Printable Format59-618. Liability and effect of withholding will. 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, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the petition for probate of the will after the expiration of six months from the death of the decedent.
The provisions of this section as amended by this act shall apply retroactively to the withholding of a will of a testator.
History: L. 1939, ch. 180, § 54; L. 1943, ch. 213, § 2; L. 1972, ch. 215, § 2; L. 1976, ch. 242, § 6; L. 1985, ch. 191, § 9; July 1.
Source or prior law:
22-233.
Cross References to Related Sections:
Liability for failure to produce will, see also 59-621.
Law Review and Bar Journal References:
1965-69 survey of estate planning and future interests, James K. Logan, 17 K.L.R. 455, 496 (1969).
"Wills—Family Settlement Agreements as a Defense to the Probate of a Will," Robert L. Heath, 9 W.L.J. 167, 171 (1969).
Mentioned as having been modified by passage of K.S.A. 59-2287 et seq. in "Dispensing with Administration in Small Estates: A Marketable Title Problem," William R. Scott, 42 J.B.A.K. 337, 338 (1973).
"Barring the Slayer's Bounty: An Analysis of Kansas' Troubled Experience," John F. Kuether, 23 W.L.J. 494, 521 (1984).
"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 23 (1995).
"Kansas Judicial Council Report: Proposed 2010 Legislation," Christy Molzen, 79 J.K.B.A. No. 2, 19 (2010).
CASE ANNOTATIONS
1. Discussed; record insufficient to show will withheld from probate. Kininmonth v. Carson, 156 Kan. 808, 819, 820, 137 P.2d 173.
2. Application for probate of will held filed too late; statutes construed. In re Estate of Colyer, 157 Kan. 347, 349, 139 P.2d 411.
3. Applies to probate proceeding commenced after effective date although testator died before. In re Estate of Reed, 157 Kan. 602, 605, 606, 608, 609, 610, 142 P.2d 824.
4. Widow not estopped from claiming statutory share by offering will for probate. In re Estate of Garden, 158 Kan. 554, 564, 148 P.2d 745.
5. Mentioned; under probate code executor may file petition to probate will. In re Estate of Smith, 168 Kan. 210, 213, 212 P.2d 322.
6. Referred to: no time limit within which interested heir may petition for administrator. In re Estate of Wright, 170 Kan. 400, 406, 227 P.2d 131.
7. Section makes it a duty to offer will for probate. In re Estate of O'Leary, 180 Kan. 419, 421, 304 P.2d 547.
8. Mentioned in discussing procedure where testator deposits will in probate court under K.S.A. 59-620. In re Estate of Morgans, 188 Kan. 50, 57, 360 P.2d 1069.
9. Family settlement agreement to withhold will from probate not valid defense to probate proceeding. In re Estate of Harper, 202 Kan. 150, 156, 158, 162, 446 P.2d 738.
10. Mentioned where joint will was not submitted for probate within five years of death. In re Estate of Zimmerman, 207 Kan. 354, 356, 357, 485 P.2d 215.
11. Alleged breach of violation of K.S.A. 59-618 by defendants; no showing of any attempt to secure admission of will to probate by plaintiffs; complaint barred. Curtis v. Freden, 224 Kan. 646, 648, 653, 585 P.2d 993.
12. Duty to produce will does not justify payment under K.S.A. 59-1504 of expenses of opposing later will. In re Estate of Carothers, 3 Kan. App. 2d 156, 160, 591 P.2d 1091.
13. A family settlement agreement to withhold will from probate is not a proper or valid defense to probate proceeding. In re Estate of Petty, 227 Kan. 697, 704, 608 P.2d 987.
14. Will withheld from probate more than nine months; no forfeiture thereby of rights under K.S.A. 59-403. In re Estate of Ciochon, 4 Kan. App. 2d 448, 449, 451, 457, 609 P.2d 177.
15. Bankruptcy trustee of heir at law not in position of good faith purchaser where will admitted to probate after bankruptcy commenced. In re Estate of Williams, 238 Kan. 651, 662, 714 P.2d 948 (1986).
16. Whether in terrorem clause unenforceable because heir had probable cause to challenge will examined; "probable cause" defined. In re Estate of Campbell, 19 Kan. App. 2d 795, 801, 876 P.2d 212 (1994).
17. Expresses legislative intent wills be probated; provides exception for innocent beneficiaries to seek to have will probated. In re Estate of Tracy, 36 Kan. App. 2d 401, 408, 140 P.3d 1045 (2006).
18. Cited; belated admission of will to probate by innocent beneficiary allowed. In re Estate of Seth, 40 Kan. App. 2d 824, 825, 827-829, 196 P.3d 402 (2008).
19. District court's admission of a will to probate was upheld under the unusual facts of case. In re Estate of Strader, 47 Kan. App. 2d 374, 277 P.3d 1163 (2010).
20. No exception applied to admit will to probate more than six months after a testator's death simply because it was lost or misplaced. In re Estate of Strader, 301 Kan. 50, 57, 339 P.3d 769 (2014).
21. A statute of limitations may be tolled under the unique circumstances doctrine where a district court clerk entrusted with custodianship of a will failed to timely produce the will. In re Estate of Oroke, 310 Kan. 305, 445 P.3d 742 (2019).