Opinion
110,265.
10-17-2014
In the Matter of the ESTATE OF Dorothy B. CULVER, Deceased.
Dan E. Turner and Phillip L. Turner, of Turner and Turner Law Office, of Topeka, for appellants Lloyd Rissen and William Rissen. Daniel W. Crow, of Alderson, Alderson, Weiler, Conklin, Burghart & Crow, L.L.C., of Topeka, for appellee Brenda Eenhuis.
Dan E. Turner and Phillip L. Turner, of Turner and Turner Law Office, of Topeka, for appellants Lloyd Rissen and William Rissen.
Daniel W. Crow, of Alderson, Alderson, Weiler, Conklin, Burghart & Crow, L.L.C., of Topeka, for appellee Brenda Eenhuis.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Dorothy B. Culver died testate on September 2, 2011. She had executed her final will on December 17, 2010, in which she left a large portion of her property to Brenda Eenhuis. As the named executrix in that will, Eenhuis filed a petition for probate of the will. Culver had previously executed two wills, one on June 23, 1986, and another on October 12, 2010. Lloyd and William Rissen, Culver's nephews, filed written defenses to the petition to probate the most recent will and asked the district court to admit the 1986 will to probate. They argued several points relating to the December 17, 2010 will. They can be summarized as follows: Eenhuis exerted undue influence over Culver, Culver lacked the requisite testamentary capacity, the will lacked the formal requirements necessary for its validity, and a contract existed which required Culver to transfer her real estate to the Rissens upon her death. The district court conducted a lengthy bench trial following which it admitted the most recent will and denied both the admission of the 1986 will and the Rissens' claims against Culver's estate.
On appeal, the Rissens list eight issues in their brief which essentially boil down to the contention that the district erred in ruling against them on their arguments. We conclude that substantial competent evidence supports the district court's factual findings and its legal conclusions were correct. We affirm the decision.
Facts
Our statement of the facts comes primarily from the evidence the district court heard at the bench trial. We begin in 1986 when Clyde Burns, an attorney, prepared a will for Culver. Culver had never married and had no children. She left her entire estate to her nephews, Lloyd and William Rissen. The will named William to serve as executor. Part of her estate included land in Osage County in which the Rissens had an interest and a life estate. Culver lived alone in a farm house on the land until her death. She had severely impaired vision due to macular degeneration which rendered her unable to drive.
Culver and Eenhuis' friendship began in 1992 and grew closer through the years. In the last 5 years of Culver's life, Eenhuis often provided Culver's transportation. Culver attended various functions with Eenhuis' family, and Culver told Mark Burghart, her attorney since 2010, that she loved Eenhuis like a daughter. During these last 5 years, Culver's relationship with the Rissens became strained. She felt threatened by them because she thought they were taking advantage of her in dealings pertaining to the farm, and Culver also did not care for Lloyd's companion, Mary.
Joyce Pierce testified as to her relationship with Culver. They were neighbors in Lyndon. Pierce and Culver began doing things together in 2007 after Pierce's husband passed away. Pierce took Culver on errands, to card games, and even to Pierce's grandchildren's activities. Pierce would help Culver write checks and pay bills. As early as 2009, Culver approached Pierce to serve as her executrix, but Pierce refused. Pierce testified her relationship with Culver soured when Pierce found bugs in cookies that Culver had brought to a card party, and they did not see much of each other after that.
Burns testified Culver came to him in 2010 seeking to make changes to her will because she was having some problems in her relationship with the Rissens. Eenhuis was not with Culver when she talked with Burns. Burns told Culver that if there was going to be a problem with her nephews, he perceived a conflict because of his close relationship with the families. He suggested Culver hire someone from the Alderson law firm in Topeka.
Culver then hired Burghart from the Alderson firm to handle her estate matters. On September 2, 2010, Culver executed a durable power of attorney for business and property decisions and signed a durable power of attorney for health care decisions. Both documents gave Eenhuis power of attorney to make decisions upon Culver's disability or incapacity.
Upon request from the president of the Lyndon State Bank, Eenhuis presented the business power of attorney to the bank. Culver made several changes to her payable on death accounts at the bank. Bank employees, Jenny Rogers and Kathy Fannin, testified they considered Culver to be competent and that she knew what she wanted to do with her money. The employees required Culver's signature for all changes, including changes to the accounts which placed Eenhuis' name on the account as Culver's power of attorney.
