Opinion
110,894.
05-08-2015
In the Matter of the ESTATE OF Dorothy M. MAHONEY, Deceased.
Jason L. Reed, of Adams Jones Law Firm, P.A., of Wichita, for appellant Thomas Mahoney. Karen Q. Couch and George Yarnevich, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellee Rosemary Neaderhiser. John C. Herman, of Herman Law Office, P.A., of Hays, for appellee Anthony Mahoney. Ross Wichman, of Anderson & Wichman, of Hays, for appellee Garry Mahoney.
Jason L. Reed, of Adams Jones Law Firm, P.A., of Wichita, for appellant Thomas Mahoney.
Karen Q. Couch and George Yarnevich, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellee Rosemary Neaderhiser.
John C. Herman, of Herman Law Office, P.A., of Hays, for appellee Anthony Mahoney.
Ross Wichman, of Anderson & Wichman, of Hays, for appellee Garry Mahoney.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
When Dorothy M. Mahoney died, her five adult children began to fight over who was entitled to her property and whether the distribution under the will was fair. Each child obtained his or her own counsel. In addition, a cousin with claims to certain property hired counsel and was allowed to join the case. Many motions were filed, and several hearings were held. At the end of it all, one child, Thomas Mahoney, appeals various decisions made by the district court regarding his mother's estate. The issues to be addressed are as follows: (1) Whether this court has jurisdiction to hear any of Thomas' issues on appeal; (2) whether the district court erred when it determined that Garry Mahoney—a cousin—and Garry's siblings actually owned the Avery tractor and separator, not the Dorothy Mahoney estate; (3) whether Dorothy's estate owned various pieces of farm equipment and two buggies; (4) whether the district court improperly handled Thomas' petition to set aside the order admitting Dorothy's will to probate; (5) whether the district court erred when it determined that Thomas' petition to set aside the order admitting Dorothy's will to probate was a contest of her will; and (6) whether the district court erred when it determined that Thomas lacked probable cause to challenge Dorothy's will, which triggered the in terrorem clause. After an exhaustive review of the record in this case, the briefs, and the oral argument, we find we have jurisdiction over all issues raised in the appeal except (1) the allowance of Anthony's creditor claim for cattle proceeds; (2) the district court's denial of Thomas' petition to have the in terrorem clause triggered as to Anthony and Rosemary's motion to remove Thomas as co-executor of the will; and (3) the decision of the district court to first have a private auction of Dorothy's personal property, followed by a public auction for the remainder. We find that these are not final appealable orders as contemplated in the probate code. As to the issues over which we do have jurisdiction, we find that the district court committed no error in its well-reasoned opinions. Accordingly, we affirm.
Factual and Procedural History
Dorothy Mahoney, the deceased, was married to the late Ken Mahoney. Together, they had five children: Thomas Mahoney, Anthony Mahoney, Rosemary Neaderhiser, Annette Mahoney, and Lucinda Drago. Dorothy made Rosemary and Anthony her powers of attorney during her lifetime.
On September 3, 2010, Dorothy revoked any and all of her previous wills and testamentary dispositions by creating a new Last Will and Testament. Thomas, Anthony, and Rosemary were designated as Dorothy's co-executors.
With regard to her real estate, Dorothy bequeathed to Thomas the surface rights of a piece of real property in Russell County, Kansas. Dorothy then bequeathed to Anthony the surface rights of another piece of real property, also in Russell County, Kansas. Dorothy's daughters, Rosemary, Lucinda, and Annette, were bequeathed the surface rights to all other real property that Dorothy might own to share and share alike. All other personal property was to be divided equally among the children.
On July 29, 2011, Dorothy signed the First Codicil to her will. In the codicil, she added an in terrorem clause to her will, wherein any beneficiary of her will who contests the will would be disinherited.
After Dorothy's death, her will and codicil were admitted to probate and Thomas, Anthony, and Rosemary were appointed her co-executors.
Thomas filed a petition with the district court, requesting a stay in the proceedings in order to determine whether all three co-executors had to agree on any given action pertaining to the estate or whether a majority of the co-executors would suffice. In addition, Thomas asked for an accounting from Rosemary and Anthony of their actions as Dorothy's powers of attorney.
Rosemary and Anthony then filed a motion to remove Thomas as a co-executor because of his refusal to cooperate and communicate with them, which was unnecessarily delaying the administration of the estate. They later withdrew their motion.
The district court construed Dorothy's will to mean that a two-thirds majority of the co-executors would be needed for the approval of matters and to transact any actions on behalf of the estate. The district court also ordered Rosemary and Anthony to provide an accounting of their acts as powers of attorney. We pause to note that by this time, the animosity had reached the point that the estate was represented by one attorney and each sibling was represented by separate counsel.
