KANSAS OFFICE of
  REVISOR of STATUTES

  

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59-606. Execution and attestation; self-proved wills and codicils; affidavits; form. Every will, except an oral will as provided in K.S.A. 59-608 and amendments thereto, shall be in writing, and signed at the end by the party making the will, or by some other person in the presence and by the express direction of the testator. Such will shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the will. Such will, at the time of its execution or at any subsequent date during the lifetimes of the testator and the witnesses, may be made self-proved, and the testimony of the witnesses in the probate of the will may be made unnecessary by the acknowledgments of the will and the affidavits of the testator and the attesting witnesses. Such acknowledgments and affidavits shall be made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths. Such acknowledgments and affidavits shall be evidenced by the certificate, with official seal affixed, of such officer attached or annexed to such will in form and contents substantially as follows:

State of ______________

County of __________ ss.

Before me, the undersigned authority, on this day personally appeared __________, __________, and __________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of such persons being by me first duly sworn, such __________, testator, declared to me and to the witnesses in my presence that such instrument is the testator's last will and testament, and that the testator had willingly made and executed it as the testator's free and voluntary act and deed for the purposes therein expressed. Such witnesses, each on the witness' oath stated to me, in the presence and hearing of the testator, that the testator had declared to them that such instrument is the testator's last will and testament, and that the testator executed same as such and wanted each witness to sign it as a witness. Upon their oaths each witness stated further that they did sign the will as witnesses in the presence of each other and in the presence of the testator and at the testator's request, and that the testator at that time possessed the rights of majority, was of sound mind and under no restraint.

______________________________

(Testator)

______________________________

(Witness)

______________________________

(Witness)

Subscribed, acknowledged and sworn to before me by __________, testator, and __________ and __________, witnesses, this _____ day of __________, A.D. __________.

(seal)

(Signed) ______________________________

______________________________

(Official capacity of officer)

If an affidavit substantially in conformance with the affidavit described in this section is executed at the time of the execution of the will, no other signatures of the witnesses or any other attestation clause is required.

A self-proved will, unless contested, shall be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. A self-proved will may be contested or be revoked, or be amended by a codicil in the same fashion as a will not self-proved. A codicil or the consent to take under the will by the spouse may be self-proved in the same manner as a will may be self-proved.

History: L. 1939, ch. 180, § 42; L. 1975, ch. 299, § 3; L. 1976, ch. 245, § 2; L. 1990, ch. 199, § 1; L. 1999, ch. 55, § 1; July 1.

Source or prior law:

22-202.

Cross References to Related Sections:

Evidence of due execution of will, see 59-2224.

Law Review and Bar Journal References:

Location of signature on a will, 4 K.L.R. 471 to 473 (1956).

Comment on Totten trusts, 9 K.L.R. 46, 52 (1960).

Brief discussion of differences between this section and comparable proposed Uniform Probate Code section, Camilla Klein Haviland, 19 K.L.R. 575, 578 (1971).

The viability of trusts payable on death of settlor. 14 W.L.J. 194, 199 (1975).

"A Practical Review of the 1975 Kansas Probate Code Revisions," Philip S. Frick, 44 J.B.A.K. 137, 138 (1975).

Survey of decedents' estates, Frank Diehl, 15 W.L.J. 358 (1976).

"Survey of Kansas Law: Wills, Trusts, and Probate," 29 K.L.R. 595, 601 (1981).

"Wills: The Anatomy of a Statute—When Is a Valid Will Not Valid?" Melinda Swanson, 71 W.L.J. 741, 743 (1982).

"Will Substitutes in Kansas," Jana J. Deines and Michael E. McMahon, 23 W.L.J. 132, 148 (1983).

"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, 405 (1984).

"Decedents Estates: Revocable Trusts and The Surviving Spouse's Share: How Much Is Enough? [ Newman v. George , 243 Kan. 183, 755 P.2d 18 (1988)]," Gary Patterson, 28 W.L.J. 430, 433 (1989).

"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 24 (1995).

"'Notarize This': The Notary's and the Lawyer's Liability for Forged Signatures," J. Nick Badgerow, 73 J.K.B.A. No. 8, 18, 22 (2004).

CASE ANNOTATIONS

1. Oral express trust testamentary in character invalid; constructive trust; dissenting opinion. Yeager v. Yeager, 155 K. 734, 739, 129 P.2d 242.

2. Nuncupative will cannot revoke or alter prior written will. In re Estate of Grattan, 157 K. 116, 119, 124, 138 P.2d 497.

3. Evidence sustained finding will not properly witnessed and attested. In re Estate of Charles, 158 K. 221, 222, 146 P.2d 395.

4. Attestation clause prima facie evidence of facts therein stated; evidence of witness must be clear and convincing to overcome attestation clause; will proponent has burden of making prima facie case. In re Estate of Wallace, 158 K. 633, 634, 639, 640, 149 P.2d 595.

5. Statute does not prescribe formalities; attestation and testimonium clauses sufficient. In re Estate of Williams, 158 K. 734, 741, 150 P.2d 336. Reaffirmed: 159 K. 232, 153 P.2d 906.

6. Only two ways to make valid will in Kansas; testator must sign at end of will; signature in body of will insufficient. In re Estate of Bond, 159 K. 249, 251, 252, 153 P.2d 912.

7. "Warranty deeds" held testamentary in character; void; deed and will distinguished. Lowry v. Lowry, 160 K. 11, 14, 159 P.2d 411.

