Opinion
111,389.
09-11-2015
In the Matter of the ESTATE OF Beuford W. RICKABAUGH a/k/a B.W. Rickabaugh, Deceased.
Stanley R. Ausemus, of Stanley R. Ausemus Chartered, of Emporia, and Dan E. Turner and Phillip L. Turner, of Topeka, for appellant Everett W. Rickabaugh. Rachael K. Pirner and Shane A. Rosson, of Triplett, Woolf & Garretson, LLC, of Wichita, and Thomas A. Krueger, of Krueger & Williams, of Emporia, for appellees Angella Rickabaugh Glasgow and Lisa Rickabaugh.
Stanley R. Ausemus, of Stanley R. Ausemus Chartered, of Emporia, and Dan E. Turner and Phillip L. Turner, of Topeka, for appellant Everett W. Rickabaugh.
Rachael K. Pirner and Shane A. Rosson, of Triplett, Woolf & Garretson, LLC, of Wichita, and Thomas A. Krueger, of Krueger & Williams, of Emporia, for appellees Angella Rickabaugh Glasgow and Lisa Rickabaugh.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
Opinion
ATCHESON, J.In 1992, Beuford Rickabaugh executed a will dividing his estate equally between his granddaughters and, thus, effectively disinheriting their father and his son Everett Rickabaugh. When Beuford died 20 years later and the will was presented for probate in the Greenwood County District Court, Everett launched a multifaceted attack aimed at keeping the document from being enforced—meaning he would inherit the estate, likely worth millions of dollars, through intestate succession. The district court rebuffed each of the procedural and substantive challenges from Everett and directed disbursement of Beuford's estate to Angella Glasgow and Lisa Rickabaugh, the granddaughters, in accordance with the will. Everett has appealed on a host of grounds. Those points trade on varying degrees of infirm legal argument and present no sound reasons for upsetting the judgment in favor of Angella and Lisa. We, therefore, affirm.
The parties to the will contest are well familiar with the exhaustive district court record, including a lengthy evidentiary hearing. Much of that material hasn't any direct bearing on the issues on appeal. We dispense with any effort to catalogue those proceedings before turning to what Everett claims as error. Everett's attacks on the will may be broadly characterized as either substantive challenges based on the meaning of the document and its efficacy or procedural challenges arising from ostensible flaws in the probate action. Before turning to the legal arguments, we outline some pertinent factual and procedural signposts in this case. We then take up the substantive challenges to the will followed by the procedural challenges.
Factual and Procedural Signposts
After a brief hospitalization, Beuford died on April 4, 2012. He was 84 years old. His surviving direct lineal descendants were Everett, Lisa, Angella, and two great-grandchildren. (The will and some court documents spell Angella's first name in the more common way as “Angella.” The double-l spelling, however, is correct.)
Twelve days after Beuford's death, a lawyer for the executor of the estate filed a petition to probate the 1992 will and begin the administration of the estate. As the appellate record reflects, the lawyer representing the executor contacted the district magistrate judge's office and set a hearing on the petition for May 14. No written request for a hearing date was filed, and no written order was entered confirming the hearing date. The lawyer mailed copies of the petition, the will with two codicils, and the notice of hearing to Everett and furnished copies to other interested parties, including Lisa and Angella. The lawyer also had the notice published in a local newspaper on April 19, April 26, and May 3, 2012. A copy of the published notice was filed with the district court 3 days before the hearing. The record does not reflect a written order of the district court directing how and to whom notice should be given.
Everett did not appear at the hearing on May 14. The district magistrate judge admitted the will to probate.
On June 25, 2012, Everett filed a petition to set aside the order admitting the will to probate, asserting an array of reasons. Shortly afterward, the lawyer for the executor filed an affidavit confirming proper service and publication of notice—a filing that should have been made before the May 14 hearing. The lawyer then withdrew from the case.
Everett's motion marked the first court skirmish as he battled Angella and Lisa over whether Beuford's will ought to be probated and, if so, how it disbursed the estate assets. With legal teams in tow, both sides undertook discovery, filed briefs, and otherwise jockeyed to advance their views on the will's viability.