In October and November 2012, the district court made the following orders pertinent to this appeal: (1) Anthony was reimbursed for the sale of certain livestock; (2) certain farm equipment was deemed personal property of Dorothy's estate rather than owned by Thomas; (3) two buggies were deemed personal property of Dorothy's estate rather than belonging to Thomas; and (4) the Avery tractor and separator were the personal property of Garry Mahoney and his siblings rather than owned by Dorothy's estate.
Thomas filed a petition to alter or amend the orders filed in October and November 2012. In March 2013, the district court denied Thomas' petitions to alter or amend the judgments.
Thomas also filed a petition to set aside the order that admitted Dorothy's will to probate and appointed the co-executors. In the petition, Thomas asserted the following: (1) He was led to believe by the estate attorney that he could challenge the will so long as he stepped down as co-executor; (2) the estate attorney misrepresented Thomas' ability to challenge the will; (3) there was evidence to suggest that Dorothy wanted to disavow her will before her death; (4) Rosemary and Anthony knew of Dorothy's wish to revoke her will, but as her powers of attorney, failed to abide by her wishes; (5) the other beneficiaries of Dorothy's will were to receive significantly more than Thomas under the will; and (6) Thomas had a good-faith basis to believe that Dorothy's will was signed as a result of undue influence and/or coercion by one or both of the powers of attorney.
Based on these assertions, Thomas asked the court (1) to set aside the order admitting Dorothy's will to probate; (2) to allow him to present evidence that Dorothy's will was the product of undue influence and/or coercion; (3) to allow him to present evidence that the powers of attorney failed in their duties; and (4) to allow him to file a petition to determine the validity of Dorothy's will, which would determine whether Dorothy died testate or intestate.
After an evidentiary hearing, the district court found that there was insufficient evidence presented to show that there was any undue influence. The district court denied Thomas' petition to set aside Dorothy's will.
Rosemary and Anthony both then filed petitions to enforce the in terrorem clause of Dorothy's will against Thomas arguing that his petition to set aside the order to probate Dorothy's will was truly a contest of Dorothy's will. Thomas then filed a petition to enforce the in terrorem clause against Rosemary and Anthony for attempting to remove Thomas as a co-executor.
The district court agreed with Rosemary and Anthony and determined that Thomas, by filing his petition to set aside Dorothy's will, was contesting the will without probable cause; thus, triggering the in terrorem clause. The district court disagreed with Thomas that Rosemary and Anthony triggered the in terrorem clause by requesting Thomas' removal as co-executor, a motion they had withdrawn prior to a ruling from the court.
Additional facts will be added as necessary to resolve the issues presented on appeal.
Analysis
This court has jurisdiction to hear all but three of the issues set forth in Thomas' appeal.
Before the briefs were filed in this case, this court, on its own motion, issued a show cause order requesting written responses from the parties discussing whether the order Thomas appealed from was a final order. The parties filed their responses. The appeal was retained, but this court asked the parties to brief the jurisdictional issue.
Thomas, Rosemary, and Garry each contend that this court does have jurisdiction to hear all of Thomas' issues on appeal. They assert that the district court's decision to enforce the in terrorem clause against Thomas constituted a final order as to any rights Thomas had in his mother's estate. Anthony argues that the only appealable order is the last one made by the district court wherein the in terrorem clause was triggered against Thomas. Thus, only the issue pertaining to the in terrorem clause is appealable and all other issues are not because they were decided in various district court orders that were not final and appealable. So we begin with a discussion of our jurisdiction.
“The finality of a district court probate order and the appropriateness and timing of an appeal from it raise questions of statutory interpretation subject to unlimited review by an appellate court. [Citation omitted.]” In re Estate of Butler, 301 Kan. ––––, 343 P.3d 85, 90 (2015).
Under the Probate Code, specifically K.S.A.2014 Supp. 59–2401(b), “[a]n appeal from the district court to an appellate court taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.”
The language in K.S.A.2014 Supp. 60–2102(a)(4) states that an appeal can be taken to the Court of Appeals when there is “[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.”
“ ‘The term “final decision” has been construed to mean “ ‘ “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” ‘ “ [Citations omitted.] This court has noted the term “ ‘ “final decision” is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.’ “ [Citations omitted.]' [Citation omitted.]” Butler, 343 P.3d at 92.
