Probate and Trust Update By Calvin J. Karlin

By Calvin J. Karlin

Barber Emerson LC, Lawrence

In the Matter of the Estate of Lanny Lentz Kansas Court of Appeals (Unpublished) August 13, 2021

Attorneys: Jonathan Sternberg, Kansas City, Missouri, for appellant Diann Wyatt; Alan V. Johnson and Aaron R. Bailey of Sloan, Eisenbarth, Glassman, McEntire & Jarboe LLC, Topeka, for appellees Lana Kennedy and Marilyn Lentz.

Appellees were successive executors of their father’s estate. Appellant is a third sister who objected to valuations for the estate inventory and final settlement. There is much to distract from the probate principles to be found in this opinion and those factual disputes and procedural difficulties will be ignored here. This second (and different) Court of Appeals panel rejected appellant’s argument that an executor must use certified market appraisals to provide the value for the probate inventory. The panel even noted that the statute does not even require the use of “fair market value,” as K.S.A. 59-1201 just requires a “full and fair value.” As the Court notes,

“This establishes a broad standard for acceptable valuations.”

The values determined by the executor were “verified” in both the inventory and the petition for final settlement as required by K.S.A. 59-1201 and 59-2201. The Court cited K.S.A. 592213 that the verification of the petition constitutes sufficient proof of the statements made absent a written defense or adverse appearance. Consequently, the executor’s valuations (as verified) constituted sufficient proof. Wyatt provided no contradictory evidence, so she lost.

Belmore v. Goldizen Kansas Court of Appeals (Unpublished) September 10, 2021

Attorneys: Peter Charles Rombold, of Hoover, Edward, Pinaire & Rambold, Junction City, for appellants Goldizen; Melissa D. Richards, of Weary Davis LC, Manhattan, for plaintiff-appellee Alma Belmore.

Margaret Goldizen removed her mother, Alma Belmore, from her long-time residence in Washington state and put her in an RV on the property where Margaret resided (that was owned by Alma). Margaret persuaded Alma to give her power of attorney and to add her name to Alma’s bank accounts and real estate. Margaret stopped paying rent to Alma for the house she and her husband resided in on Alma’s land, where Alma was in an RV. Margaret also moved Alma’s funds to her own account to “protect” them.

The Court found similarities between this case and the oftcited Cresto opinion, 302 Kan. 820, 358 P.3d 831 (2015), as to the suspicious circumstances creating a presumption of undue influence. It upheld the district court’s finding, and noted that Margaret did not rebut the presumption of undue influence.

A side issue was a finding of competency as to Alma in Washington State but the circumstances supported neither collateral estoppel nor res judicata.

The Court also rejected the Goldizens’ argument that the district court should have appointed a guardian ad litem for Alma. The district court had actually appointed an attorney, Catherine Craft, as substitute plaintiff, which the Court held to properly protect Alma’s interest under K.S.A. 60-217 as an incapacitated person.

In re Estate of Raney Kansas Court of Appeals (Unpublished) August 6, 2021

Appellant Carl Raney, pro se; Donald F. Hoffman of Dreiling, Bieker & Hoffman LLP, Hays, for appellees.

Carl Raney contested his mother’s will. His brother, as executor, moved to enforce a no contest clause. The district court and Court of Appeals did not find “probable cause” for Carl to avoid the imposition of the in terrorem clause The Court of Appeals cited Hamel, 296 Kan. at 1078, for the definition of “probable cause” required to avoid effectiveness of a no contest clause as: “[T]he existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.” The district court’s determination was a “negative finding” for which the Court of Appeals did not find arbitrary disregard of undisputed evidence or reliance on some improper extrinsic consideration such as bias, passion or prejudice.

In the Matter of the Estate of Mike Valadez Kansas Court of Appeals (Unpublished) January 14, 2022

Appellants Kristopher Valadez and Greg Valadez, pro se. Sarah Doll Heeke, of Doll Law Firm LLC, Dodge City, for appellee.

The first notice of appeal was filed prematurely (after the judgment was announced, but before actual entry of the judgment). This is permitted under Supreme Court Rule 2.01(a), but appellant did not docket the appeal within 60 days as required by Rule 2.04(a)(1) so it was deemed abandoned. A second notice of appeal was untimely so appellants’ sister Connie Valadez prevailed on having her father’s will admitted that named her as sole beneficiary and executor.

In the Matter of the Estate of Barbara B. James Kansas Court of Appeals (Unpublished) October 15, 2021

Attorneys: Rhonda K. Levinson and Hale Weirick, of Perry & Trout LLC, Bonner Springs, and Marion L. Stern and Adam C. Mauck, of Stockton & Stern LLC, Gardner, for appellant Thomas James; Calvin J. Karlin and Catherine C. Theisen, of Barber Emerson LC, Lawrence, for appellee Katherine James.

This case involves competing wills offered for probate. Thomas challenged the later one as the product of undue influence and testator’s alleged lack of capacity. The district court admitted the later will and appointed testator’s daughter, Katherine, as the named executor.

The Court of Appeals acknowledged the district court’s “thorough and well-articulated memorandum opinion.” The Court of Appeals discusses in detail the shifting burdens and standards in a will contest. The Court of Appeals also discussed the standard for appointing the executor named in a will absent unsuitability. A “hostile and distrustful relationship” is not a sufficient reason to reject the testator’s appointment of an executor.

The appellate opinion also contains a lengthy discussion of multiple continuances requested by Thomas and why the district court did not err in denying his request for a continuance of the last day of the evidentiary hearing. The Kansas Supreme Court denied Thomas’ request for review.

About the Author

Calvin J. Karlin, Lawrence, is a member of Barber Emerson LC. His practice includes estate and trust planning and litigation.

Karlin received his bachelor’s degree and Juris Doctor from the University of Kansas, where he was Phi Beta Kappa, Order of the Coif, and Kansas Law Review note and comment editor.

He is a member of the American College of Trust and Estate Counsel, an executive committee member of the Kansas Bar Association Real Estate, Probate, and Trust Law Section, and serves as editor of the section newsletter.

Email: ckarlin@barberemerson.com