In June 2013, the district court entered a lengthy written order rejecting Everett's procedural challenges—with one exception. The district court found that the will was not self-proving and no evidence had been submitted at the May 14, 2012, hearing from the witnesses to the will. The district court, therefore, set aside the district magistrate's order admitting the will to probate and scheduled a new hearing. At the new hearing, the district court reviewed affidavits from the witnesses to the will and other evidence and ruled the will to have been proved. The district court then entered a new order admitting the will to probate, subject to Everett's remaining challenges.The district court conducted a 2–day bench trial on those issues in mid-August 2013 and issued another lengthy written ruling in January 2014 rejecting Everett's contentions, finding the will to be enforceable, and directing the assets of the estate be distributed to Lisa and Angella. As we have indicated, the bulk of the testimony and other evidence at trial bore on issues Everett has not pursued on appeal in light of the district court's adverse factual findings. Everett has timely appealed other substantive and procedural points.Legal Analysis
1. Substantive Challenges to Beuford's Will
A. Construction of 1992 Will
Beuford's 1992 will consists of four double-spaced, typewritten pages, the last of which is taken up with the signatures and declarations of Beuford and two witnesses. The will calls for the payment of Beuford's debts and expenses with the rest of his estate to go to his wife. Beuford's wife died before he did. In that circumstance, the will expressly provides that the estate be equally divided between his granddaughters Angella and Lisa, who were then preteens.
The will further provides that the estate assets should be held in trust for Angella and Lisa, and as each turns 30 years old, she should receive half the estate. If either of them were to die before turning 30 years old, her share of the estate would go to her children or if she had no children to her surviving sister. If both Angella and Lisa were to die before turning 30 years old without having children, Beuford names a veterinarian in Emporia as his sole heir. The balance of the will concerns administration of the trust for the benefit of Angella and Lisa and identifies an executor of the estate. The will makes no mention of Everett.
Beuford executed two codicils to the will, the first in 1997 and the second in 2001. The codicils expressly refer to and ratify the 1992 will and name substitute trustees and executors. By the time Beuford died in 2012, Angella and Lisa had passed their 30th birthdays, so the will no longer imposed a trust on the estate assets. The will, however, did not contain a single, explicit description of how the estate should be handled or distributed if Beuford died after his granddaughters turned 30 years old.
Everett seizes on that omission to argue the will simply takes no account of that situation, and, therefore, the bequest must have been conditional on Beuford's dying before Angella and Lisa turned 30 years of age. In turn, Everett says because the condition failed—Beuford actually lived past both granddaughters' 30th birthdays—the bequest terminated, so the pertinent property (effectively the whole estate) should pass by intestate succession. If Beuford died intestate, his assets would go to Everett by operation of law as his only surviving child. K.S.A. 59–506. Angella and Lisa would receive nothing. Everett's position, however, runs counter to settled Kansas law.
The construction of a written instrument, including a will, presents a question of law when the document, analyzed in its entirety or to its four corners, contains no pertinent ambiguity. In re Estate of Cline, 258 Kan. 196, 199, 898 P.2d 643 (1995) ; In re Estate of Shoemaker, 22 Kan.App.2d 444, 446, 917 P.2d 897 (1996). If a survey of the will's language makes the testator's intent clear, the document is unambiguous and should be enforced consistent with that intent. In re Estate of Haneberg, 270 Kan. 365, 371, 14 P.3d 1088 (2000) ; In re Estate of Berryman, 226 Kan. 116, 118–19, 595 P.2d 1120 (1979) ; CoreFirst Bank & Trust v. Herrman, No. 106,708, –––Kan.App.2d ––––, 2012 WL 3822858, at *2 (Kan.App.2012) (unpublished opinion), rev. denied 298 Kan. 1201 (2013). The court need not look to rules of construction or outside evidence. In re Estate of Haneberg, 270 Kan. at 371, 14 P.3d 1088. Ultimately, “the primary function of the court is to ascertain the testator's intent from the four corners of the will and to carry out that intent if possible[.]” 270 Kan. at 372, 14 P.3d 1088. As a general matter, a will should be construed so as to avoid intestacy—hardly an astonishing proposition, since that's the purpose of a will. Parsons v. Smith, Trustee, 190 Kan. 569, 573, 376 P.2d 899 (1962) ; In re Estate of Crawshaw, 15 Kan.App.2d 273, 279, 806 P.2d 1014 (1991).