When Culver met with Burghart, she explained the dissatisfaction with her current will and her proposed estate plan. She provided Burghart with information about her bank accounts and how they should be distributed upon her death. Culver executed a new will on October 12, 2010, revoking all prior wills and naming Eenhuis as both the executrix and a beneficiary. In that will, Culver gave Eenhuis her house plus 20 acres and the remainder to the Rissens. Culver also gave the residue of her estate to the Rissens.
Several days after Culver signed the October 2010 will, Burghart became concerned with the legal ownership of the property mentioned in Culver's 1986 will. He ordered a title search to clarify Culver's exact ownership. The title report confirmed that Culver owned part of the real estate in fee simple and she had just a life estate in half of it. Just a couple months later, Culver informed Burghart that she wanted Eenhuis to receive her entire probate estate including her interest in her land. Burghart testified he had several conversation with Culver discussing how any will that accomplished this would be a drastic change from her prior wills and would cut out the Rissens as beneficiaries and give everything to Eenhuis. They talked about how the property had been in the family for many years and now it would all be going to Eenhuis.
Lloyd testified he and William were coowners of Culver's property and they farmed the land on a 2/3 and 1/3 crop share basis and paid pasture rent to Culver. Lloyd testified they had a verbal arrangement with Culver's brother Eddie, their uncle, before he died and it just continued after his death. Lloyd stated the property was willed to Culver and then it was supposed to go to William and Lloyd. Lloyd testified Culver never paid any expenses.
On December 17, 2010, Burghart again spoke with Culver at great length concerning the changes made in the new will and clarified she wanted all her probate estate to go to Eenhuis. On that date she executed her final will and testament giving her entire estate to Eenhuis. With Culver's consent, Burghart audio recorded the execution of this will. Burghart and Barbara Baker, a legal secretary in the Alderson office, witnessed Culvers signing of the will. Christine Riffel, another legal secretary in the Alderson firm, notarized all the signatures. Both the October and December 2010 wills contained in terrorem clauses whereby anyone who contested the will forfeited any interest in property.
Culver distributed her nonprobate assets as follow:
| Lyndon State Bank (Payable on Death Beneficiaries) | |
|---|---|
| $29,517.94 | Eenhuis |
| $20,333.82 | Lyndon United Methodist Church |
| $3,646.67 | Helping Hands Humane Society |
| $51,724.50 | William and Lloyd Rissen |
| $1,401.03 | Lyndon United Methodist Church |
| $40,000 | Eenhuis |
| $17,371.85 | Helping Hands Humane Society |
| $17,371.85 | Osage County Council on Aging |
| $29,167.61 | ”Estate of Dorothy B. Culver” |
| Capitol Federal (Payable on Death Beneficiaries) | |
| $3,978.53 | William and Lloyd Rissen |
| $1,643.94 | Jones Fund Foundation |
| $1,862.06 | Jones Funds Foundation |
| $10,008.59 | ”Estate of Dorothy B. Culver” |
| $20,020.95 | ”Estate of Dorothy B. Culver” |
Culver died on September 2, 2011. One of the Rissens found her dead in a pasture late in the evening. She apparently died from heat related causes. On November 29, 2011, Eenhuis, as executrix, filed a petition for probate of Culver's final will. The Rissens filed an objection to the petition, arguing Eenhuis unduly influenced Culver in the making that will, Eenhuis improperly withdrew funds from Culver, Culver lacked testamentary capacity, and Eenhuis had some involvement in Culver's death. The district court held a 3–day bench trial. It ultimately concluded:
“Evidence and testimony at trial establishes that Dorothy Culver's December 17, 2010 will execution was done with proper testamentary formalities, that at the time Dorothy possessed proper testamentary capacity and that Dorothy was not subject to undue influence under the law. The evidence failed to establish that the 1986 will amounted to an oral contact of any sort and therefore on December 17, 2010, Dorothy Culver was legally empowered to devise and bequest her real and personal properly as she wished.”
Undue Influence
The Rissens first argue the district court applied the incorrect burden of proof on the issue of whether Eenhuis exerted undue influence. They first argue that because Culver and Eenhuis were clearly in a confidential relationship, that fact alone shifted the burden to Eenhuis to prove that she had not exerted undue influence on Culver in connection with the will in question. Eenhuis does not appear to challenge that a confidential relationship, in fact, existed. Nevertheless, she argues the burden on this issue remained with the Rissens.
