholding, that interpretation is also specifically disapproved.” So, while the holding in Seth was not “specifically disapproved” nor overruled, what is left of the Seth decision after the Strader decision?

What is left of Seth after Strader? In Seth, the district court stated in its conclusions of law: “If equity should ever govern a situation, this is the case.” Can equity still play a role in the Court’s analysis of whether a last will and testament can be admitted when the original will nor a petition for admission of the will is filed within 6 months of the date of death?