Opinion
No. 116,333
03-31-2017
In the MATTER OF the ESTATE OF Ray V. OROKE, Deceased.
Michael Jilka, of Nichols Jilka LLP, of Lawrence, for appellant. Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer, of Topeka, and Bruce H. Hanson, of Oskaloosa, for appellee.
Michael Jilka, of Nichols Jilka LLP, of Lawrence, for appellant.
Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer, of Topeka, and Bruce H. Hanson, of Oskaloosa, for appellee.
Before Arnold–Burger, C.J., Buser and Powell, JJ.
MEMORANDUM OPINION
Per Curiam:
Unless a person who has possession or knowledge of a will "knowingly withholds it from the district court having jurisdiction to probate it," a will must be submitted to probate within 6 months of the testator's death in order to effectually pass any property under it. K.S.A. 59–617 and K.S.A. 59–618. Ray V. Oroke died testate; however, his will was not found or submitted for probate until almost a year after his death—despite timely efforts to locate it. When it was finally found in the possession of the Jefferson County District Court, his stepdaughter filed a petition to probate the will and a motion asking the district court to stop the intestate administration of Oroke's estate. The district court admitted the will and granted the motion, finding that the 6–month statute of limitations of K.S.A. 59–617 was tolled during the period of time the district court was unknowingly in possession of the document. Because our Supreme Court has refused to extend the statute's exception to the 6–month filing requirement to situations in which the will is simply lost or misplaced, we also decline to do so here. Accordingly, the exception does not apply to the situation in which the district court simply misplaced the will, and the decision of the district court is reversed, and the case remanded to proceed with the intestate administration of Oroke's estate.
FACTUAL AND PROCEDURAL HISTORY
Prior to his death, Oroke informed his stepdaughter, Donna Fairbanks, that his will was located in a bank safety deposit and/or at the Jefferson County Courthouse. After his death in October 2014, Oroke's daughter Karen Barney, her two children, and Fairbanks went in search of Oroke's will. They first went to McClouth Bank and checked for the will in Oroke's safety deposit box. The will was not in the box, but it did contain an unsigned codicil.
The group then went to the Jefferson County Courthouse to see if the will was on file there. They initially contacted the clerk's office and inquired about the will. The woman who was at the desk did not know anything about will storage, so she left briefly to check with someone else in the office. When she returned, she told the group that they used to keep wills on file but did not any longer. She speculated that the recorder of deeds may still keep wills, so the group checked with that office. The person working in the recorder of deeds office looked around but could not find an index of wills. In addition to the bank and courthouse, Fairbanks and Barney's daughter looked through Oroke's home for his will and checked with his attorney to see if he had it.
Because they had not found the will, Barney filed a petition for intestate administration of Oroke's estate in March 2015. Although Fairbanks was somewhat unclear on the timing, it appears that in September 2015, she hired an attorney to try to find Oroke's will. Within a week, the attorney was able to locate the will among the files of the Probate Court of Jefferson County. Fairbanks then filed a petition to terminate the intestate administration and admit the will to probate, 11 months after Oroke's death.
After a hearing, the district court admitted the will to probate. The district court concluded:
"[Fairbanks and Barney's children] made inquiry of the Clerk of the District Court as to the Will and Codicil and were mistakenly advised that the Court did not have the Will or Codicil on file.
"5. The Court concludes that the error of the Court should not be imputed to one or more of the heirs so as to prohibit the admission of the Will and Codicil to probate .... To permit an error of the Court made by inadvertence or mistake to prevent admission of the Will would undermine the concept of having the testator's intent carried out.
"6. Due diligence was exercised by the executors named in the Will and the heirs to locate the will.
"7. The effect of the error of the Court is to toll the six months limitation on filing the Will and the Court finds that filing the Will within six months of its location is timely under K.S.A. 59–617 under the unusual circumstances of the mistake of the Court found in this action."
Barney now appeals.
ANALYSIS
Barney argues that the district court erred when it concluded that the time for filing Oroke's will was tolled during the months that the Jefferson County Court, unbeknownst to anyone there, was in possession of the will. To answer the question of whether the district court erred requires this court to interpret K.S.A. 59–617 and K.S.A. 59–618. As a result, this court's review of the district court's decision is unlimited. See Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015) (interpretation of a statute is a question of law over which appellate courts have unlimited review).
