In re Estate of Oroke

Decision Date02 August 2019
Docket NumberNo. 116,333,116,333
Citation445 P.3d 742
Parties In the MATTER OF the ESTATE OF Ray V. OROKE
CourtKansas Supreme Court

Michael Jilka, of Nichols Jilka LLP, of Lawrence, argued the cause and was on the briefs for appellant Karen Barney.

Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, argued the cause, and Bruce H. Hanson, of Oskaloosa, was with him on the briefs for appellee Donna Fairbanks.

The opinion of the court was delivered by Malone, J.:

A testator deposited his original will and a codicil with the probate court of his home county as permitted by statute. The statute mandated the district court to retain the will during the lifetime of the testator and to open the will publicly and retain the same upon being notified of the testator's death. K.S.A. 59-620 (Furse 1994).

A few weeks after the testator's death, heirs tried to locate the will at the courthouse. The clerk of the court was unable to find it and informed the heirs that the will was not in the custody of the court. The heirs searched for the will at other locations to no avail. Eventually, the testator's daughter filed an intestate probate proceeding. While the intestate proceeding was pending, and after the limitation period for petitioning a will for probate had passed, the clerk of the court located the will and codicil among the files of the probate court.

The testator's stepdaughter filed a separate petition to probate the will. The district court consolidated the two probate proceedings and admitted the will to probate. The testator's daughter appealed. The Court of Appeals reversed the ruling of the district court, citing statutory language limiting the circumstances that toll the limitation period and caselaw by this court interpreting these provisions. This court granted the stepdaughter's petition for review.

After oral argument before this court, the stepdaughter moved for appellate attorney fees to be paid from the estate.

The primary question before this court is whether the will in the authorized custody of the district court, but not found until after the statute of limitations had expired, should be admitted to probate. We ultimately hold that it should be admitted to probate. We also grant, in part, the motion for attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Ray V. Oroke was a resident of Jefferson County, Kansas. During the relevant time period, K.S.A. 59-620 (Furse 1994) permitted a party to deposit a will in the district court of the county where the testator resided upon the payment of a deposit fee of one dollar. The statute required the court to give a certificate of the deposit and to "retain such will." After being notified of the testator's death, the court was required to open the will publicly and retain the same. K.S.A. 59-620 (Furse 1994) was repealed in 1995. L. 1995, ch. 103, § 2.

On July 14, 1954, Oroke executed a Last Will and Testament and deposited it with the Jefferson County probate judge as authorized by K.S.A. 59-620 (Furse 1994). He did this on the same day he executed it. The will was placed in an envelope bearing Oroke's full name and the name of his executor and was file-marked "No. 153."

On November 17, 1988, Oroke signed a codicil to the will naming new executors. His attorney filed it with the Jefferson County District Court on the same day it was signed and witnessed. The will and codicil were placed in an envelope bearing Oroke's full name and the names of his new coexecutors and was again file-marked "No. 153."

Karen Barney, Oroke's daughter, had discussed a will with her father several times and thought it was likely that a will existed somewhere. Kevin Barney (Karen's son and Oroke's grandson) also discussed a will with Oroke and was told that he and Donna Fairbanks (Oroke's stepdaughter and Karen's stepsister) were to be coexecutors. Oroke told Donna that a copy of the will was in his safety deposit box. Both Oroke and his lawyer mentioned to Donna that the will was registered at the courthouse.

Oroke died on October 15, 2014. On November 6, 2014, Karen; her daughter, Laura; her son, Kevin; and Donna went will hunting. First, they visited the McLouth bank where Oroke had a safety deposit box. They did not find a will there, but they found an unsigned codicil to a will.

The group then went to the Jefferson County courthouse. Laura, Kevin, and Donna went inside, while Karen waited in the car. Kevin asked an employee of the clerk of the district court if the will was on file at the court. The court employee said "they didn't know anything about that" but then asked someone in the back of the clerk's office if the will was on file. The court employee returned and said the court had no will and codicil on file for Oroke, that "they used to do that, but they don't do that anymore," and that the family might try the title of deeds office. Undeterred, the family went to the register of deeds office, where a search once again failed to produce a will. Kevin later spoke with a lawyer who had bought the law office from Oroke's retired lawyer, but the lawyer was unable to locate any documents relating to Oroke. Kevin and Laura next went to Oroke's house and looked for the will without success.

On March 10, 2015, Karen filed a petition in Jefferson County District Court requesting the issuance of letters of administration. The petition asserted that Oroke died intestate. On April 29, 2015, the court granted the petition and appointed Karen administrator of the estate.

