Kansas Statutes

Chapter 59: Probate Code

Article 6: Wills

Statutes:

• 59-601: Who may make will.
• 59-602: Limitation on testamentary power.
• 59-603:
• 59-604: Devise or bequest to witness.
• 59-605: Preparation of will or provision of will that gives any devise or bequest to writer or preparer.
• 59-606: Execution and attestation; self-proved wills and codicils; affidavits; form.
• 59-607: Competency of witness.
• 59-608: Nuncupative will.
• 59-609: Will executed without state.
• 59-610: Revocation by marriage, birth or adoption; divorce.
• 59-611: Manner of revocation.
• 59-612: Revocation of second will not revivor of first, when.
• 59-613: After-acquired property.
• 59-614: When devise passes whole.
• 59-615: Devise or bequest to spouse or relative who predeceases testator; "issue" defined.
• 59-616: Probate essential.
• 59-617: Limitation on probate of written will.
• 59-618: Liability and effect of withholding will.
• 59-618a: Filing of certain wills in court; affidavit; admission to probate.
• 59-619: Limitation on probate of oral will.
• 59-620:
• 59-621: Duty of custodian; liability.
• 59-622: Validation of foreign wills filed prior to July 1, 1939.
• 59-623: Reference in will to statement to dispose of certain tangible personal property; admissibility.
• 59-624:

• 59-601: Who may make will. Any person of sound mind, and possessing the rights of majority, may dispose of any or all of his or her property by will, subject to the provisions of this act.

        History:   L. 1939, ch. 180, § 37; July 1.

• 59-602: Limitation on testamentary power. Any devise or other disposition of real estate located in this state taking effect in possession or enjoyment at death, and any bequest or other disposition of any personal property by a resident of this state taking effect in possession or enjoyment at death, without regard to the time when the will or other instrument containing such devise, bequest or other such disposition shall have been made, to any foreign country, subdivision thereof, or city, body politic, or corporation, located therein or existing under the laws thereof, or in trust or otherwise to any trustee or agent thereof, except devises, bequests or other such dispositions to institutions created and existing exclusively for religious, educational, or charitable purposes, is hereby prohibited. Any such devise, bequest or other such disposition shall be void.

        History:   L. 1939, ch. 180, § 38; L. 1992, ch. 79, § 1; L. 1994, ch. 132, § 19; Jan. 1, 1995.

• 59-603:

        History:   L. 1939, ch. 180, § 39; L. 1951, ch. 335, § 1; L. 1992, ch. 79, § 2; Repealed, L. 1994, ch. 132, § 21; Jan. 1, 1995.

• 59-604: Devise or bequest to witness. A beneficial devise or bequest made in a will to a subscribing witness thereto shall be void, unless there are two other competent subscribing witnesses who are not beneficiaries thereunder. But if such witness would have been entitled to any share of the testator's estate in the absence of a will, then so much of such share as will not exceed the value of the devise or bequest shall pass to the witness from the part of the estate included in the void devise or bequest. Such share shall be considered as a legacy or devise within the meaning of K.S.A. 59-1405.

        History:   L. 1939, ch. 180, § 40; July 1.

• 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.

• 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.

• 59-607: Competency of witness. If a witness to a will is competent at the time of his or her attestation, his or her subsequent incompetency shall not prevent the admission of such will to probate.

        History:   L. 1939, ch. 180, § 43; July 1.

• 59-608: Nuncupative will. An oral will made in the last sickness shall be valid in respect to personal property, if reduced to writing and subscribed by two competent, disinterested witnesses within thirty days after the speaking of the testamentary words, when the testator called upon some person present at the time the testamentary words were spoken to bear testimony to said disposition as his or her will.

        History:   L. 1939, ch. 180, § 44; July 1.

• 59-609: Will executed without state. A will executed without this state in the manner prescribed by this act, or by the law of the place of its execution, or by the law of the testator's residence either at the time of its execution or of the testator's death, shall be deemed to be legally executed, and shall have the same force and effect as if executed in compliance with the provisions of this act: Provided, Said will is in writing and subscribed by the testator.

        History:   L. 1939, ch. 180, § 45; July 1.

• 59-610: Revocation by marriage, birth or adoption; divorce. If after making a will the testator marries and has a child, by birth or adoption, the will is thereby revoked. If after making a will the testator is divorced, all provisions in such will in favor of the testator's spouse so divorced are thereby revoked.

        History:   L. 1939, ch. 180, § 46; July 1.

• 59-611: Manner of revocation. Except as provided in K.S.A. 59-610, no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or herself or by another person in the testator's presence by his or her direction.

        History:   L. 1939, ch. 180, § 47; July 1.

• 59-612: Revocation of second will not revivor of first, when. If the testator shall make a second will, the revocation of the second will shall not revive the first will, unless it appears by the terms of such revocation that it was the testator's intention to revive the first will, or unless after such revocation the testator shall duly republish his or her first will in the presence of two or more competent witnesses who shall subscribe the same in the presence of the testator.