K.S.A. 59–617 creates a 6–month statute of limitations after the death of a testator to probate his or her will, "except as hereinafter provided." One exception provides for the admission of a will to probate more than 6–months after the death of a testator if a person who has possession or knowledge of the will "knowingly withholds it from the district court having jurisdiction to probate it." K.S.A. 59–618.
Our Supreme Court recently had an opportunity to review the K.S.A. 59–618 exception in In re Estate of Strader , 301 Kan. 50, 339 P.3d 769 (2014). The court expressly declined to extend the exception to facts quite similar to those at issue here. There, after Betty Jo Strader died, her family began searching for her will. One of the places they looked was at the law firm that succeeded the firm that had prepared Strader's will years before: Galloway, Weigers, and Brinegar, P.A. (Galloway). An executed copy of the will was not found, and intestate proceedings were initiated to dispose of Strader's estate. Over 4 years after Strader's death, but prior to the public auction at which the estate's property was to be sold, an attorney from Galloway contacted the administrator of the estate and informed him that Strader's will had been found during a review of old files. At that point, one of Strader's sons filed a petition to probate the will. Even though Strader's will had been lost by the firm rather than knowingly withheld, the district court concluded that admission was appropriate because the intent of the legislature in enacting K.S.A. 59–618 was to protect innocent beneficiaries by allowing them to seek probate of wills after the 6–month time limit.
On appeal, a divided panel of this court affirmed the district court. 301 Kan. at 54. Our Supreme Court then reversed, concluding that "[u]nder [a] plain reading, a will that has not been knowingly withheld from probate, e.g. , a will that simply has been lost or misplaced, is not admissible under K.S.A. 59–618 after the 6–month time limit in K.S.A. 59–617 has expired." 301 Kan. at 57. The Supreme Court disproved of any interpretations of K.S.A. 59–618 that would create additional exceptions for untimely admission of wills, including an exception for wills carelessly withheld from probate. 301 Kan. at 60.
Fairbanks makes two arguments for affirming the district court. First, she argues that the harm that will occur if this court reverses the district court is the exact harm—denial of a valid will to probate—that K.S.A. 59–618 seeks to prevent so the tolling provision should be extended to this situation. Since there is no difference between the impact on the intent of the testator and beneficiaries in situations where a will is concealed maliciously and one in which it is concealed mistakenly, Fairbanks contends that the outcome in both cases should be the same. Alternatively, Fairbanks attempts to distinguish this case from In re Strader based on the fact that it was the district court that was in possession of Oroke's will. Fairbanks argues that since the clerk of the court had a statutory duty to keep Oroke's will and produce it upon his death, knowledge that the will was in the court's possession should have been imputed to the clerk so that her failure to produce it amounted to "knowingly withhold[ing]" it. She argues that this distinction is significant and mandates a different outcome than In re Strader where it was a mere law firm that unknowingly had possession of the decedent's will.
Both of Fairbanks' arguments must fail for the same reason—in order for K.S.A. 59–618 to toll the time for filing a will, someone must have knowingly withheld it from probate. K.S.A. 59–618. To extend K.S.A. 59–618 to situations in which a will is mistakenly withheld is to read something into the statute that does not readily appear on its face. Where a statute is plain and unambiguous, this court should not speculate about the legislative intent behind the clear language, nor should it read anything into the statute that is not readily found in its words. Cady v. Schroll , 298 Kan. 731, 738–39, 317 P.3d 90 (2014). While Fairbanks makes an interesting argument regarding imputing knowledge and malfeasance based on the fact that the district court was in possession of Oroke's will, accepting this argument would require this court to read an additional exception into the statute.
Even if the statute is considered ambiguous, our Supreme Court has expressly declined to extend the application of K.S.A. 59–618 to situations in which a will is mistakenly withheld. Strader , 301 Kan. at 57. This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Belone , 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). The Strader opinion was issued less than 3 years ago, and since that time there has been no indication that the Kansas Supreme Court would decide a similar case in a different fashion.
The facts of this case are indistinguishable from In re Strader in any meaningful way that would allow a departure from the precedent set there. In both cases a valid will existed and was stored with a responsible party that should have been able to produce it upon the death of the testator. In both cases, the will was seemingly misplaced and not located until after the 6–month period for probating the will had expired. Nevertheless, in both cases the district court admitted the will reasoning that doing so was the best way to ensure that the desires of the testator were upheld. The distinction between a law firm possessing the will and the district court possessing the will is insufficiently significant to reach a different outcome here.
The district court's decision to admit Oroke's will to probate is reversed, and the case remanded for further intestate proceedings.
Reversed and remanded for further proceedings.