In re Estate of Seth
Decision Date | 21 November 2008 |
Docket Number | No. 99,245.,99,245. |
Parties | In the Matter of the ESTATE OF Marvel M. SETH, Deceased. |
Court | Kansas Court of Appeals |
Charles S. Arthur, III, and Derrick L. Roberson, of Arthur-Green, LLP, of Manhattan, for appellants Diane S. Paige, Dianah M. Colvin, and Daryl L. Seth.
Nina M. Miley, of Nina Miley Law Firm, of White City, for appellee Laryl E. Seth.
Before GREENE, P.J., HILL, J., and BRAZIL, S.J.
This appeal frames for our determination the interpretation and application of K.S.A. 59-618, which specifies circumstances for the belated admission of a will to probate by an innocent beneficiary after it has been knowingly withheld from probate during the 6 months following testator's death. The district court held that Laryl E. Seth, a beneficiary under the will of Marvel M. Seth, deceased, was an innocent beneficiary under the statute and permitted the belated admission of the will to probate. Some of the heirs at law, grandchildren of the testator, contend the statute does not permit such admission where the beneficiary had both knowledge and access to the will within 6 months after death of the testator but the failure of timely admission was caused by inaction of that beneficiary's attorney. We affirm the district court.
Marvel M. Seth executed a valid will on May 13, 1984, leaving her 320-acre family farm to one of her sons, Laryl. At the time of her death on December 4, 2005, Marvel was survived by Laryl, daughter Loyola, and three children of her second son, Lowell, deceased. In February 2006, Laryl and Loyola found the will and took it to an attorney, Kenneth McClintock, instructing him to admit it to probate.
After the initial meeting with McClintock, Laryl tried repeatedly to contact him to ask about the will. On two occasions between April and May 2006, McClintock assured Laryl on the phone and in person that he was "taking care of" the will. The 6-month period for probate under K.S.A. 59-617 expired in early June 2006. In late June 2006, however, the will had not been admitted to probate, and McClintock admitted he failed to meet the statutory deadline. McClintock possessed no assets or insurance to respond to a judgment, and he ultimately relinquished his law license in connection with disciplinary proceedings that resulted from his inaction on Laryl's behalf.
Laryl promptly retrieved the will from McClintock, took it to a different attorney, and filed a petition to probate the will in late August 2006. The grandchildren filed an answer and defense, challenging the belated admission of the will to probate. After a bench trial, the district court held that Laryl was an innocent beneficiary under K.S.A. 59-618 and entitled to belated admission of the will to probate. Key findings of fact of the district court included:
. . . .
"Laryl Seth did not intentionally withhold the will for probate."
Key conclusions of law included:
. . . .
"Laryl's actions establish that he is an innocent beneficiary and therefore meets that requirement of [K.S.A. 59-] 618.
. . . .
The grandchildren appeal.
Where the district court has made findings of fact and conclusions of law, we review the findings to determine if they are supported by substantial competent evidence and are sufficient to support the conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Appellate courts have unlimited review of conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). The construction and application of statutory law are also subject to unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
K.S.A. 59-617 provides that no will is effective unless a petition is filed for probate of such will within 6 months of the death of the testator. An exception to this rule is found in K.S.A. 59-618, which provides:
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In re Estate of Strader
...But Chief Judge Richard D. Greene dissented, relying principally on an opinion he had authored for another panel: In re Estate of Seth, 40 Kan.App.2d 824, 196 P.3d 402 (2008). The Seth panel interpreted K.S.A. 59–618 to require a knowing withholding before a will can be admitted to probate ......
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In re Estate of Strader
...But Chief Judge Richard D. Greene dissented, relying principally on an opinion he had authored for another panel: In re Estate of Seth, 40 Kan.App.2d 824, 196 P.3d 402 (2008). The Seth panel interpreted K.S.A. 59–618 to require a knowing withholding before a will can be admitted to probate ......
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