        History:   L. 1939, ch. 180, § 48; July 1.

• 59-613: After-acquired property. All property acquired by the testator after making his or her will shall pass thereby in like manner as if possessed by him or her at the time when the testator made his or her will, unless a different intention appears from the will.

        History:   L. 1939, ch. 180, § 49; July 1.

• 59-614: When devise passes whole. Every devise of real estate shall pass all the estate of the testator therein, unless it clearly appears by the will that he or she intended a less estate to pass.

        History:   L. 1939, ch. 180, § 50; July 1.

• 59-615: Devise or bequest to spouse or relative who predeceases testator; "issue" defined. (a) If a devise or bequest is made to a spouse or to any relative by lineal descent or within the sixth degree, whether by blood or adoption, and such spouse or relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived, unless a different disposition is made or required by the will.

        (b)   As used in this section or as used in any will executed on or after July 1, 1973, unless the provisions of such will specifically provide to the contrary, the term "issue" means offspring, progeny or lineal descendants, by blood or adoption, in whatever degree.

        History:   L. 1939, ch. 180, § 51; L. 1968, ch. 339, § 1; L. 1969, ch. 279, § 1; L. 1970, ch. 226, § 1; L. 1973, ch. 230, § 1; July 1.

• 59-616: Probate essential. No will shall be effectual to pass real or personal property unless it shall have been duly admitted to probate.

        History:   L. 1939, ch. 180, § 52; July 1.

• 59-617: Limitation on probate of written will. No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided.

        History:   L. 1939, ch. 180, § 53; L. 1943, ch. 213, § 1; L. 1972, ch. 215, § 1; L. 1985, ch. 191, § 8; July 1.

• 59-618: 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.

• 59-618a: Filing of certain wills in court; affidavit; admission to probate. (a) Any person possessing a decedent's will may file in the district court of the county of the decedent's last residence the decedent's will and an affidavit which complies with subsection (b) if the decedent's estate contains no real property and the value of the decedent's estate is less than the total of all demands enumerated in K.S.A. 59-1301 and amendments thereto.

        (b)   An affidavit filed pursuant to this section shall state: (1) The name, residence address and date and place of death of the decedent; (2) the names, addresses and relationships of all the decedent's heirs, legatees and devisees which are known to the affiant after a diligent search and inquiry; (3) the name and address of any trustee of any trust established under the will; (4) the property left by the decedent and its approximate valuation; (5) the approximate amount and nature of any demands enumerated in K.S.A. 59-1301 and amendments thereto which were outstanding against the decedent's estate upon the decedent's death; (6) that the will is being filed with the district court for the purpose of preserving it for record in the event that probate proceedings are later required; and (7) that a copy of the affidavit and will has been mailed to each heir, legatee and devisee named in the affidavit.

        (c)   Any will filed pursuant to this section within a period of six months after the death of the testator may be admitted to probate after such six-month period.

        History:   L. 1977, ch. 196, § 1; L. 1982, ch. 235, § 1; L. 1984, ch. 147, § 12; L. 1985, ch. 191, § 10; L. 1996, ch. 234, § 14; July 1.

• 59-619: Limitation on probate of oral will. No oral will of a testator who died while a resident of this state shall be admitted to probate unless an application is made therefor within six months after the death of the testator, except as provided by K.S.A. 59-2229 and 59-2230, and amendments thereto.

        History:   L. 1939, ch. 180, § 55; L. 1982, ch. 235, § 2; July 1.

• 59-620:

        History:   L. 1939, ch. 180, § 56; L. 1953, ch. 273, § 1; L. 1976, ch. 242, § 7; Repealed, L. 1995, ch. 103, § 2; July 1.

• 59-621: Duty of custodian; liability. After the death of a testator the person having custody of the testator's will shall deliver it to the court which has jurisdiction thereof. Every person who willfully neglects or refuses to deliver a will after being duly ordered to do so shall be guilty of contempt of court. Such person shall be further liable to any party aggrieved for the damages which may be sustained by such neglect or refusal.

        History:   L. 1939, ch. 180, § 57; July 1.

• 59-622: Validation of foreign wills filed prior to July 1, 1939. Any foreign will filed of record in any county of this state prior to July 1, 1939, is hereby declared to satisfy the legal requirements for filing of a foreign will, even if such filing did not, in the first instance, meet specific statutory requirements for the filing of such a will.

        History:   L. 1970, ch. 227, § 1; July 1.

• 59-623: Reference in will to statement to dispose of certain tangible personal property; admissibility. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of debt, documents of title, securities, and properties used in trade or business. To be admissible under this section as evidence of intended disposition, the writing either must be in the handwriting of the testator or be signed by the testator, and must describe the items with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; and it may be altered by the testator after its preparation.

        History:   L. 1975, ch. 299, § 28; Jan. 1, 1976.

• 59-624:

        History:   L. 1989, ch. 172, § 1; Repealed, L. 2003, ch. 8, § 1; July 1.