As we stated, the district court found that Culver had the proper testamentary capacity and she executed the December 17, 2010 will with proper testamentary formalities. (We will address the Rissens' arguments on these points later in this opinion.) As to the allegations of undue influence, the court specifically outlined the burdens of proof it was applying in the case. It stated that once proper execution of the will was demonstrated, the burden shifted to the Rissens to prove by clear and convincing evidence that Eenhuis exercised undue influence over Culver in the creation of her will. The trial court discussed the Kansas Supreme Court's definition of undue influence in In re Estate of Hall, 165 Kan. 465, Syl. ¶ 8, 195 P.2d 612 (1948), and also that desire, motive, and opportunity are not enough to establish undue influence. In finding there was no undue influence, the court stated the two-part test to establish undue influence: “First, there must be a confidential relationship; and secondly, there is the requirement that the making of the will must be surrounded by suspicious circumstances.”
The Rissens rely on the unpublished case of In re Estate of Miller, No. 107,134, 2012 WL 6734656, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 245 (2013), for authority that once the court found Eenhuis had a confidential relationship with Culver, that caused the burden to shift to Eenhuis to prove she did not exercise undue influence over Culver. The Rissens' argument lacks merit.
First, unpublished opinions in Kansas carry no precedential authority, and they are generally “not binding precedent.” See Supreme Court Rule 7.04(g)(2)(A) (2013 Kan. Ct. R. Annot. 61); State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). Second, no cases have relied upon Miller for this alleged point of law. Third, the Miller court provided the following authority to support its statement:
“But if the person alleged to have exerted the improper influence had a confidential or fiduciary relationship with the maker of the will, the court will presume undue influence, thereby shifting the burden of proof to the proponent of the will.... See In re Estate of Farr, 274 Kan. [51] at 70–71 [, 49 P.3d 415 (2002) ].” 2012 WL 6734656, at *3.
This language, however, is mere dicta. The Miller court found no confidential relationship existed and never addressed the issue of whether, on that basis alone, undue influence existed. More importantly, our Supreme Court in Farr had actually set forth a two-part undue influence test that required both a confidential relationship and suspicious circumstances before the burden shifts to the proponent of the will. 274 Kan. at 58–59, 49 P.3d 415.
Here, the district court applied the correct two-part standard in finding that the Rissens had the burden of proof to establish undue influence and that burden never shifted to Eenhuis.
The Rissens also raise as a separate issue another argument about the burden of proof on the undue influence issue. They argue that Eenhuis' use of the power of attorney “which contained the language stating Dorothy Culver lacked testamentary capacity the level of evidence required to show undue influence is much less.” They cite no legal authority for their argument.
Undue influence must “amount to such coercion, compulsion and restraint as to destroy the testator's free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercise his own.” Hall, 165 Kan. at 470, 195 P.2d 612 ; see In re Estate of Carothers, 220 Kan. 437, 443, 552 P.2d 1354 (1976) ; Heck v. Archer, 23 Kan.App.2d 57, 62, 927 P.2d 495 (1996). “[H]uman desire, motive and opportunity to exercise such influence will not alone authorize the inference that undue influence was in fact exercised. Neither will suspicion or the possibility of their having induced the making of the will favorable to them be enough to justify a finding of undue influence.” Klose v. Collins, 137 Kan. 321, 326, 20 P.2d 494 (1933). Legitimate influence is not improper. Influence obtained by kindness and affection will not be regarded as undue. In re Estate of Ziegelmeier, 224 Kan. 617, 622, 585 P.2d 974 (1978). Undue influence, in order to overcome a testamentary act, must directly affect the testamentary act itself. In re Estate of Bennett, 19 Kan.App.2d 154, 163, 865 P.2d 1062 (1993), rev. denied 254 Kan. 1007 (1994).
In our review of the district court's ruling on the undue influence issue, we first reiterate that the district court applied the correct burden of proof which required the Rissens to prove undue influence by clear, satisfactory, and convincing evidence. The court then found the Rissens did not meet that burden. Such a finding amounts to a negative finding.
