Lost Will Hunting

The Kansas Supreme Court reversed the Court of Appeals and admitted to probate a will filed with and misplaced by a district court.

Oroke died on October 15, 2014. On November 6, 2014, Karen; her daughter, Laura; her son, Kevin; and Donna went will hunting. First, they visited the McLouth bank where Oroke had a safety deposit box. They did not find a will there, but they found an unsigned codicil to a will.

The group then went to the Jefferson County courthouse. Laura, Kevin, and Donna went inside, while Karen waited in the car. Kevin asked an employee of the clerk of the district court if the will was on file at the court. The court employee said “they didn’t know anything about that” but then asked someone in the back of the clerk’s office if the will was on file. The court employee returned and said the court had no will and codicil on file for Oroke, that “they used to do that, but they don’t do that anymore,” and that the family might try the title of deeds office. Undeterred, the family went to the register of deeds office, where a search once again failed to produce a will. Kevin later spoke with a lawyer who had bought the law office from Oroke’s retired lawyer, but the lawyer was unable to locate any documents relating to Oroke. Kevin and Laura next went to Oroke’s house and looked for the will without success.

Karen was appointed to administer an intestate estate but

In mid-September 2015, Donna hired a lawyer to find the will. On September 25, 2015, with the assistance of the lawyer, the will and codicil were located among the files of the Jefferson County probate court.

The Court of Appeals found that the will was found too late but applied the wrong analysis

Oroke’s will was thus not lost, misplaced, or missing, but was right where it was lawfully supposed to be: in the custody and safekeeping of the court.

A unique circumstance

The circumstances of this case conform in all respects with the requirements of the unique circumstances doctrine: the failure to conform to time restrictions was due directly to the error by the clerk of the district court; Donna acted in good faith (indeed, all heirs acted in good faith); and there was a reasonable basis as to why Donna did not comply with the time restrictions; i.e., she was prevented from doing so by the clerk of the court who failed in exercising the responsibilities imposed by the Legislature and by this court.

Furthermore, the will was located and the petition was filed less than six months after the statutory time restrictions had run and while intestacy proceedings were still pending in the district court. The prejudice to Karen resulting from enlarging the time limitation is small; whereas the injustice to Donna would be great, all because the clerk of the district court failed to remember or to follow the clear edict of the Legislature and this court. Furthermore, allowing the clerk’s mistake to preclude probating the will would defeat the intentions of Oroke, who relied on the law and did everything that the law asked of him, and whose intentions the law seeks to uphold.

Oral argument video linked here. (Mike Frisch)