In re Lessley

• Decision Date: 11 March 2022
• Docket Number: 123,943
• Parties: In the MATTER OF the ESTATE OF Alma Faye LESSLEY.
• Court: Kansas Court of Appeals

62 Kan.App.2d 75

506 P.3d 942

In the MATTER OF the ESTATE OF Alma Faye LESSLEY.

No. 123,943

Court of Appeals of Kansas.

Opinion Filed March 11, 2022

Thomas C. McDowell, of McDowell Chartered, of Wichita, for appellant Kris F. Lessley.

Russell L. Mills, of Russell L. Mills Attorney at Law, of Derby, for appellee Kelli F. Lessley.

Before Powell, P.J., Schroeder, J., and James L. Burgess, S.J.

Schroeder, J.:

Alma Faye Lessley died on June 22, 2018. A petition to admit her will to probate was filed by Kris F. Lessley, the named executor in the will, on September 26, 2018. But Alma's Last Will and Testament was not filed with the district court until almost 18 months later on December 20, 2019. Kris filed this interlocutory appeal of the district court's determination the will could not be admitted to probate and record because it was filed outside of the six-month window allowed by K.S.A. 59-617 and K.S.A. 59-2220. Upon an extensive review of the record and the applicable statutes contained in the probate code, we find no error by the district court. We affirm and remand for further proceedings.

FACTS

Alma, a resident of Kansas, died on June 22, 2018, leaving four children—two sons and two daughters. Alma and her husband had prepared reciprocal wills in 1982, which divided all property equally among their four children if one spouse predeceased the other. On April 18, 2018, a few months prior to Alma's death, she prepared a new will naming her son, Kris F. Lessley, as personal representative and further bequeathing a substantial portion of her assets to Kris to the exclusion of her three other children and her husband. About the time the new will was prepared and executed, Alma filed for divorce from her husband of 60 years. Alma was granted an emergency divorce on June 6, 2018, with the district court bifurcating the division of assets to another day.

Kris filed a petition for probate of Alma's will and issuance of letters testamentary in the matter of Alma's estate on September 26, 2018. The petition stated, in relevant part:

"The instrument dated April 18, 2018, and filed with this Petition is the Last Will and Testament of the decedent. The Will dated April 18, 2018, was executed according to law and unrevoked at the time of the decedent's death. At the time of the execution of the Will, the decent was of legal age, of sound mind, and was not under any restraint."

Contrary to the above statement in the petition for probate, Alma's will was not attached to the petition or filed with the district court. Kris also prepared and filed an affidavit of service stating he had complied with K.S.A. 59-2209, which requires the petitioner, within seven days after the first publication of the notice of hearing, to mail, postage prepaid, a copy of the petition with its attachments, including a copy of the will, to the known heirs and beneficiaries.

One of Alma's daughters, Kelli F. Lessley—an heir and beneficiary under the will—filed a petition to stay all probate proceedings until Alma's divorce proceedings had concluded as the marital property had not been divided and Alma's individual assets were unknown. A few days prior to the scheduled hearing to stay all probate proceedings, Kris' attorney e-mailed a copy of Alma's will to the attorneys representing Alma's heirs. The day after Kris e-mailed Alma's will, Kelli filed written defenses and objections to the probate of Alma's will. Among Kelli's objections included the failure to file a properly executed will with the district court or provide a copy of the will to any heir. No stay order was entered in the probate matter, but it was continued several times from October 2018 until January 8, 2020. Even with notice from Kelli in October 2018 that the will was not filed with the petition to admit the will, Kris still did not file Alma's will until December 20, 2019—approximately 18 months after Alma's death. After the will was filed, Kelli, along with the other heirs, filed another written defense, arguing in part the district court should deny admission of Alma's will to probate as it was untimely filed and the result of undue influence. Alma's probate case and divorce case were eventually consolidated, and the district court continued the matter to address the admissibility, but not the validity, of Alma's will.