Applying those standards, especially the principle calling for a review of the entire will to discern intent and meaning, the district court correctly rejected Everett's argument. Even if both granddaughters died before age 30 without children, Beuford declared that his estate should go to a named third party—the Emporia veterinarian—rather than to Everett. Beuford's desire to disinherit Everett couldn't have been too much more obvious. Beuford wanted to cut his son out of the will itself (by not mentioning him) and out of his estate (by providing all of the assets be directed to other persons).
Often wills contain provisions explicitly leaving nothing to an identified relative or acquaintance who otherwise might be considered a natural recipient of a portion of the testator's estate. Such a clause succinctly states that intention and dispels any notion the individual had been inadvertently overlooked in the drafting of the will, especially when the testator included bequests, large and small, to numerous people of significance to him or her. But that's not the situation here. And no affirmative statement of disinheritance is required. See In re Estate of Randall, 167 Kan. 62, 66–67, 204 P.2d 699 (1949). There is no ambiguity about what Beuford intended to bequeath Everett—in a word, nothing. See In re Estate of Lester, 191 Kan. 83, 87, 379 P.2d 275 (1963) (disinheritance of relative may be found by “necessary implication” where language of will is such that a contrary intent could not be supposed).
In the same vein, looking at the four corners of the will, there can be no real question Beuford intended that Angella and Lisa share equally his estate if they survived him. The will might have been more direct if it had a specific clause stating Beuford meant for his granddaughters to take free of the trust if he lived to see them celebrate their 30th birthdays. But the omission didn't sink Beuford's intent in a wallow of ambiguity. There was neither a lack of clarity to the will nor an omission of a term critical to its operation if Beuford lived that long.
More to the point, as far as Everett's argument goes, the bequest was neither conditional nor did it become unenforceable in the absence of a specific clause encapsulating what the whole of the will established. The argument improperly blurs Beuford's testamentary intent that his granddaughters receive all of the estate assets to the exclusion of Everett with the trust Beuford imposed delaying his granddaughters' unrestricted access to the assets. The bequest was not conditional in the sense Angella and Lisa were to be divested of the estate property if Beuford lived past their 30th birthdays. Rather, in that circumstance, the limitation he imposed on their control of the estate property would become superfluous.
In other words, the creation of the trust and the detailed discussion of its operation in the will were not directions as to who should receive a portion of the estate but simply temporary restrictions on how the recipients—Angella and Lisa—could deal with the property should they be less than 30 years old. The intended recipients were indisputably apparent from the overall construction of the will. So if Angella and Lisa inherited under the will after they turned 30 years old, the trust would never become operational and, thus, could impose no condition or limitation on their use of their bequests.
Contrary to Everett's argument, nothing in the will suggests Beuford intended to divest Angella and Lisa of any inheritance should he still be alive after both of them turned 30 years old. Or, even more oddly, that he intended his will to be of no legal effect in that circumstance, meaning Everett would get everything by default. Endorsing Everett's position would contravene the rule of four-corners interpretation and ignore the presumption against intestacy. Moreover, intestacy in this case would not only violate that presumption, it would obliterate the clear intent of Beuford to leave everything to his living granddaughters to the exclusion of Everett. The point lacks merit.
Beuford did consult with a lawyer about changing the 1992 will after Angella and Lisa entered adulthood. The lawyer testified during the probate proceedings. According to the lawyer, as early as 2007, Beuford had discussed a new will that would have made comparatively modest bequests to Angella and Lisa, along with provisions covering the cost of college for their children. Beuford had also talked about a similarly modest bequest to Everett. The bulk of the estate ultimately would have gone to charity. The lawyer drafted another will and related trust documents along those lines in 2007 and delivered them to Beuford. She then prepared at least a couple of revised versions over the next several years. But Beuford never signed them and seemingly demonstrated no great urge to do so, suggesting some ambivalence about the changes and continued satisfaction with the 1992 will. The communications between Beuford and the lawyer have no legal significance in determining the validity or construction of the 1992 will. See K.S.A. 59–611 ; In re Estate of Rinker, 158 Kan. 406, 415, 147 P.2d 740 (1944) (To revoke a properly executed will, a later will must be “ ‘valid and effective in every particular.’ ”) (quoting Hill v. Kennedy, 134 Kan. 560, 564, 7 P.2d 88 [1932] ). What Beuford might have been contemplating in talks with the lawyer had no bearing on his testamentary intent in executing the 1992 will 15 years earlier—a will he left intact as his duly executed testamentary directive.
