59-605. Preparation of will or provision of will that gives any devise or bequest to writer or preparer. Any provision in a will, written or prepared for another person, that gives the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse any devise or bequest is invalid unless:
(a) The writer or preparer is related to the testator by blood, marriage or adoption and the devise or bequest is not more than the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse would receive under the laws of intestate succession, if the property passed in that manner; or
(b) it affirmatively appears that the testator had read or knew the contents of the will and had independent legal advice with reference thereto. As used in this section, "children" and "issue" shall have the same meaning as provided in K.S.A. 59-501, and amendments thereto.
History: L. 1939, ch. 180, § 41; L. 2002, ch. 135, § 2; L. 2004, ch. 73, § 1; July 1.
Source or prior law:
22-214.
Law Review and Bar Journal References:
"Validity of Consent to a Spouse's Will," Tom L. Schwinn, 45 J.B.A.K. 33 (1976).
"Attorney Fees: The Meaning of 'Successfully Opposes the Probate of a Will' For a Grant of Attorney Fees Under Kan. Stat. Ann. § 59-1504," Lillian Apodaca, 23 W.L.J. 399, 406 (1984).
"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 23, 28, 30 (1995).
"2002 Legislative Wrap-Up," Paul T. Davis, 71 J.K.B.A. No. 7, 15 (2002).
CASE ANNOTATIONS
1. Section does not extend to making deeds or gifts; principles applicable. Overstreet v. Beadles, 151 Kan. 842, 848, 101 P.2d 874.
2. Question of independent advice immaterial where principal beneficiary did not prepare will. In re Estate of Horton, 154 Kan. 269, 274, 118 P.2d 527.
3. Evidence did not establish will written by principal beneficiary. In re Estate of Peirano, 155 Kan. 48, 53, 122 P.2d 772.
4. Evidence sustained finding of lack of independent advice; will invalid. In re Estate of Casida, 156 Kan. 73, 78, 131 P.2d 644.
5. Facts considered and beneficiary held not "confidential agent or legal adviser." Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 172, 174, 131 P.2d 691.
6. Independent advice unnecessary where principal beneficiary not shown to be scrivener. In re Estate of Koellen, 162 Kan. 395, 403, 176 P.2d 544.
7. Trustee of trust created by will is not "principal beneficiary." In re Estate of Porter, 164 Kan. 92, 96, 187 P.2d 520.
8. Under evidence testamentary document held not prepared by principal beneficiary. In re Estate of Ellis, 168 Kan. 11, 23, 24, 210 P.2d 417.
9. Inapplicable where will not prepared by principal or sole beneficiary. In re Estate of Smith, 168 Kan. 210, 211, 215, 212 P.2d 322.
10. Principal beneficiary under evidence held not writer of will or confidential agent; section construed. In re Estate of Schippel, 169 Kan. 151, 152, 160, 162, 218 P.2d 192.
11. Evidence failed to show will prepared by attorney for principal beneficiary. In re Estate of Arney, 174 Kan. 64, 68, 69, 254 P.2d 314.
12. Section held inapplicable where attorney for father of beneficiary was scrivener. In re Estate of Guest, 182 Kan. 760, 764, 324 P.2d 184.
13. Mentioned in denying probate of "second" will; district court findings and conclusions upheld. Doty, Executor v. Martin, 203 Kan. 421, 424, 454 P.2d 435.
14. Section construed; attorney who prepared will not principal beneficiary; bequest of remaining residue upheld. In re Estate of Barclay, 215 Kan. 129, 130, 131, 133, 135, 523 P.2d 376.
15. Cited; subscribing witness who was also executor is not a testamentary beneficiary; executor had no pecuniary interest. In re Estate of Giacomini, 4 Kan. App. 2d 126, 127, 129, 603 P.2d 218.
16. Parts of will held valid where invalid provisions can be deleted without defeating will of testator. In re Estate of Robinson, 231 Kan. 300, 305, 306, 307, 308, 309, 644 P.2d 420 (1982).
17. Trial court ruled will invalid for violation hereof; reversed and remanded with direction to admit will to probate. In re Estate of Robinson, 232 Kan. 752, 753, 659 P.2d 172 (1983).
18. Statute inapplicable where independent attorney drafted will at request of attorney who was confidential advisor and principal beneficiary. In re Estate of Kern, 239 Kan. 8, 18, 716 P.2d 528 (1986).
19. Cited; applicability of statute where scrivener of will is wife of principal beneficiary examined. In re Estate of Alexander, 12 Kan. App. 2d 516, 749 P.2d 1052 (1988).
20. Cited in holding that venue for action to construe testamentary trust is in county where will admitted for probate. Godfrey v. Chandley, 248 Kan. 975, 983, 811 P.2d 1248 (1991).
21. When scrivener is not beneficiary nor receives input from beneficiaries, independent legal advice requirement is inapplicable. In re Estate of Koch, 18 Kan. App. 2d 189, 199, 849 P.2d 143 (1993).
22. Heir of decedent improperly prepared will when attorney of heir's choosing acted as scrivener. In re Estate of Bolinder, 19 Kan. App. 2d 72, 77, 864 P.2d 228 (1993).
23. Whether will should be denied probate because beneficiary allegedly helped prepare decedent's will examined. In re Estate of Bennett, 19 Kan. App. 2d 154, 174, 865 P.2d 1062 (1994).
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