In February 2020, Kris filed another petition to admit the will with the will attached. Kris argued that the petition for probate of Alma's will and issuance of letters testamentary was filed and set for hearing within six months of Alma's death, which stopped the statute of limitations from running. Kris further stated the petition mentioned Alma's will three times, which was sufficient to establish the will existed and the petition was timely filed. Kris argued, in the alternative, his attorney conveyed to him Alma's original will was timely filed with the clerk of the district court along with the petition in September 2018. Kris then stated he knowingly withheld Alma's will under the mistaken belief he was to safeguard it forever. Kelli filed a petition for judgment on the pleadings or, in the alternative, for partial summary judgment because Alma's will was untimely filed.

The district court found the petition for probate was timely filed within six months of Alma's death but neither the original will nor a copy of the will was attached, which was a necessary part of the probate filing. Kris needed to file Alma's will by December 22, 2018—six months after Alma's death—for the district court to consider admitting the will to probate. The district court also explained Kelli's petition for a stay order was not heard by the district court and no order was filed granting a stay of the probate proceedings. The district court amended its journal entry for purposes of an interlocutory appeal to include a finding that K.S.A. 59-617 involved a controlling question of law in which there was a substantial ground for difference of opinion. Specifically, the question is whether a will needed to be filed with the petition for probate or, if not filed with the petition, filed within six months of the decedent's death. We granted Kris' application for interlocutory appeal. Additional facts are set forth as necessary.

ANALYSIS

A PETITION TO ADMIT A WILL FILED WITHIN SIX MONTHS OF THE DECEDENT'S DEATH WITHOUT THE WILL ATTACHED WILL NOT TOLL THE NEED TO FILE THE WILL WITHIN SIX MONTHS .

Kris argues, under K.S.A. 59-617 and K.SA. 59-2220, Alma's April 2018 will did not need to be filed along with the petition for the probate of the will or within six months after Alma's death. Kelli responds Alma's will had to be filed with the district court within six months of Alma's death or it became ineffective to pass real or personal property. The parties agree Alma was a resident of Kansas and the essential facts underlying this appeal are not in dispute. The issue presented is a question of law over which we have unlimited review.

Both parties correctly identify our standard of review. We exercise unlimited review over the legal question of statutory interpretation. The fundamental rule of statutory interpretation is that the Legislature's intent governs if its intent can be ascertained through the plain and unambiguous language of a statute. That is, appellate courts are to interpret statutory language as it appears, without speculation or reading language into the statute not readily found therein. In re Estate of Strader , 301 Kan. 50, 55, 339 P.3d 769 (2014).

K.S.A. 59-617

The parties agree K.S.A. 59-617 acts as a six-month statute of limitations for the admission of a will to probate, stating: "No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided." See In re Estate of Clare , 305 Kan. 967, 969, 389 P.3d 1274 (2017) (finding K.S.A. 59-617 sets time limitation for passing property under will).

Kris argues the clear and unambiguous language of K.S.A. 59-617 requires the filing of only a petition for the probate of a will, not the will itself. Kris' argument is unpersuasive because Kris fails to recognize the petition as set forth in K.S.A. 59-617 is further defined in K.S.A. 59-2220 to require that the will is to be filed if it can be produced. Nothing in the record reflects the will could not have been produced and timely filed. Kelli also responds a petition without an attached will fails to toll the statutory requirement for a will to be filed within six months of the decedent's death.

While K.S.A. 59-617 explicitly provides a petition must be filed for the probate of a will within six months of the testator's death, K.S.A. 59-618 provides an exception to the statute of limitations, allowing a will to be filed if it was knowingly withheld from probate. K.S.A. 59-618 states:

"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 ...."

Our Supreme Court analyzed K.S.A. 59-618 and explained:

"[A]pplying this ordinary meaning, K.S.A. 59-618 can legitimately be read only one way: ‘such will’ in the second sentence refers to the will ‘having just been mentioned’ in the first sentence. In other words, it means a will that has been knowingly withheld

...