[1] Although Beuford's testamentary intent embodied in the 1992 will is clear, the will doesn't address what should happen if either or both granddaughters were to die before Beuford but after turning 30 years old. Those circumstances are not the facts of this case, and that hypothetical possibility doesn't diminish Beuford's intent. Rather, the will could have resulted in a lapsed bequest had the world taken such a turn. See In re Estate of Haneberg, 270 Kan. at 372, 14 P.3d 1088 (lapse occurs when person named as beneficiary dies before testator); 80 Am. Jur. 2d Wills § 1408 (circumstances resulting in lapse of bequest entail death of individual beneficiary or dissolution of corporate beneficiary rendering testamentary gift impossible). The Kansas anti-lapse statute would have substituted the children of the granddaughters as beneficiaries had either of them predeceased Beuford after turning 30 years old. K.S.A. 59–615(a). But Everett might have had an argument for taking through intestate succession based on lapse had Angella and Lisa died without children after turning 30 years old, since the will had no applicable residuary clause. See In re Estate of Haneberg, 270 Kan. at 373, 14 P.3d 1088. Because Angella and Lisa survived Beuford there was no lapse. As we have explained, the bequests to them were not conditional—Beuford plainly intended his granddaughters to share his estate if they survived him.
B. Superseding Will
For his second substantive challenge on appeal, Everett tries to conjure up a phantom 1997 will he says negated the 1992 will. During the probate proceeding, Lisa testified she found an envelope with the phrase “1997 will” written on it among Beuford's papers. Lisa said she did not open the envelope and gave it to the lawyer representing the executor of the estate. The lawyer testified she did not recall receiving the envelope and was unaware of any superseding will.To support his argument, Everett offers a chain of inferences that goes this way:
The envelope had “1997 will” written on it. The envelope must have had something in it, and that something must have been a will executed in 1997. The 1997 will would have revoked the 1992 will. Nobody has offered the 1997 will for probate. So Beuford died intestate.
But the links of the chain have been constructed of speculation rather than facts and evidence. And, as such, the argument reflects a classic example of impermissible inference stacking. See State v. Rice, 261 Kan. 567, 586, 932 P.2d 981 (1997) (“ ‘Presumption and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference.’ ”) (quoting State v. Doyle, 201 Kan. 469, 488, 441 P.2d 846 [1968] ); Estate of Vredenburg v. National Catastrophe Restoration, Inc., No. 90,974, ––– Kan.App.2d ––––, ––––, 2005 WL 1561032, at *3 (Kan.App.) (unpublished opinion), rev. denied 280 Kan. 982 (2005). The existence of a 1997 will cannot be assumed from testimony that an envelope bore writing identifying the unknown contents to be such a document. (The evidence actually requires a preliminary inference the envelope contained a document and wasn't empty. But it may be reasonable to infer that a sealed envelope holds something.)
The envelope, of course, easily could have been mislabeled. Here, there is strong circumstantial evidence to that effect. As we have noted, Everett produced no direct evidence of a 1997 will—somebody who had seen it—or corroborating circumstantial evidence—somebody who had heard Beuford speak of it. Very possibly the envelope contained the 1997 codicil to the 1992 will, thereby accounting for the imprecise and technically inaccurate label. The 2001 codicil offers a compelling refutation of Everett's venture into nearly boundless theorizing. That codicil expressly reaffirmed Beuford's 1992 will and, rather conspicuously for these purposes, makes no mention of a 1997 will. So the existence of a 1997 will looks to be Everett's chimera or, in legal terms, an impermissible inference.