The same statute also sets out a laundry list of orders that can be appealed from a district magistrate judge to a district judge. See K.S.A.2014 Supp. 59–2401(a). Although our Supreme Court has rejected any interpretation that the laundry list in K.S.A.2014 Supp. 59–2401(a), must also apply to K.S.A.2014 Supp. 59–2401(b), the Supreme Court has not completely ruled out the possibility that some appealable orders under subsection (a) could also fall under subsection (b) as final orders, when it stated the following:
“But this is not to say that the subject matter of orders subject to appeal under the various constituent categories of (a) or the degree of such orders' finality will never resemble those orders subject to appeal under (b). Indeed, we observe, on finality alone, that K.S.A.2012 Supp. 59–2401(a)(21) specifically contemplates appeal from a magistrate judge to a district judge on ‘[a]ny other final order, decision or judgment in a proceeding involving a decedent's estate.’ “ Butler, 343 P.3d at 91.
We pause to note that Thomas properly and timely filed notices of appeal for each of the orders he appeals here. No party alleges otherwise.
Enforcement of the in terrorem clause against Thomas
In its order filed October 17, 2013, the district court found that Thomas, “at the time he filed his Petition to Set Aside Order Admitting Will did not have probable cause that would lead a reasonable person that was properly informed and advised to conclude there was a substantial likelihood that the contest or attack [on Dorothy's will] would be successful.” Thus, the district court granted Rosemary's and Anthony's petition to enforce the in terrorem clause against Thomas, and any share Thomas had in Dorothy's estate lapsed as if Thomas died before Dorothy without leaving any living descendants.
All parties agree that this was a final appealable order, and we do as well. Because of the district court's decision, Thomas will no longer inherit from Dorothy's estate and will be treated for all inheritance purposes as if he had predeceased Dorothy with no heirs. In essence, the district court's action “definitely terminates a right ... involved in the action” as it relates to Thomas. See Butler, 343 P.3d at 92.
Anthony's claim for his share of profits from cattle sales
Thomas and Rosemary argue that this court has jurisdiction to hear this issue because all creditor's claims have been determined and the only action left is for the estate to pay out the claims. Thus, the district court is not required to take any further action on the issue.
Anthony made a claim for the payment of $14,186.78, from Dorothy's estate for the sale, by the estate, of livestock he owned. The district court granted Anthony's claim pertaining to the reimbursement for the sale of the livestock.
The question, again, is whether this order is a final appealable order because Dorothy's estate has yet to be finally closed. In 2008, Anthony purchased 18 head of cattle from his parents for $20,000, in order to help them pay down a debt. For the following 3 years, the proceeds from all the calves that were born and sold were also used to pay down his parents' debt. Anthony claimed that if the proceeds from the calf sales had not been used to pay down his parents' debt, he would have received $14,186.78. After Dorothy's death, Anthony's 18 head of cattle were sold along with the rest of the herd. Anthony demanded payment from Dorothy's estate for the 3 years of calf sales that he would have received if those proceeds had not been used to pay down his parents' debt. Thomas does not challenge the amount of the claim. Instead, he argues that Anthony was required to file the claim in the estate of Ken Mahoney and by failing to do so Anthony waived any claim for the proceeds of calf sales from Dorothy's estate.
We find that the district court's order granting Anthony's creditor claim is not “an order which definitely terminates a right or liability involved in the action.” See Butler, 343 P.3d at 92.There has been no right or liability terminated by the district court's action. In addition, the district court's order does not appear to be an order “which grants or refuses a remedy as a terminal act in the case.” See 343 P.3d at 92. Granting Anthony's creditor claim does not and will not terminate the case or any part thereof. If each creditor claim in a probate action is final and appealable, this court could foresee a litany of appeals throughout any probate matter, which would delay any estate proceeding indefinitely.
Therefore, this court does not have jurisdiction to hear Thomas' appeal on Anthony's creditor claim at this time.
Ownership of the Avery tractor and removal of it from the estate
Thomas and Rosemary both contend that this court has jurisdiction over this issue because there is no further action necessary from the district court, i.e., the district court finally determined who owned the Avery tractor and separator; thus, no further action is necessary.
The district court determined that Garry Mahoney—Thomas' cousin—and Garry's siblings owned the Avery tractor and separator. It was simply being stored on Dorothy's property. Thomas contends that the owner of the Avery tractor and separator is Dorothy's estate.
The question, again, is whether this order is a final appealable order because Dorothy's estate has not been finally closed. We find this to be a final order because the district court's decision determined who owns, as personal property, the Avery tractor and separator. The district court's order terminated any right Dorothy's estate had to the Avery tractor and separator as personal property. Thus, the district court's order granting Garry and his siblings the right to the Avery tractor and separator is a final appealable order.
