Printable Format59-2224. Hearings for probate and for determination of validity of spouse's consent; procedure. The hearing of a petition for the probate of a will and the hearing of a petition for the determination that the consent of the spouse to the will is a valid and binding consent shall be separate issues which, in the discretion of the court, may be determined in a consolidated hearing or in separate hearings. On the hearing of a petition for the probate of a will or for the determination that the consent of a spouse to a will is a valid and binding consent, unless it is an uncontested, self-proved will or consent, the testimony of at least two of the subscribing witnesses shall be taken in person, by affidavit or by deposition. The court may waive the requirement of such testimony of such subscribing witnesses upon a proper showing that such witnesses are unavailable or cannot be located. Otherwise, the court may admit the testimony of other witnesses to prove the capacity of the testator or the spouse and the due execution of the will or consent and, as evidence of such execution, may admit proof of the handwriting of the testator or the spouse and of the subscribing witnesses. Any heir, devisee, or legatee may prosecute or oppose the probate of any will or the determination that the consent of the spouse to the will is a valid and binding consent. If the instrument alleged to be the will is not allowed as the last will and if the estate should be administered, the court shall grant administration to the person or persons entitled thereto.
History: L. 1939, ch. 180, § 200; L. 1963, ch. 299, § 1; L. 1975, ch. 299, § 17; L. 1977, ch. 197, § 2; L. 1981, ch. 228, § 4; L. 1996, ch. 106, § 1; July 1.
Source or prior law:
22-213, 22-217, 22-218, 22-251.
Cross References to Related Sections:
Persons to whom administration granted, see 59-705.
Law Review and Bar Journal References:
Practice problems, Samuel E. Bartlett, 15 J.B.A.K. 386, 389 (1947).
Annotation No. 12 discussed in 1955-56 survey of law of administration of estates, Richard C. Harris, 5 K.L.R. 143, 144 (1956).
Survey of law of administration of estates, Richard C. Harris, 12 K.L.R. 127, 128 (1963).
"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 23, 25 (1995).
"The Kansas Uniform Trust Code," David M. English, 51 K.L.R. 311 (2003).
CASE ANNOTATIONS
1. Burden of proof in proceedings to probate a will stated; prima facie case. In re Estate of Peirano, 155 Kan. 48, 49, 51, 122 P.2d 772.
2. Order admitting will to probate appealable only when objection made in probate court. In re Estate of Grindrod, 158 Kan. 345, 351, 362, 148 P.2d 278.
3. Cited; order admitting will to probate not prima facie evidence of validity. In re Estate of Wallace, 158 Kan. 633, 637, 638, 149 P.2d 595.
4. Showing necessary in probate court to maintain appeal discussed and determined. In re Estate of Pallister, 159 Kan. 7, 32, 152 P.2d 61.
5. Mental capacity; testimony at former trial by witness since deceased, how reproduced. In re Estate of Cross, 166 Kan. 318, 201 P.2d 1052.
6. Witnesses to will necessary witnesses as to testator's capacity and due execution of will. In re Estate of Randall, 167 Kan. 62, 65, 204 P.2d 699.
7. Mental capacity; insane delusions; burden and sufficiency of proof; will upheld. In re Estate of Walter, 167 Kan. 627, 207 P.2d 262.
8. Questions justiciable in a proceeding to probate will determined; validity of postnuptial agreement cannot be determined. In re Estate of Osborn, 167 Kan. 656, 662, 208 P.2d 257.
9. Subscribing witness unable to recall will or signature; testimony of other witnesses not impeachment. Amerine v. Amerine, Executor, 177 Kan. 481, 484, 485, 280 P.2d 601.
10. Two witnesses to deceased witness' signature to will not required. In re Estate of Whitmore, 178 Kan. 491, 494, 290 P.2d 105.
11. Undue influence; evidence reviewed; order admitting will to probate affirmed. In re Estate of Eyman, 181 Kan. 90, 91, 309 P.2d 664.
12. Statute does not authorize appointed administrator to contest will discovered after the administrator's appointment. In re Estate of Reed, 233 Kan. 531, 543, 664 P.2d 824 (1983).
13. Cited; journal entry barring bankruptcy trustee from contesting probate of will (K.S.A. 59-2224) is order (K.S.A. 59-2401) requiring timely appeal (K.S.A. 60-2103). In re Estate of Williams, 238 Kan. 651, 653, 656, 714 P.2d 948 (1986).
14. Appeal bond determined unnecessary where controversy is whether quiet title action is proper remedy. In re Estate of Beason, 248 Kan. 803, 806, 811 P.2d 848 (1991).