Even if it were permissible to infer the envelope contained a will Beuford executed in 1997 (a proposition we doubt), that alone would not carry the day for Everett. A later will does not automatically revoke an earlier will. Revocation requires either an explicit statement to that effect in the later will or so material a conflict in the terms of the two documents that the testator necessarily must have intended to revoke the earlier one. Boucek v. Boucek, 297 Kan. 865, 874–75, 305 P.3d 597 (2013) ; In re Estate of Rinker, 158 Kan. at 415–16, 147 P.2d 740. Wills executed at different times may be taken together to reflect the testator's intent if they are compatible rather than contradictory. 158 Kan. at 415–16, 147 P.2d 740. To say the elusive 1997 will included language revoking the 1992 will either explicitly or by implication of operation would impermissibly pyramid an inference on an inference. Surmising the precise content of a 1997 will nobody saw or heard about—a document the very existence of which is merely an inference—goes way too far. In turn, Everett's argument doesn't go nearly far enough to invalidate Beuford's 1992 will.
2. Procedural Challenges to Probating Beuford's Will
Everett asserts that deficient procedures in the district court kept Beuford's will from being timely or otherwise properly admitted for probate, preventing the district court from giving the document legal effect. Were that true, Beuford's estate would pass by intestate succession to the otherwise disinherited Everett. The district court turned aside those procedural challenges. Although the procedural arguments Everett has reprised on appeal have not been framed with precision, they share a common denominator—none of them warrants relief.
A. Lack of Order Confirming Hearing Date Imposes No Bar
Everett first contends the district court erred in allowing Beuford's will to be probated because the lawyer filing the petition on behalf of the executor never obtained an order from the district court confirming the May 14 hearing date. We perceive no disputed facts related to the contention. There was no order. The legal implications of the settled factual circumstances require interpretation of the probate code and present attendant questions of law. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010)(statutory interpretation question of law); Estate of Belden v. Brown County, 46 Kan.App.2d 247, 258–59, 261 P.3d 943 (2011) (legal effect of undisputed facts question of law). We answer those questions without any particular deference to the district court. Arnett, 290 Kan. at 47, 223 P.3d 780 ; Estate of Belden, 46 Kan.App.2d at 258–59, 261 P.3d 943.
(1) Filing Petition to Probate Will Sufficient to Avoid Time Bar
Everett characterizes the absence of a separate written order establishing the hearing date for a petition to admit a will to probate as a jurisdictional defect negating the district court's authority to do anything. District courts are statutorily vested with subject matter jurisdiction over probate proceedings, and the absence of an order setting a hearing date for any sort of petition would not strip away that jurisdiction. See K.S.A. 20–301 ; In re Estate of Heiman, 44 Kan.App.2d 764, 766–67, 241 P.3d 161 (2010). Everett's argument really goes to whether the petition properly presented the will for probate within 6 months after Beuford's death. As provided in K.S.A. 59–617, a will won't be enforced if it is filed in the district court more than 6 months after its author has died. As we discuss, the plain language of K.S.A. 59–617 undoes Everett's argument, since filing is sufficient to meet the deadline. The petition, of course, was filed less than 2 weeks after Beuford died.
Essentially, Everett argues that a petition to probate a will must satisfy the requirements of K.S.A. 59–2204 to be timely, and he says those requirements demand both the filing of the petition and a district court order confirming the hearing date for the petition. As we explain, he is wrong all the way around. Under the current probate code, K.S.A. 59–617 governs the timely filing of a petition to probate a will. Even if K.S.A. 59–2204 were applicable, it does not require a district court order confirming a hearing date.
As the foundation for his argument, Everett relies on In re Estate of Reed, 157 Kan. 602, 612–13, 142 P.2d 824, 831 (1943), and In re Estate of Thompson, 24 Kan.App.2d 321, 323, 944 P.2d 732, rev. denied 263 Kan. 886 (1997). But Reed considered an earlier and materially different version of K.S.A. 59–617, so the case no longer has precedential weight. Neal v. United States, 516 U.S. 284, 295–96, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) (force of precedent or stare decisis construing statute undercut when legislative body later materially changes statutory language); Firstar Bank, N.A. v. Faul, 253 F.3d 982, 989 (7th Cir.2001) (court should apply stare decisis and adhere to precedential decisions unless “subsequent statutory changes ... have rendered them infirm”). And Thompson simply made a mechanical and, thus, mistaken application of Reed without mentioning or appreciating the intervening change in K.S.A. 59–617. In re Estate of Thompson, 24 Kan.App.2d at 322–23, 944 P.2d 732.