Personal property belonging to Thomas
The district court determined that Dorothy's estate, rather than Thomas, owned the following items: the five-bottom plow, the galvanized John Deere field drill, the under cutter, the John Deere tractor 4240, and the two buggies. Thomas argues that all of these items, either in full or half interest, belong to him as personal property.
Thomas and Rosemary both contend that this court has jurisdiction over this issue because there is no further action necessary from the district court, i.e., the district court finally determined who owned certain pieces of personal property; thus, no further action is necessary.
The question, again, is whether this order is a final appealable order because Dorothy's estate has not been finally closed. We find this to be a final order because the district court's decision determined who owns, as personal property, the right to these items. The district court's order terminated any right Thomas had to these items as personal property. Thus, the district court's order granting Dorothy's estate the right to the personal property items is a final appealable order.
Failure to enforce the in terrorem clause against Rosemary and Anthony
Thomas fails to argue, and almost concedes, that this court does not have jurisdiction to hear this issue. It appears that Rosemary even neglects to address whether this issue is appealable.
Rosemary and Anthony filed a motion to remove Thomas as a co-executor because of his refusal to cooperate and communicate with them, which was unnecessarily delaying the administration of the estate. They then withdrew their motion. Thomas filed a petition to enforce the in terrorem clause against Rosemary and Anthony for attempting to remove Thomas as a co-executor.
The district court disagreed with Thomas that Rosemary and Anthony triggered the in terrorem clause by requesting Thomas' removal as co-executor. Thus, the district court denied Thomas' request to enforce the in terrorem clause against Rosemary and Anthony.
A similar issue was presented in In re Estate of Barfoot, No. 92,103, 2005 WL 2254456 (Kan.App.2005) (unpublished opinion). In Barfoot, our court determined that it did not have jurisdiction to determine whether the district court erred in denying a request to enforce the in terrorem clause because the district court's order left open the possibility that the in terrorem clause would actually be violated at a future date, i.e., “[the beneficiaries'] share remained subject to forfeiture via future motions to enforce the in terrorem clause.” 2005 WL 2254456, at *7.
In addition, this would not be a final order under our Supreme Court's definition of what a final order is as set out in Butler. There is no definite termination of a right or liability, and the refusal to enforce the in terrorem clause is not an action that would terminate the case. See Butler, 343 P.3d at 91–92.
Therefore, this issue cannot be appealed by Thomas because the district court's order denying Thomas' request to enforce the in terrorem clause against Rosemary and Anthony is not a final appealable order.
The sale of Dorothy's personal property at auction
The district court ordered that certain personal property in Dorothy's estate be sold, first at a private family auction and then any remaining personal property would be sold at a public auction. The substance of Thomas' appeal on this issue is not that an auction has been ordered, but the form in which the auction will take place. Thomas does not like that the district court ordered a family auction with just family members involved in the first bidding process. He contends that this will result in less than fair market value being obtained for the items, lessening the value of the estate as a whole. Thomas asserts that this court has jurisdiction over this issue because the district court's order requiring an auction of the personal property in Dorothy's estate is a final order that does not leave open the possibility for future action.
We find that the district court's order for the family auction is not a final appealable order. The order does not appear to terminate a right or liability in the case, and it does not appear to grant or refuse a remedy that would terminate the case as to any party involved. See Butler, 343 P.3d at 91–92. It is merely an order that Dorothy's estate's personal property be sold at a private family auction and then, the remainder, at a public auction. This is especially true given that Thomas does not appear to object to the personal property being sold at auction, but merely to the form of the sale.
We will proceed to examine the issues for which we determined we have jurisdiction.
There was substantial competent evidence to support the district court's conclusion that Garry Mahoney and his siblings own the Avery tractor; therefore it is not part of Dorothy's estate.
Thomas contends that the district court erred when it determined that the Avery tractor and separator belonged to Garry Mahoney and his siblings and not to Dorothy's estate.
Garry, Rosemary, and Anthony all assert that there was substantial competent evidence to support the district court's conclusion that the Avery tractor and separator are owned by Garry and his siblings and therefore not a part of Dorothy's estate.
When reviewing a mixed question of fact and law, an appellate court applies a bifurcated review standard. The court's factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Gannon v. State, 298 Kan. 1107, 1175–76, 319 P.3d 1196 (2014). “In determining whether substantial competent evidence supports the district court's findings, appellate courts disregard any conflicting evidence or other inferences that might be drawn from the evidence. [Citation omitted.]” 298 Kan. at 1175–76.
Garry testified that he and his sisters own the Avery tractor and separator and that it was specifically handed down to them in his mother's and father's wills.
Thomas testified that Dorothy's estate owned the Avery tractor and separator. However, Anthony testified, and Rosemary agreed, that it was always understood that Garry's family owned the Avery tractor and separator.
