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attorneyappealtrialburden of proofprobatewill

trialprobatewill

Related Cases

In re Estate of Leavey, 41 Kan.App.2d 423, 202 P.3d 99

Facts

John F. Leavey died on February 13, 2006, and his purported will from 1987 was contested by his daughter, Gertrude DeLuca, after Harriet Eggeson petitioned for its probate. The will had only one witness signature, and the initials of the attorney who drafted the will appeared at the bottom of each page but were not placed in the designated witness signature line. The trial court found that the will did not meet the statutory requirements for execution under K.S.A. 59–606.

Eggeson argues that the scrivener's initials in the lower right corner of the attestation page of the purported February 1987 will met the requirements of K.S.A. 59–606 for the will to be admitted to probate. We disagree.

Issue

Whether the purported will was properly executed according to the statutory requirements and whether the proponent established a prima facie case of the testator's testamentary capacity.

Whether a purported will was properly executed according to the statutory requirements and thereby valid is a conclusion of law over which an appellate court has unlimited review.

Rule

A will must be attested by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will, as required by K.S.A. 59–606. The burden of proof is initially on the proponent to establish a prima facie case showing capacity and due execution of the will.

K.S.A. 59–606 requires that a will be attested by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will and that the witnesses subscribe the will in the testator's presence.

Analysis

The court determined that the initials of the attorney at the bottom of each page did not satisfy the attestation and subscription requirements of K.S.A. 59–606. The court emphasized that the will must be signed at the end by two competent witnesses in the presence of the testator, and since only one witness had signed, the statutory requirements were not met. Additionally, the proponent failed to provide evidence of the testator's capacity.

The trial court determined that the evidence failed to establish that Leavey's February 1987 will was executed with the statutory formalities of execution required under K.S.A. 59–606.

Conclusion

The Court of Appeals affirmed the trial court's decision, concluding that the purported will was not valid due to insufficient witness signatures and a lack of evidence regarding the testator's capacity.

Accordingly, we affirm.

Who won?

Gertrude DeLuca prevailed in the case because the court found that the purported will did not meet the statutory requirements for execution and that the proponent failed to establish the testator's capacity.

The trial court properly denied the admission of the purported February 1987 will to probate.

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