[2] The ruling in Thompson, endorsing Reed, does not itself impose a precedential barrier for us, since one panel of this court is not bound by a published decision of another panel. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010) ; Osterhaus v. Toth, 39 Kan.App.2d 999, 1008, 187 P.3d 126 (2008), aff'd 291 Kan. 759, 249 P.3d 888 (2011).
To frame the proper interpretation of the present version of K.S.A. 59–617, we first outline the governing principles of statutory construction and then consider the language of that statute as an integrated part of the Kansas Probate Code. In construing a comprehensive statutory scheme such as the probate code, an appellate court must, as a first priority, strive to honor the legislative intent and purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). The court should look initially to the words of the statutes to discern legislative intent. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725–26, 317 P.3d 70 (2014). If particular language is open to more than one reasonable interpretation, a court may consider the overall statutory purpose and favor a reading that comes to a “consistent, harmonious, and sensible” result effectuating that purpose. In re Marriage of Traster, 301 Kan. at 98, 339 P.3d 778 ; see John M. Denman Oil Co., Inc. v. Kansas Corporation Comm'n, 51 Kan.App.2d 98, 104, 342 P.3d 958 (2015) (statute reasonably construed to impose joint and several liability on parties responsible for plugged or abandoned oil wells as “support[ing] the obvious statutory purpose of avoiding [water] pollution”). Judicial interpretation should not add something to the statutory language or take away something already there. Casco v. Armour Swift–Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). A court, of course, may also deploy those analytical tools to debunk a suggested interpretation of a statute as improbable, particularly when the suggestion would undermine legislative purpose.
The overarching purpose of probate law—and the Kansas Probate Code—is to promptly marshal the assets and liabilities of a dead person with the aim of paying any legitimate debts and distributing what's left in accordance with the wishes of that person as expressed in a properly executed will or, in the absence of a will, by a statutorily prescribed formula to surviving heirs. The law, then, intends to provide an orderly and timely accounting of the deceased's financial affairs culminating in the disbursal of assets. See In re Estate of Beason, 248 Kan. 803, 811, 811 P.2d 848 (1991) ; In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879 (1948). To accomplish that objective, the law places a premium on honoring the declared desire of the deceased as to how his or her net assets be distributed, whether to close relatives, dear acquaintances, or distant charities. In re Estate of Blank, 182 Kan. 426, 431, 320 P.2d 775 (1958) (intention of testator, as expressed in will, must prevail “ ‘consistent with the rules of law’ ”) (quoting In re Estate of Schnack, 155 Kan. 861, Syl. ¶ 2, 130 P.2d 591 [1942] ). The process need not be contentious, although, as Everett reminds us in his briefing and by his actions, it may turn adversarial when the representative of an estate disputes asserted debts or when expectant legatees challenge a will they perceive as indecorously slighting them financially.
As provided in the probate code, any “application in a probate proceeding” for district court action must be made “by petition” unless presented orally during a hearing. K.S.A. 59–2201. In turn, a probate proceeding is “commenced ... by filing a petition and causing it to be set for hearing.” K.S.A. 59–2204. And “[w]hen a petition is filed, the court shall fix the time and place for the hearing on it.” K.S.A. 59–2204. Under the probate code, a district court has a range of options in ordering how notice should be given to interested parties and others who potentially may have some stake in or claim against estate assets. K.S.A. 59–2208 (general notice provision requires that “the court shall order notice be given ... in such manner and for such length of time as the court considers reasonable”); K.S.A. 59–2209 (governing notice by publication and by mail to designated parties when ordered by court or required by statute and directing publication for 3 consecutive weeks beginning within 10 days after “the order fixing the time and place of the hearing”). Those statutes form the procedural skeleton for handling probate petitions generally.