During Garry's testimony, he discussed his parents' estate plans and that the Avery tractor was specifically listed in both his parents' estates as their personal property. Garry also testified to a decree of descent indicating that Garry and his siblings inherited the Avery tractor and separator. In addition, the district court examined the estate proceedings of Garry's parents, as well as the decree of descent involving the Avery tractor.
Based on the testimony of Garry, Rosemary, and Anthony, the district court had substantial competent evidence to support its conclusion that Garry and his siblings own the Avery tractor and separator and that it should not be included in Dorothy's estate.
There was substantial competent evidence to support the district court's conclusion that Dorothy's estate, rather than Thomas, owned certain personal property.
Thomas argues that the district court erred when it determined that Dorothy's estate owned the following items: the five-bottom plow, the galvanized John Deere field drill, the under cutter, the John Deer 4240 tractor, the Major buggy, and the Van Laningham buggy.
Rosemary and Anthony both assert that the farm equipment and buggies belong to Dorothy's estate and that there was substantial competent evidence to support the district court's decision.
The district court found that there was not enough evidence presented to establish that Thomas had a farming partnership with his father in which Thomas owned one-half of the farm equipment. This equipment included the five-bottom plow, the galvanized John Deere field drill, the under cutter, and the John Deere 4240 tractor. The district court determined that these items belonged to Dorothy's estate and not to Thomas.
The district court also found that there was not enough evidence presented to establish that Thomas owned the two buggies; thus, they belonged to Dorothy's estate. The district court found that there was no evidence presented by Thomas that he purchased the buggies and there was contradictory evidence that Thomas was gifted the buggies.
When reviewing a mixed question of fact and law, an appellate court applies a bifurcated review standard. The court's factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Gannon, 298 Kan. at 1175–76. “In determining whether substantial competent evidence supports the district court's findings, appellate courts disregard any conflicting evidence or other inferences that might be drawn from the evidence. [Citation omitted.]” 298 Kan. at 1175–76.
Thomas testified that he and his father entered into a farming agreement and that the five-bottom plow, the galvanized John Deere field drill, the under cutter, and the John Deere 4240 tractor were purchased in order to begin farming. Thomas did not specifically remember if he purchased the five-bottom plow or if it was purchased under the farming agreement.
Thomas produced a check register that he claimed was proof of the farming agreement between him and his father. In addition, at an entirely different evidentiary hearing, Thomas presented evidence from two individuals that he did conduct farming operations; however, there was no testimony that his farming operations included a farming agreement between Thomas and his father. Thomas was unable to produce any cancelled checks or receipts, and the farming agreement was not in writing. Thomas claimed that he farmed with his father for 3 or 4 years and then quit. After Thomas quit farming, his father continued to use the equipment for farming purposes. In addition, Thomas did not claim an interest in the farming equipment during the distribution and settlement of his father's estate.
Anthony testified that he had no independent recollection of his father and Thomas farming together under a farming agreement. Anthony testified that all of the personal property claimed by Thomas was owned by their father at his death and then passed to Dorothy. There was evidence that their father purchased the John Deere 4240 tractor and Dorothy paid for repairs on the tractor.
Thomas testified that because he restored the Major buggy, Dorothy gifted it to him. In addition, Thomas painted his initials on the back of the buggy. With regard to the Van Laningham buggy, Thomas testified his ownership in the buggy was well known because it was gifted to him by his father once Thomas restored it.
It was Anthony's understanding that the buggies were owned by their father. Additional evidence was presented that a plaque in the museum where the buggies are located indicated that the buggies were loaned to the museum by their father and the family and not by Thomas alone. Rosemary testified that Thomas informed her that the Major buggy belonged to their parents.
The district court had substantial competent evidence to support its conclusion that the above personal property was owned by Dorothy's estate. Both Rosemary and Anthony testified that the farm equipment and the buggies were owned by Dorothy's estate. Thomas' attempt to prove that he owned the personal property was not persuasive because he failed to present any form of documentation to counter Rosemary's testimony and the district court apparently concluded that Thomas' testimony, and his testimony, alone, was not strong enough to counter his siblings' testimony.
The district court did rule on Thomas' petition to set aside the order admitting Dorothy's will to probate.
Thomas' argument on appeal is somewhat confusing. At first, it appears that he wants this court to review the district court's denial of his petition to set aside the order admitting Dorothy's will to probate. However, he then contends that the district court never ruled on the petition, but rather immediately converted it to an actual challenge of Dorothy's will.
