In re Estate of Rickabaugh

• Decision Date: 11 September 2015
• Docket Number: 111,389.
• Citation: 51 Kan.App.2d 902,358 P.3d 859
• Parties: In the Matter of the ESTATE OF Beuford W. RICKABAUGH a/k/a B.W. Rickabaugh, Deceased.
• Court: Kansas Court of Appeals

51 Kan.App.2d 902

358 P.3d 859

In the Matter of the ESTATE OF Beuford W. RICKABAUGH a/k/a B.W. Rickabaugh, Deceased.

111,389.

Court of Appeals of Kansas.

Sept. 11, 2015.

Review Granted Feb. 18, 2016.

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...