In mid-September 2015, Donna hired a lawyer to find the will. On September 25, 2015, with the assistance of the lawyer, the will and codicil were located among the files of the Jefferson County probate court. On September 28, 2015, Donna filed a written opposition to the petition for letters of administration and asked the court to terminate Karen's appointment as administrator and freeze all transfers of assets from the estate.

Donna filed her own petition for probate of the will and for letters testamentary. Donna attached the original will and codicil; the envelopes that contained them; and a September 10, 1973, signed certificate by Oroke stating that he had opened envelope No. 153 to inspect the will, returned the will to envelope No. 153, resealed the envelope, and returned it to the custody of the probate judge. (These September 10, 1973, events were witnessed by the probate judge.) Donna's petition was filed under a separate case number from Karen's proceeding, and the district court later consolidated the two cases.

Karen filed an objection to the petition for probating the will. Nevertheless, on November 3, 2015, the district magistrate judge granted Donna's petition and admitted the will to probate. Karen took a timely appeal from that decision to the district court.

On July 13, 2016, the district court rejected Karen's appeal and entered an order admitting the will to probate. The court found that Donna and Kevin exercised due diligence in attempting to locate the will. The court further held that a mistake on the part of the court would toll the statute of limitations for filing a petition admitting a will to probate, and it named Donna and Kevin coexecutors of the will. Karen took a timely appeal to the Court of Appeals.

The Court of Appeals reversed the judgment of the district court, holding that the petition to probate the will was filed outside the statute of limitations; that no exceptions applied to toll the statute because the will was not "knowingly" withheld, and that this case was indistinguishable from In re Estate of Strader , 301 Kan. 50, 339 P.3d 769 (2014). In re Estate of Oroke , No. 116,333, 2017 WL 1196856 (Kan. App. 2017) (unpublished opinion). This court granted Donna's petition for review.

On October 24, 2018, oral argument was heard by this court. On November 5, 2018, Donna filed a motion for appellate attorney fees related to both the Court of Appeals and Supreme Court proceedings to be paid from the estate. Karen filed no response to the motion.

IS THE STATUTE OF LIMITATIONS TOLLED IF THE WILL IS IN THE AUTHORIZED CUSTODY OF THE DISTRICT COURT BUT NOT FOUND UNTIL THE STATUTORY TIME PERIOD HAD EXPIRED ?
Standard of Review

The facts are undisputed. Application of legal principles to undisputed facts involves questions of law subject to de novo review. In re Estate of Clare , 305 Kan. 967, 969, 389 P.3d 1274 (2017).

Analysis

In order to commence an action in probate regarding the contents of a will, a petitioner must file the will with the court and commence the action within six months after the death of the testator. K.S.A. 59-617. This functions as a statute of limitations. Strader , 301 Kan. 50, Syl. ¶ 4, 339 P.3d 769.

K.S.A. 59-618 provides for an exception to the six-month limitation period when someone who knows where a will is located knowingly withholds it from the court:

"Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the petition for probate of the will after the expiration of six months from the death of the decedent.
"The provisions of this section as amended by this
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8 cases
  • Doan Family Corp. v. Arnberger
    • United States
    • Kansas Court of Appeals
    • December 30, 2022
    ... ... We, of course, review questions of law without deference to the district court's determination. In re Estate of Oroke , 310 Kan. 305, 310, 445 P.3d 742 (2019). There is a fair argument the Kansas Supreme Court actually has deployed a bifurcated analysis ... ...
  • In re The Marriage of Wessley
    • United States
    • Kansas Court of Appeals
    • September 15, 2023
    ... ... circumstances and the expressed intention of the ... parties." In re Estate of Sweeney , 210 Kan ... 216, 224, 500 P.2d 56 (1972) ...          Here, ... the Divorce Decree specifically states that ... is entitled to their attorney fees. See In re Estate of ... Oroke , 310 Kan. 305, 317, 445 P.3d 742 (2019). Appellate ... attorney fees may be awarded "for services on appeal in ... a case in which the ... ...
  • Kemmerly v. The Wichita Eagle
    • United States
    • Kansas Court of Appeals
    • May 6, 2022
    ... ... considered in determining the reasonableness of the fee ... In re Estate of Oroke , 310 Kan. 305, 317-18, 445 ... P.3d 742 (2019). In applying the factors, no one factor ... controls. Johnson v. Westhoff Sand ... ...
  • Seibel v. Seibel
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    • Kansas Court of Appeals
    • June 10, 2022
    ... ... But this court has an independent duty to consider whether that amount of fees requested is reasonable. See In re Estate of Oroke , 310 Kan. 305, 318-19, 445 P.3d 742 (2019) ; see also Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 168, 298 P.3d 1120 (2013) ... ...
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