Thomas filed a petition to set aside order admitting will to probate and appointment of co-executors. In the petition, Thomas asserted the following: (1) He was led to believe by the estate attorney that he could challenge the will so long as he stepped down as co-executor; (2) the estate attorney misrepresented Thomas' ability to challenge the will; (3) there was evidence to suggest that Dorothy wanted to disavow her will before her death; (4) Rosemary and Anthony knew of Dorothy's wish to revoke her will, but as her powers of attorney, failed to abide by her wishes; (5) the other beneficiaries of Dorothy's will were to receive significantly more than Thomas under the will; and (6) Thomas had a good-faith basis to believe that Dorothy's will was signed as a result of undue influence and/or coercion by one or both of the powers of attorney.
Based on these assertions, Thomas asked the court (1) to set aside the order admitting Dorothy's will to probate; (2) to allow him to present evidence that Dorothy's will was the product of undue influence and/or coercion; (3) to allow him to present evidence that the powers of attorney failed in their duties; and (4) to allow him to file a petition to determine the validity of Dorothy's will, which would determine whether Dorothy died testate or intestate.
After an evidentiary hearing, the district court found that there was insufficient evidence presented to show that there was any undue influence. The district court denied Thomas' petition to set aside Dorothy's will by directed verdict.
Based on the journal entry filed by the district court and the trial judge's oral rulings from the bench, it is clear that it specifically ruled on and denied Thomas' petition to set aside the order admitting Dorothy's will to probate. There is nothing in the journal entry itself, or in the trial judge's comments from the bench to suggest that the district court was converting the petition into one that directly challenged Dorothy's will. Thus, Thomas' argument that the district court never ruled on his petition to set aside the order admitting Dorothy's will to probate is not persuasive.
With that, we address Thomas' argument that the district court erred when it denied his petition. Because the district court denied Thomas' petition via granting Rosemary's and Anthony's request for a directed verdict after Thomas presented his evidence, the standard of review for a directed verdict will be used to analyze this issue.
When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. The appellate court must apply a similar analysis when reviewing the grant or denial of a motion for judgment as a matter of law. City of Neodesha v. BP Corporation, 295 Kan. 298, 319, 287 P.3d 214 (2012) ; see also Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 706–07, 317 P.3d 70 (2014).
Judgment entered during a bench trial prior to the conclusion of a trial is governed by K.S.A.2014 Supp. 60–252(c). When the district court makes findings of fact and conclusions of law under K .S.A.2014 Supp. 60–252(c), the function of the appellate court is to determine whether the findings are supported by substantial competent evidence and are sufficient to support the conclusions of law. See Lewis v. R & K Ranch, 41 Kan.App.2d 588, 592, 204 P.3d 642 (2009).
When reviewing a mixed question of fact and law, an appellate court applies a bifurcated review standard. The court's factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Gannon, 298 Kan. at 1175–76. “In determining whether substantial competent evidence supports the district court's findings, appellate courts disregard any conflicting evidence or other inferences that might be drawn from the evidence. [Citation omitted.]” 298 Kan. at 1175–76.
Even when viewing the evidence in the light most favorable to Thomas, the district court possessed substantial competent evidence supporting its conclusions of law. The district court determined that the evidence did not support the conclusion that Dorothy was unduly influenced when putting together and signing her will. The evidence shows that during conversations between Dorothy and various attorneys throughout the years regarding the creation of her will, no one else, besides Dorothy and the attorney, were present. In addition, the attorneys testified that Dorothy was competent at the time of their conversations with her and at the time she created and signed her will and subsequent codicil. There was also testimony that Dorothy was not under any undue influence at the time she signed her will and codicil.
The evidence does establish that there was a meeting between Mark Arthur—the drafter of Dorothy's final will and codicil—and Anthony and Dorothy, where Anthony requested that several transfer-on-death deeds be drafted regarding several pieces of real estate. However, Dorothy spoke very little at this meeting and indicated no desire to change her estate plan. Arthur did not draft the transfer-on-death deeds because he did not believe it was Dorothy's desire and believed that she did not wish to disavow her will. To Arthur, it appeared that Anthony was the person who desired the estate plan change and who wanted to disavow the will, but Arthur refused since Dorothy was not the person requesting the changes.
Thomas testified that he did ask the estate attorney on two separate occasions what would happen if an executor challenged the will. The attorney replied that the executor would have to resign. However, there was testimony provided by the estate attorney that Thomas never discussed challenging the will or the consequences of challenging the will.
Anthony and Rosemary both testified that they had no involvement in the drafting of Dorothy's will. Rosemary also testified that neither she nor Anthony attempted to influence Dorothy regarding her will.
Thomas also testified that his mother, during an argument between Thomas and Rosemary, clearly stated that her will was and void. However, at a later date, Dorothy told Thomas that she was not going to destroy the will because she believed it was fair.