“A negative finding indicates that the party with the burden of proof failed to sustain that burden. An appellate court will not disturb a negative finding, absent proof of an arbitrary disregard of undisputed evidence or some extrinsic circumstances such as bias, passion, or prejudice.” Farr, 274 Kan. 51, Syl. ¶ 9, 49 P.3d 415.
In our review of the record, we are hard pressed to find coercion, compulsion, and restraint which destroyed Culver's free will. On the contrary, the record shows Culver knew who would benefit from her property when she died and what property they would receive. The evidence supports the district court's finding that Culver cared for Eenhuis and wanted to repay her for their relationship. Culver also gave a substantial part of her nonprobate assets to charities and other individuals, including $50,000 to the Rissens. We will not overturn the trial court's finding that the Rissens failed to meet their burden to prove Eenhuis exerted undue influence since the record supports that conclusion.
The Testamentary Capacity of Dorothy Culver
It appears that the Rissens' main issue on appeal is whether Culver had the requisite testamentary capacity to execute a will on December 17, 2010. They argue that somehow the general durable power of attorney she previously had executed legally precluded Culver from executing the wills on October 10, 2010, and December 17, 2010, because the power of attorney and its use indicated Culver lacked testamentary capacity at the time. They argue that, as a result, the trial court erred in the admission of the latter will to probate. Alternatively, the Rissens argue the district court erroneously required a clear and convincing standard of proof that Culver lacked testamentary capacity when the level of proof should have been substantially less because of the statements contained in the power of attorney. They provide no persuasive authority for this position. Again, their argument fails.
In addressing the issue of testamentary capacity, our Supreme Court in Farr, 274 Kan. 58–59, stated that when offering a will to probate, the burden of proof is initially upon the proponent to make a prima facie case showing capacity and due execution of the will. The court stated that after the proponent of a will establishes a prima facie case of capacity, the burden shifts to the opponent of the will to prove the testator's incapacity by clear, satisfactory, and convincing evidence. See 274 Kan. at 59, 63–64, 49 P.3d 415. The Farr court further stated:
“In Kansas, it is well settled that in order for the testator to have testamentary capacity, the testator, at the time the will is executed, must know and understand the nature and extent of his or her property and have an intelligent understanding of the disposition he or she desires to make of it, realize who his or her relatives are and who the natural objects of his or her bounty are, and comprehend the nature of the claims of those he or she desires to include and exclude from participation in the property distribution. [Citations omitted.]” 274 Kan. at 64, 49 P.3d 415.
The Farr court also set forth an appellate court's standard of review of a lower court's ruling on testamentary capacity:
“This court's standard of review of a finding of testamentary capacity is to determine only whether substantial competent evidence exists to support the trial court's findings, and it will not reweight the evidence.” 274 Kan. 51, Syl. ¶ 8, 49 P.3d 415.
The Rissens first argue that Eenhuis, by virtue of her actions with the Lyndon State Bank, should now be estopped from arguing Culver had the requisite testamentary capacity. They contend that Eenhuis cannot now claim that Culver was competent to execute the will on December 17, 2010, but was not competent to deal directly with the Lyndon State Bank. The Rissens also argue Eenhuis' repeated contacts with Burghart occurred by virtue of the power of attorney as well and that Culver never paid for any of Burghart's services.
The problem with the Rissens' argument is twofold. First, they offer no persuasive authority for their estoppel theory. They cite one case for the general proposition that estoppel applies when a party's position is so contrary to one taken previously that it would be unconscionable to allow the present position to prevail. However, the facts here do not reveal inconsistency on the part of Eenhuis. The Rissens cite no actions or effort on the part of Eenhuis to treat Culver as incompetent or to convince either the bank or Burghart that she was incompetent. They point to no actions the bank took at the request of Eenhuis as power of attorney concerning Culver's accounts or how Eenhuis otherwise affected any actions of the bank. Nor do the Rissens indicate how Eenhuis affected any of Culver's actions on her own behalf. To the contrary, the evidence seems to be uncontroverted that that the bank required the consent and signature of Culver herself before taking any action on her accounts. There is absolutely no evidence that the power of attorney was ever used either with or without Culver's consent. Rogers testified Culver was capable of making her own decisions, Rogers insisted that Culver be present for changes to the accounts, and the bank required Culver to sign all documents. Fannin testified she did not make any changes to bank accounts that were against Culver's wishes. While the bank may have requested a copy of the power of attorney, that does not lessen the impact of this testimony of bank employees. It does not mean the bank requested the document before taking any action on Culver's accounts or relied upon it in any way.
