In re Estate of Farr

• Decision Date: 12 July 2002
• Docket Number: No. 86,349.,86,349.
• Citation: 274 Kan. 51,49 P.3d 415
• Parties: In the Matter of the Estate of JAMES W. FARR, Deceased.
• Court: Kansas Supreme Court

274 Kan. 51

49 P.3d 415

In the Matter of the Estate of JAMES W. FARR, Deceased.

No. 86,349.

Supreme Court of Kansas.

Opinion filed July 12, 2002.

Keith Martin, of Smith, Shay, Farmer & Wetta, of Wichita, argued the cause, and Faith A. J. Maughan, of the same firm, was with him on the brief for appellants Suzette Hickey and Janell Rangel.

John Ray Shirley, of Wallace, Brantley & Shirley, of Scott City, argued the cause for appellees and was on the brief for appellee Marvin J. Farr; Gerald O. Schultz, of Garden City, was on the brief for appellee Howard Farr.

The opinion of the court was delivered by

LOCKETT, J.:

This is an appeal from the district court's order admitting a will to probate. The two opponents to the will, Suzette Hickey and Janell Rangel, were the decedent's heirs at law but were not named as beneficiaries in his will. The opponents claim the district court erred in finding (1) the will was executed with testamentary formalities; (2) the opponents to the will must show lack of testamentary capacity by clear, satisfactory, and convincing evidence; (3) the decedent possessed testamentary capacity; (4) the will was not the product of undue influence; and (5) the opponents saw the deceased no more than three times each during the last 8 years of decedent's life.

James W. Farr died November 29, 1999, at Terrace Garden Care Center (Terrace Garden), an intermediate care facility, where he had been a resident since October 9, 1996. The cause of death was listed as "severe progressive dementia." Farr was survived by his two sons, Marvin and Howard, and two granddaughters, Suzette and Janell, daughters of Farr's deceased son Everett. Farr was described as "stubborn, hard-headed, and sometimes difficult," and the type of person that would tell you if he was upset with you.

A petition to submit Farr's will to probate was filed December 6, 1999. The will had been executed on July 2, 1997, named Marvin as executor of the estate, and devised and bequeathed the entire estate to Marvin and Howard equally. The will contained no provision regarding Everett or Everett's daughters. Suzette and Janell objected to the admission of the will to probate, claiming the will was not properly executed and that Farr either lacked testamentary capacity or was under undue influence in executing the will. A 2day bench trial was held.

At trial, Keen Brantley, Farr's attorney of nearly 30 years and scrivener of the will, testified that the 1997 will was an exact duplicate of Farr's 1991 will, which had been lost. Brantley recalled that the 1991 will was drafted shortly after Farr's wife died intestate, named Marvin as the executor, and devised all the property to Marvin and Howard in equal shares.

After his wife's death in 1990, Farr discovered that land he believed was held in joint tenancy with his wife was not so held and that half of his wife's interest in the property would pass to her heirs at law. Farr requested, via a letter by Brantley, that Marvin, Howard, Suzette, and Janell quitclaim their interest to him. Brantley testified Farr was upset when one of the opponents to the will conditioned conveyance upon the other heirs conveying their interest and the other opponent indicated she did not want to convey the property. Brantley's letter to the heirs indicated that the deeds would be returned if any of the heirs did not agree to the quitclaim. Brantley informed Farr that Marvin and Howard had agreed to convey the property. Marvin and Howard never deeded the property back to Farr.

In 1996, prior to Farr moving into Terrace Garden, Farr notified Brantley on at least two occasions that he was unable to locate the 1991 will. Brantley explained to Farr on each occasion that he could draw up another will with the same provisions and that Farr could reexecute it. Shortly after Farr moved to Terrace Garden, Farr again contacted Brantley about the missing will. During that conversation, Farr requested that Brantley draft another will just like his previous will. Later, Brantley received a call from an unknown woman at Terrace Garden who claimed to be calling at Farr's request and who inquired as to the progress on Farr's will. Brantley recalls having the copy of the 1991 will in his office when the 1997 will was drafted and that someone in his office had merely retyped the provisions of the 1991 will. Brantley was unable to produce a copy of the 1991 will or any documents to show the 1991 will ever existed.