Thomas also believed that Anthony kept from Dorothy information contained in a letter from Arthur. This letter suggests that Dorothy wished to disavow her will and that Arthur was uncomfortable completing such a task. However, Arthur, in his testimony at the hearing explained that it was Anthony who pushed for the change in Dorothy's estate plan and that Dorothy did not, in fact, discuss any changes to her estate plan. Thus, based on Dorothy's behavior, Arthur was not convinced that Dorothy wanted to disavow her will or change her estate plan in any way.
The evidence is clear that Thomas voluntarily executed the petition to admit Dorothy's will to probate and to appoint the co-executors. Thomas did not contest this fact at the hearing.
There is a 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. In re Estate of Farr, 274 Kan. 51, 70–71, 49 P.3d 415 (2002). In addition, 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.” In re Estate of Hall, 165 Kan. 465, 470, 195 P.2d 612 (1948). Furthermore, “human 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). Finally, 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).
Clearly, in this case, there was a confidential relationship between Dorothy, Rosemary, and Anthony because Rosemary and Anthony were Dorothy's powers of attorney and also her beneficiaries. However, based on the transcript of the hearing, Thomas failed to present specific evidence of suspicious behavior surrounding the making of the will. Dorothy, at the time she discussed the contents of her will and codicil, was alone with her attorney.
At best, any evidence that Thomas did present at the hearing was mere speculation that either Anthony or Rosemary attempted to influence Dorothy to give Thomas a smaller share of the property. Furthermore, there does not appear to be any indication, if Anthony and Rosemary did attempt to influence Dorothy to do such a thing, when the influence may have occurred, let alone around the time the will was executed. And even if they did, such actions do not appear to amount to undue influence under Kansas law. See Klose, 137 Kan. at 326.
Therefore, the district court did not err when it granted Rosemary's and Anthony's request for a directed verdict, which denied Thomas' petition to set aside the order admitting Dorothy's will to probate.
The district court did not err when it determined that Thomas' petition to set aside the order admitting Dorothy's will to probate was a will contest that triggered the in terrorem clause.
Thomas contends that the district court erred when it determined that his petition to set aside the order admitting the will to probate was a contest of Dorothy's will, thereby triggering the in terrorem clause. He argues that his petition was merely a procedural precursor to eventually challenging Dorothy's will.
Rosemary and Anthony both filed petitions to enforce the in terrorem clause of Dorothy's will against Thomas because he filed his petition to set aside the order admitting Dorothy's will to probate. They both argued that the petition, in reality, was a contest to Dorothy's will, which triggered the in terrorem clause.
The district court agreed with Rosemary and Anthony and determined that Thomas, by filing his petition, was actually contesting the will without probable cause, thus triggering the in terrorem clause.
The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Hamel v. Hamel, 296 Kan. 1060, 1068, 299 P.3d 278 (2013). When interpreting written instruments, the primary rule of construction is to ascertain the parties' intent. If the terms of the written instrument are unambiguous, the parties' intent is to be ascertained from the document language without applying rules of construction. See Prairie Land Elec. Co-op v. Kansas Elec. Power Coop, 299 Kan. 360, 366, 323 P.3d 1270 (2014).
This court must determine whether Thomas' petition to set aside the order admitting Dorothy's will to probate was a will contest under the language of the in terrorem clause of Dorothy's will and codicil.
The language of Dorothy's in terrorem clause is as follows:
“ ‘Every heir, legatee, devisee or beneficiary under this will who shall, directly or indirectly, contest in any court or before any tribunal any provision of this instrument shall not be entitled to any devises, legacies or benefits under this Will or any Codicil hereto, and any and all devises, legacies and portions of the income or corpus of my estate otherwise provided to be paid or distributed to such person shall lapse and shall be paid, distributed and passed as though such person had died prior to my death leaving no living lawful descendants.’ “ (Emphasis added.)
In Thomas' petition to set aside the order admitting Dorothy's will to probate, Thomas specifically asks the district court to allow him to file a petition to determine the validity of Dorothy's will. Thomas also asserted that he had a good-faith basis to believe that Dorothy was subjected to undue influence at the time she created and executed her will.
Thomas' argument that his petition should not be construed as a will contest because it was merely a procedural precursor to challenging Dorothy's will is not persuasive. Thomas specifically asked the district court to allow him to file a petition to contest the will and asserted that Dorothy was under undue influence at the time of the execution of her will. Even if this is not considered as a direct contest of Dorothy's will, then it is certainly an indirect contest of Dorothy's will, which does trigger the in terrorem clause.
Thus, the district court did not err when it determined that Thomas' petition to set aside the order admitting Dorothy's will to probate was a contest of Dorothy's will.