Furthermore, Culver's “General Durable Power of Attorney for Business and Property Decisions” states that it “shall commence and be in full force and effect only upon [Culver's] subsequent disability or incapacity.” The document provides the following “Definition of Disability”:
“As used herein, a person who is under a disability or incapacity shall mean a person whose ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that the person lacks the capacity to manage such person's financial resources, as determined by the certification of two licensed physicians, and attested by all of the then-living and competent adult members of the person's immediate family (spouse and children).”
The record in this case lacks any evidence that Culver ever fell under this definition of disability or incapacity or that anyone at the bank ever thought she did or treated her as if she did. Simply put, the power of attorney never took effect before Culver died. We find no basis for why Eenhuis is now estopped from taking the position that Culver possessed testamentary capacity when she signed her final will.
Before we turn to the other testimony on the issue, we first note that whether a testator possesses the capacity to execute a will is primarily a factual determination. Appellate courts rightly give great deference to the factual findings of a district court and generally will not disturb them, especially when they rest on credibility determinations. In an action tried to the district court such as this, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” K.S.A. 60–252. As our Supreme Court has pointed out: “In evaluating the evidence to support the district court's factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact.” Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
In applying that standard to the testimony in this case, we find that it was similar to that in Farr and we conclude it was sufficient to establish a prima facie case of Culver's testamentary capacity. Burghart testified he had no questions concerning Culver's capacity to execute her will. Furthermore, Culver's prior attorney, Burns, did not question her capacity when he suggested a referral to another law firm. Pierce testified Culver was competent to handle her money, but she just needed a little help because of her severe macular degeneration. We have also listened to the recording of Culver's execution of the will on December 17, 2010. The recorded evidence supports the district court's finding that Culver intended to execute a new will prepared by Burghart, she wanted Eenhuis to have the real estate to the exclusion of the Rissens as provided in prior wills, she was not forced by Eenhuis, and her personal property was distributed according to the list discussed with Burghart.
The district court's decision that Culver had the proper testamentary capacity to execute her will on December 17, 2010, is supported by substantial evidence in the record. The Rissens have fallen far short of establishing by clear and convincing evidence any incapacity of Culver.
The Formal Requirements for a Will
The Rissens argue the formal requirements for execution of Culver's December 17, 2010, will were lacking and, therefore, the district court erred in admitting it to probate. The Rissens do not cite any standards of review, statutory provisions, or caselaw in support of their argument.
The Rissens argue there is no evidence in the recording of the will execution to establish certain essential facts such as: (1) that Culver stated it was her last will and testament, (2) that she recited or acknowledged the majority of her real and personal property, (3) that because of her macular degeneration, someone had to show Culver where to sign, (4) that Burghart did not inquire whether this will was the same as a previous one, and (5) that Burghart did not inquire whether there were changes since he prepared the previous one. The Rissens claim this evidence demonstrates Culver failed to realize who were her relatives, who were the natural objects of her bounty, and who of those family members were excluded from her property distribution.
The Rissens also argue that the declaration by those who witnessed the execution of the will contained a number of material false statements. They include: (1) Culver never said this was her last will and testament; (2) Culver never requested the witnesses to sign the last will and testament; and (3) Baker could not witness the execution of the will because she never read the will before signing it, could not testify as to Culver being of sound mind and memory, and did not know Eenhuis used the power of attorney before Culver's death. The Rissens contend both Burghart and Baker were not competent to testify as to Culver's testamentary capacity because Burghart did not know Eenhuis used the power of attorney and Baker knew nothing of Culver's capacity. Consequently, without this foundation evidence, the Rissens argue the district court erred in admitting the December 17, 2010, will and Culver's will dated June 23, 1986, should have been admitted to probate.
“Whether a purported will was properly executed according to the statutory requirements and thereby valid is a conclusion of law. [Citation omitted.]” In re Estate of Milward, 31 Kan.App.2d 786, 789, 73 P.3d 155 (2003). An appellate court has unlimited review of such conclusions. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007). The Rissens' argument also requires interpretation of K.S.A. 59–606. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
K.S.A. 59–606 sets forth the requirements for the proper execution of a will as follows:
“Every will, except an oral will as provided in K.S.A. 59–608 and amendments thereto, shall be in writing, and signed at the end by the party making the will, or by some other person in the presence and by the express direction of the testator. Such will shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the will.”
