Estate of Day, Matter of
| Decision Date | 05 May 1988 |
| Docket Number | No. 60569,60569 |
| Citation | 12 Kan.App.2d 668,753 P.2d 1296 |
| Parties | In the Matter of the ESTATE OF B.H. DAY, Deceased. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. A presumption arises that a will which is known to be in the testator's possession but cannot be located after his death has been revoked.
2. If the presumption that the testator's intent to revoke is rebutted, the will is deemed lost, and a copy of the last will may be admitted to probate if the provisions of K.S.A. 59-2228 are satisfied. If the presumption is not overcome, probate of the will is denied on the basis of the inferred intent to revoke.
3. When a codicil is in existence, all facts concerning the codicil's continued existence can be considered in making a factual determination as to whether the presumption of revocation of the will is overcome.
4. In an appeal from an order admitting an unexecuted copy of a will to probate, it is held: The proponents of the unexecuted copy of the will did not present sufficient evidence as a matter of law to overcome the presumption of revocation.
James J. McGannon, of Regan & McGannon, Wichita, for appellant.
W.J. Fitzpatrick, Independence, for appellee.
Before ABBOTT, C.J., ELLIOTT, J., and THEODORE B. ICE, District Judge, assigned.
Tom Day appeals from the order admitting an unexecuted copy of B.H. Day's will to probate and the appointment of Crane Day as executor of the estate.
Crane Day, Howard Day, and Tom Day are the sons and only heirs-at-law of their father, B.H. Day. B.H. Day executed a will on December 10, 1979. Evidence is strong that the will was placed in B.H.'s safety deposit box. Crane and Howard had access to the box. Tom did not. The will and a subsequently executed codicil, combined, are more favorable to Crane and Howard than to Tom; thus, it would be to their benefit that the will not be destroyed.
On June 3, 1985, B.H. executed a codicil to the December 10, 1979, will which set forth a specific deduction for advancements made to Tom and divided that amount between Crane and Howard, and changed a gift of two quarters of land from Howard to Tom. The original of the codicil was retained in the office of the lawyer who drafted it.
On April 29, 1986, B.H. executed a living trust instrument that was prepared by an Oklahoma lawyer and transferred most of his assets to that trust. A separate lawsuit is pending concerning the validity of that trust, and apparently that suit is awaiting the outcome of this appeal. It appears to us there are few assets to pass by the will if the trust is valid.
Evidence was introduced that the executed will was observed in the safety deposit box during the summer before the trust instrument was executed. The last entry on the bank's record of visits to the safety deposit box is that of B.H., made on the day the trust instrument was executed. After B.H.'s death, the safety deposit box was opened, and it was empty. The executed will was not produced, and no direct explanation of what happened to it was offered. The trust instrument did not invalidate the will.
The trial court held that the proof of a codicil to a will establishes the will without further proof if the codicil clearly and unmistakably refers to the will so as to prevent all doubts of its identity, citing 80 Am.Jur.2d, Wills § 1004.
Tom Day argues that the trial court did not apply the presumption that a will known to be in the testator's possession which cannot be located after the testator's death has been revoked. In re Estate of Mettee, 10 Kan.App.2d 184, 694 P.2d 1325, aff'd 237 Kan. 652, 702 P.2d 1381 (1985).
The trial court, in admitting the unsigned copy of the will, based its decision on K.S.A. 59-2228 and 80 Am.Jur.2d, Wills § 1004. K.S.A. 59-2228 provides: "A lost or destroyed will may be established if its provisions are clearly and distinctly proved." 80 Am.Jur.2d, Wills § 1004 states that proof of a codicil establishes a will if the codicil clearly and unmistakably refers to the will.
The application of K.S.A. 59-2228, with the common-law presumption, was addressed in Mettee. The court stated that the presumption of revocation and proof of a lost will were two distinct issues. The court held: Mettee, 10 Kan.App.2d at 187, 694 P.2d 1325.
Accordingly, we must first determine whether the presumption applies. Although the record discloses the trial court's discussion of the effect of the codicil upon the presumption, there was no such determination in the journal entry. Furthermore, the cases underlying the general rule of 80 Am.Jur.2d, Wills § 1004 do not relate to the case at hand.
In Mettee, the common-law presumption of revocation if an original will cannot be located after the testator's death was reaffirmed by the Supreme Court. In re Estate of Mettee, 237 Kan. 652, 702 P.2d 1381. There, the testator executed the original will and two photocopies with the required formalities. After the testator's death, the original could not be located. The proponent attempted to admit the executed copy of the will to probate. The court held that the presumption of revocation must be rebutted in order to admit the will to probate. The will was denied probate.
There are no Kansas cases addressing the effect of a codicil upon the presumption of revocation. Other jurisdictions which have considered this issue report different conclusions. Some courts have held that an original codicil rebuts the presumption of revocation. In In re Smith Estate, 145 Mich.App. 634, 378 N.W.2d 555 (1985), appeal denied 424 Mich. 904 (1986), a copy of the will and the original codicil were admitted to probate. The court stated that under Michigan statutes a codicil is deemed an independent testamentary instrument. 145 Mich.App. at 638, 378 N.W.2d 555. In In re Estate of Kuszmaul, 491...
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