There was no probable cause to support Thomas' challenge to the will.
Thomas contends that there was probable cause to contest Dorothy's will and the district court erred when it enforced the in terrorem clause against him.
An in terrorem clause will only be given effect if a beneficiary contests the will without probable cause to do so. In re Estate of Foster, 190 Kan. 498, 500, 376 P.2d 784 (1962). In In re Estate of Campbell, 19 Kan.App.2d 795, 801, 876 P.2d 212 (1994), this court adopted the definition of probable cause as “ ‘the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.’ “
Appellate review of a determination of whether probable cause exists to contest a will is a mixed question of fact and law. In re Estate of Wells, 26 Kan.App.2d 282, 285, 983 P.2d 279 (1999). When reviewing a mixed question of fact and law, an appellate court applies a bifurcated standard of review. The court's factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Gannon, 298 Kan. at 1175–76. “In determining whether substantial competent evidence supports the district court's findings, appellate courts disregard any conflicting evidence or other inferences that might be drawn from the evidence. [Citation omitted.]” 298 Kan. at 1175–76.
The district court possessed substantial competent evidence that supported its conclusions of law. The district court determined that the evidence supported the conclusion that Dorothy was not unduly influenced when putting together and signing her will. Thus, there was no probable cause to contest the will.
The evidence supports the court's conclusion. During conversations between Dorothy and various attorneys throughout the years regarding the creation of her will, no one else, besides Dorothy and the attorney, were present. In addition, the attorneys testified that Dorothy was competent at the time of their conversations with her and at the time she created and signed her will and subsequent codicil. There was also testimony that Dorothy was not under any undue influence at the time she signed her will and codicil.
As stated previously, the evidence does establish that there was a meeting between Arthur—the drafter of Dorothy's final will and codicil—and Anthony and Dorothy, where Anthony requested that several transfer-on-death deeds be drafted regarding several pieces of real estate. However, Dorothy spoke very little at this meeting and indicated no desire to change her estate plan. Arthur did not draft the transfer-on-death deeds because he did not believe it was Dorothy's desire and believed that she did not wish to disavow her will. To Arthur, it appeared that Anthony was the person who desired the estate plan change and who wanted to disavow the will, but Arthur refused since Dorothy was not the person requesting the changes.
Anthony and Rosemary both testified that they had no involvement in the drafting of Dorothy's will. Rosemary also testified that neither she nor Anthony attempted to influence Dorothy regarding her will.
One of Thomas' allegations that Dorothy's will is invalid is that she was subjected to undue influence by Rosemary and Anthony. As stated above, there is a 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. Farr, 274 Kan. at 70–71. In addition, 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. Furthermore, “human 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, 137 Kan. at 326. Finally, undue influence, in order to overcome a testamentary act, must directly affect the testamentary act itself. Bennett, 19 Kan.App.2d at 163.
As already established, there was a confidential relationship between Dorothy, Rosemary, and Anthony because Rosemary and Anthony were Dorothy's powers of attorney and also her beneficiaries. However, based on the transcript of the hearing, Thomas failed to present specific evidence of suspicious behavior surrounding the making of the will. Dorothy, at the time she discussed the contents of her will and codicil, was alone with her attorney.
Thomas also alleged that Dorothy's will was invalid because she expressed a desire to revoke her will. Thomas testified that his mother, during an argument between Thomas and Rosemary, clearly indicated that her will was and void. However, at a later date, Dorothy told Thomas that she was not going to destroy the will because she believed it was fair.
Thomas also believed that information in a letter from Arthur had been kept from Dorothy by Anthony. This letter suggests that Dorothy wished to disavow her will and that Arthur was uncomfortable completing such a task. However, Arthur, in his testimony at the hearing explained that it was Anthony who pushed for the change in Dorothy's estate plan and that Dorothy did not, in fact, discuss any changes to her estate plan. Thus, based on Dorothy's behavior, Arthur was not convinced that Dorothy wanted to disavow her will or change her estate plan in any way.
Again, any evidence that Thomas presented at the hearing is mere speculation that either Anthony or Rosemary attempted to influence Dorothy to give Thomas a smaller share of the property. Furthermore, there does not appear to be any indication, if Anthony and Rosemary did attempt to influence Dorothy to do such a thing, when the influence may have occurred, let alone around the time the will was executed. And even if they did, such actions do not appear to amount to undue influence under Kansas law. See Klose, 137 Kan. at 326.
Therefore, the district court did have substantial competent evidence to support its conclusion of law that Thomas did not have probable cause to contest Dorothy's will.
Affirmed in part and dismissed in part.