8. Evidence sufficient to sustain finding that will was properly executed. In re Estate of Wittman, 161 K. 398, 400, 168 P.2d 541.

9. "Will" as used in statute defined; will may be contractual in character; will need not be published; witnesses need not know instrument is a will. In re Estate of Koellen, 162 K. 395, 400, 176 P.2d 544.

10. Cited; mental incapacity; evidence insufficient to support judgment refusing probate. In re Estate of Harris, 166 K. 368, 371, 201 P.2d 1062.

11. Will proponent has burden of proof as to proper execution. In re Estate of Moore, 166 K. 556, 559, 561, 203 P.2d 192.

12. Will need not be published; proof of execution; burden of proof; presumptions. In re Estate of Randall, 167 K. 62, 64, 65, 204 P.2d 699.

13. Contract and testamentary instrument held "signed at the end." In re Estate of Ellis, 168 K. 11, 22, 210 P.2d 417.

14. Testatrix's conduct held acknowledgment of will and signature; statute construed. In re Estate of Davis, 168 K. 314, 318, 320, 322, 212 P.2d 343.

15. Instrument construed to be antenuptial agreement, not a will. In re Estate of Greenleaf, 169 K. 22, 24, 217 P.2d 275.

16. Not necessary that witness see testator sign if testator acknowledges "the same"; acknowledgment may be established by words, conscious acts or conduct of testator; same rules applicable to codicils. Humphrey v. Wallace, 169 K. 58, 60, 61, 62, 216 P.2d 781.

17. Evidence sufficient to show will executed according to law; undue influence. In re Estate of Hurd, 171 K. 375, 233 P.2d 703.

18. Where attestation appears proper, person challenging has duty to prove otherwise. In re Estate of Arney, 174 K. 64, 65, 67, 254 P.2d 314.

19. Evidence held to establish prima facie case of due execution of will. Amerine v. Amerine, Executor, 177 K. 481, 482, 484, 280 P.2d 601.

20. Discussed; district court action to establish alleged personal property mortgage constituted demand; probate court jurisdiction. Shields v. Fink, Executrix, 190 K. 17, 27, 372 P.2d 252.

21. Proximity between witnesses and testator was not sufficient to establish "presence"; will unauthorized for probate. In re Estate of Weber, 192 K. 258, 261, 265, 387 P.2d 165.

22. Survivor's rights in two-party bank account terminated; reserved power of revocation exercised. Bowen, Administrator v. Hathaway, 202 K. 107, 115, 446 P.2d 723.

23. Statute not mandatory that testator subscribe signature in presence of witnesses if witnesses observe signature and testator acknowledges will. In re Estate of Perkins, 210 K. 619, 624, 625, 626, 504 P.2d 564.

24. Savings account made payable to church institution on death; testamentary in character; not executed in compliance with section; invalid. Truax v. Southwestern College, 214 K. 873, 878, 883, 522 P.2d 412.

25. Attestation resembling affidavit in form, signed by witnesses and appearing after all dispositive provisions held valid. In re Estate of Petty, 227 K. 697, 700, 702, 703, 608 P.2d 987.

26. Cited; subscribing witness who was also executor is not a testamentary beneficiary; executor had no pecuniary interest. In re Estate of Giacomini, 4 K.A.2d 126, 127, 129, 603 P.2d 218.

27. "Subscribed" means "signed at the end"; document executed in another state and not signed by maker is not entitled to original probate as a will in Kansas. In re Estate of Reed, 229 K. 431, 433, 434, 435, 437, 625 P.2d 447.

28. Statute construed; document held not a will (see, In re Estate of Reed, 229 K. 431, 625 P.2d 447). In re Estate of Reed, 233 K. 531, 533, 664 P.2d 824 (1983).

29. Noted; where executed copy of will retained by testator but cannot be found after death, rebuttable presumption of revocation arises. In re Estate of Mettee, 237 K. 652, 702 P.2d 1381 (1985).

30. Cited; 59-3004 inherently requires that will be probated before it is effective for appointment for guardianship purposes. In re Guardianship of Slemp, 11 K.A.2d 156, 158, 159, 717 P.2d 519 (1986).

31. Totten trusts are required to be executed according to the required formalities of section. In re Estate of Morton, 12 K.A.2d 26, 31, 733 P.2d 834 (1987).

32. Filing of a motion for rehearing of the order on rehearing does not defeat the jurisdiction of the court first acquiring jurisdiction on a proper petition for judicial review. Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm'n, 241 K. 165, 170, 171, 172, 735 P.2d 241 (1987).

33. Cited; 9-1215 and 17-5828 validate Totten trusts; need not comply herewith. In re Estate of Morton, 241 K. 698, 704, 740 P.2d 571 (1987).

34. Cited where 9-1215 construed to exclude payable-on-death accounts from all provisions of probate code. Snodgrass v. Lyndon State Bank, 15 K.A.2d 546, 551, 811 P.2d 58 (1991).

35. Trial court erred in finding formalities of execution invalidated consent of spouse to will. In re Estate of Hessenflow, 21 K.A.2d 761, 768, 909 P.2d 662 (1995).

36. Validity of self-proving affidavit need not be proved as two subscribing witnesses testified at trial of will contest. In re Estate of Farr, 274 K. 51, 49 P.3d 415 (2002).

37. Witness' initials in bottom corner of every page do not meet attestation and subscription requirements. In re Estate of Leavey, 41 K.A.2d 423, 202 P.3d 99 (2009).


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