The Kansas statutes “relating to the execution of wills must be strictly construed even though, in some rare situation, the intent of a testator may be frustrated.” In re Estate of Reed, 229 Kan. 431, 438, 625 P.2d 447 (1981). Also, an attestation clause is presumptive evidence of the facts stated in it. See Farr, 274 Kan. at 60–61, 49 P.3d 415.
The Rissens' lack of standards, statutes, or caselaw supporting their argument is significant. In applying the statutory and case authorities we have cited that do apply on this issue, it is evident there is no legal requirement that there be any tape recording of a will signing at all, much less one that contains the statements the Rissens contend are lacking here.
The Rissens' arguments on this issue are simply a rehash of their challenges to Culver's testamentary capacity that we addressed in the prior issue. We have set forth the evidence supporting the district court's ruling on that issue, and we need not repeat it here. Suffice it say that evidence along with the principle that an attestation clause amounts to presumptive evidence of the facts stated in it support the district court's conclusion that all testamentary formalities of K.S.A. 59–606 were present.
The District Court's Ruling Denying the Rissens' Claim that Culver's 1986 Will Created a Contract for a Future Conveyance of Land
As we can best determine, the Rissens claim that the 1986 will that Culver executed somehow created an obligation on her part to transfer the land in question to the Rissens upon her death. The district court denied the claim, finding that it was based upon an alleged contract for conveyance of a future interest in real estate that was not in writing. As such, the statute of frauds prohibited its enforcement. The Rissens appeal that ruling and also the court's denial of a jury trial on the issue.
To begin with, the legal effect of a written instrument presents a question of law and we determine its legal effect de novo. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). We have examined Culver's 1986 will and find that, by itself, it is totally void of any language whereby she irrevocably promised to either of the Rissens that she would convey her land to them in the future or that she acknowledged any obligation to do so. The will did in fact provide that the Rissens receive the land upon Culver's death; but like any other will, it was revocable and Culver could later change the disposition of her property if she so desired.
The Rissens allege there also existed a will from their uncle Eddy, Culver's brother, that transferred his interest in the land to Culver and her three sisters. They then argue in a rather roundabout and obtuse argument that this will together with Culver's 1986 will and some other oral agreements created a contractual obligation on Culver's part to transfer her interest in the land to the Rissens upon her death.
Clearly, the Kansas statute of frauds prohibits an action “upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them ... unless the agreement ... or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith....” K.S.A. 33–106. Kansas appellate courts have recognized that this statute may be applied to promises to bequeath or transfer land upon the death of the owner. See In re Estate of Spark, 168 Kan. 270, 278–79, 212 P.2d 369 (1949) (oral agreement to bequeath land had to be “clear and satisfactory” to be specifically enforced); McEnulty v. McEnulty, 146 Kan. 198, 200–01, 69 P.2d 1105 (1937) ; Bouton v. Byers, 50 Kan.App.2d 35, 321 P.3d 780 (2014). The district court did not err in denying the Rissens' claim that the facts created an enforceable oral contract for the transfer of land.
As to the argument that the district court erred in denying the Rissens a jury trial on this issue, there was nothing for a jury to decide once the district court made the legal determination that the statute of frauds barred enforcement of any alleged unwritten agreement on the part of Culver to transfer her land to the Rissens,. Additionally, K.S.A. 59–2212 expressly provides: “Trials and hearings in probate proceedings shall be by the court unless otherwise provided by law.” See In re Estate of Suesz, 228 Kan. 275, Syl. ¶ 3, 613 P.2d 947 (1980) (“Challenges to the admission of a will to probate are statutory in nature. A party does not have a right, constitutional or otherwise, to a jury trial in a proceeding of this type.”). The claim the Rissens assert to the effect that Culver had some contractual obligation to transfer the land to them are inextricably entwined with their challenge to the admission of Culver's December 17, 2010, will. It is part and parcel of that challenge. As such, the probate code provided that “the proceedings shall be by the court.” The district court did not err in denying the Rissens a jury trial on this issue.
Affirmed.