On July 2, 1997, Brantley went to Terrace Garden to execute the will. Brantley testified that after engaging in some small talk with Farr, he gave a copy of the will to Farr and read the will aloud to him. Harriet Kretzschmar, the director of nursing at Terrace Garden, was present when Brantley read the will to Farr.

Brantley testified that Farr identified, in the presence of Harriet and Christine Pokorney, a registered nurse, that he owned farmland, machinery, cash investments, a home in Scott City, and an oil well; said that he was leaving his property to Marvin and Howard; and indicated he was ready to sign the will when asked. Farr had failed to mention that he owned a tavern and a modular home. Harriet also testified that Farr identified Marvin and Howard as being his children and that he had identified some of his property; however, the property identified differed somewhat from Brantley's testimony.

Christine testified at her deposition, which was admitted into evidence at trial, that Brantley had asked Farr who he was leaving his property to and what property he had, that Brantley told Farr that his two sons were mentioned in the will and listed off the property Farr owned, and that Farr responded affirmatively by shaking his head. Christine did not recall Farr having made any audible responses to Brantley's questions. During cross-examination, Christine admitted that it was possible Farr had named his property and his children, but testified she did not remember. She stated that Farr's main concern was that this new will was like his prior will. Brantley had assured Farr that this will was just like his prior will.

Farr signed the will in the presence of Brantley and the subscribing witnesses, Harriet and Christine. During the execution of the will there was no mention of Farr's granddaughters.

As for Farr's state of mind on July 2, 1997, Brantley testified that Farr recognized him, there was no indication Farr was unaware of what he was doing, and there was no indication that Farr did not sign the will freely and voluntarily. Brantley estimated that he has participated in drafting and executing over 1,000 wills.

Harriet, who saw Farr daily, believed Farr responded appropriately to the questions and conversations with Brantley and testified she did not doubt Farr willingly signed the will. She testified that Farr always recognized her, Marvin, and Lottie Farr, Marvin's wife.

Christine, who saw Farr approximately four times during the 6 months before the will was executed and had only visited with him briefly, testified that Farr did not seem confused at any of these visits. She testified that at the time the will was executed, Farr was not confused, his mood was appropriate, and he was alert and seemed to understand what was happening.

Up until the summer of 1996, Mary Lawrence was Farr's home nurse 14 hours a day, 7 days a week, for 3½ years. During her employment, she observed Marvin visit daily and Suzette visit twice, but testified Howard and Janell never visited. Mary testified that Farr had told her that his granddaughters would not be left anything because they never came to visit him.

Janell has resided in Colorado since she was a child. Janell and her husband Roman testified Janell's grandmother's property was quitclaimed to Farr as he had requested and denied that they put any condition on the deed. They claimed that it was not until 1996 that they discovered Janell still owned the property. Janell visited Farr almost every summer and at least one holiday a year prior to her grandmother's death in 1990. After their marriage in 1990, at which Farr was a participant, Janell and Roman visited Farr on four occasions, the last visit being at the hospital in October 1996. At this last visit, Farr recognized Janell but did not recognize Roman. In the times they have seen Farr since Janell's grandmother's death, Farr did not seem angry or more distant and the visits were good. At the reading of the will, Brantley indicated to Janell that she and Suzette had been left out of the will because they did not convey the land to Farr as Farr had requested.

Suzette has lived in Oregon since 1996. She testified that after Brantley sent the letter about conveying her grandmother's land to Farr, she spoke with Brantley. Brantley indicated to Suzette that she was in Farr's will and that she should convey the land in order to avoid upsetting Farr. At that time, Brantley told her that he was unsure whether Howard would quitclaim the land to Farr, so Suzette decided to wait and see what the others were doing. Suzette heard nothing further about the matter. Brantley denies having ever told Suzette or Janell that they were in Farr's will, instead recalling that he had told one of the them that Farr was upset with them and that it would be shortsighted of them not to convey the land. Suzette lived with Farr for nearly 3 years prior to her grandmother's death and for a 3- to 4-month period after her death, ultimately moving out because Farr was too emotional and had mood swings. Suzette last saw Farr in October 1999 at Terrace Garden. At that time Farr was confused and was unable to carry on a conversation. Howard told Suzette of an incident when Farr had been unable to recognize his (Farr's) sister. Farr never expressed any anger towards Suzette during any of their conversations since her grandmother's death.

Joan Scofield, Suzette and Janell's mother, was married to Farr's son Everett for 7½ years before...