Late Probate in Kansas
Avis A. Tracy, the deceased, was thought to have died intestate. However, the co-administrators of the estate, Tracy’s sister and niece, discovered a will three days after the six month statute of limitations for admitting a will to probate in Kansas. Under the will, Sallie Shore was appointed executor.
On March 9, 2004, the coadministrators filed an amended petition to probate Tracy’s will and for the issuance of letters testamentary. This petition stated that Tracy’s will had been discovered on February 24, 2004. According to the affidavit of mailing in the record on appeal, notice of the petition to probate the will was sent to Tracy’s sister, four nieces, and two nephews. No notice was sent to Shore or the First Christian Church, the beneficiary in Tracy’s will.
On February 23, 2005, Shore also filed a petition to probate the will, stating that the will had been “withheld from probate by the actions of the deceased scrivener, who stored the will in an envelope with old, canceled checks and bank statements.” Shore stated she “had access to the will for less than 90 days,” arguing that it should be admitted pursuant to K.S.A. 59-618. No one disputes Shore’s statement that she had access to the will for less than 90 days. The will left the balance of Tracy’s estate to Shore, as trustee for the First Christian Church in Wellington, Kansas.
On February 23, 2005, Shore also filed a petition to probate the will, stating that the will had been “withheld from probate by the actions of the deceased scrivener, who stored the will in an envelope with old, canceled checks and bank statements.” Shore stated she “had access to the will for less than 90 days,” arguing that it should be admitted pursuant to K.S.A. 59-618. No one disputes Shore’s statement that she had access to the will for less than 90 days. The will left the balance of Tracy’s estate to Shore, as trustee for the First Christian Church in Wellington, Kansas.
The district court denied probate of the will, saying K.S.A. 59-618 did not apply. Based on the words of the statute, it said that “the wrongdoing of someone who has possession and knowingly withholds a will from probate was a condition which permitted an innocent beneficiary to submit a will to probate beyond the 6-month time limit.” It said the scrivener in this case did not have possession or knowingly withhold the will, and hence the statute did not apply. However, the Court of Appeals of Kansas did not agree with this interpretation.
The district court’s interpretation of K.S.A. 59-618 is contrary to the underlying intent of the probate code, particularly under the facts of this case; the will was found with the deceased scrivener’s papers within a few days after the 6-month limitation period, Shore’s petition to probate the will stated that she “had access to the will for less than 90 days,” and the coadministrators also petitioned the district court to probate the will. We believe that the language of K.S.A. 59-618, along with the stated intent of the probate code to probate legally executed wills, allows probate of Tracy’s will. This case is reversed and remanded to the district court with directions to admit the will to probate.
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