Construing a Last Will and Testament in a Testate Probate Estate
I represent a client in a probate estate in Shawnee County, Kansas wherein the decedent died with a last will and testament and there is litigation regarding the clarity or ambiguity of the language in the will. The decedent had 3 children and 2 step-children. The will named the step-daughter as the personal representative (aka executor) of the estate. Additionally, the will provided for a few specific gifts of tangible personal property. Finally, the residuary clause of the will stated that (1) the decedent’s 3 children were to each receive $1,000.00 and that was the only distribution they were to receive from the decedent’s estate and (2) the remainder of the residuary clause stated that (a) the step-son was to receive the decedent’s house and the 5 acres upon which the house sits and (b) the step-daughter was to receive the property around the decedent’s house “which consists of approximately 54 acres”.
The decedent’s will also stated that the decedent intended to execute deeds to convey the various parcels of land (his house and the land surrounding) so that the land did not need to go through the probate process, but that if he failed to complete the tasks of executing deeds, he want the land to to to the step-son and step-daughter in the manner described above. Over the course of time, the 54 acres was whittled down as the State took a few acres by eminent domain for improvements to I-70 and an on/off ramp. However, a sentence that follows the legal description of property that states the approximate size of the land in acres is not a part of the legal description itself.
The decedent did execute multiple deeds to convey his property to his step-son, his step-daughter, and he executed a deed for about 3 acres to his daughter a year before his death. At the time of his death, he still owned in his name 2 parcels of land near his house, a 3.2 acre parcel and a 3.82 acre parcel.
After we filed our petition for final settlement asking the court to construe the decedent’s will and asking the court to enter an order to distribute the gifts, $1,000.00, and the 2 parcels of land to the beneficiaries named in the will, the 3 children of the decedent filed objections to to the final settlement claiming that the will as to the land surrounding the decedent’s house was vague and ambiguous (citing that describing the acreage as 54 acres when it was actually smaller proves that the will is vague and ambiguous as to these 2 parcels) and that by the laws of intestate succession the 3 children of the decedent should inherit the land.
When people die, they either die with a will or without a will. Those who die with wills that are admitted to probate have testate estates (last will and TESTAMENT = TESTATE estate). Those who die without a will have intestate estates. Who receives distributions from a testate estate are determined by the language in the will. Who receives distributions from an intestate estate in Kansas is determined by the intestate succession statutes in the Kansas Probate Code, specifically K.S.A. 59-504 through 59-508.
The court held a hearing on the issue and then asked the children and the step-daughter to file respective findings of fact and conclusions of law. In the conclusions of law filed on behalf of the step-daughter, we cited the 1959 Kansas Supreme Court Case In re Estate of Randall wherein the Kansas Supreme Court was asked to determine if heirs of a decedent could take from a probate estate under the laws of intestate succession when the will included what the opponents of the will claimed was vague and ambiguous language. The Kansas Supreme Court held what I believe most people would believe in their gut is the correct analysis of the law when the Court stated that the inescapable conclusion is that the decedent attempted to make certain that he disposed of all of his property under the terms of the will and had no intention whatsoever to die intestate as to any part or portion thereof.
It is my belief that opinion by the Kansas Supreme Court should end all argument and doubt in this Shawnee County probate case. However, as of this date, the probate judge has been considering these arguments for almost 2 months. Will update this blog post once the court renders a decision.
