Contesting a Will in Kansas

When people take the time and effort to write a will, they rarely expect that it will be contested after they have passed away.

Yet will contests are surprisingly common in Kansas.

Only an heir of the deceased or a beneficiary may contest a will in Kansas. The difference between the two is that an heir would ordinarily be entitled to an inheritance if a will did not exist (e.g., a surviving spouse or child of the deceased) whereas a beneficiary is specifically named as an inheritor of assets in a will.

Providing you have legal standing to contest a will, an application must be made to the probate court in Kansas and a judge will be asked to decide after evaluating the testimony.

People make wills to designate how their property will be distributed after they pass away.

The document usually names a person to look after the administration and disposal of the estate (an executor) and beneficiaries who will receive certain assets. Some wills may even name individuals who are to be excluded from receiving anything.

Wills can also specify what should happen to dependent children in the event of the will-maker’s death — by appointing a guardian.

The contents of a will may lead to anger, resentment and family disputes but these are not valid legal reasons to contest a will in Kansas. You must have both legal standing and valid grounds (see the following sections) to progress a case through the courts.

To have legal standing to contest a will in Kansas, you must be a beneficiary or a person not named in the will who would ordinarily have inherited assets under the state’s intestacy laws. Intestacy laws govern what happens to a person’s estate if they die without a will.

Beneficiaries who are written out of the most recent version of the will but named in a previous version may also have the proper standing to contest it if valid grounds can also be demonstrated.

A person with standing who is simply upset that the will excludes them as a beneficiary or leaves them an insufficient share of the assets cannot usually initiate a case to contest a will.

There must be a solid legal basis to the contest — beyond its contents being deemed “unfair”. A will that is seen as unfair by family members can still meet the necessary regulatory requirements.

Valid reasons to contest a will in Kansas include:

• Wrongful exclusion from a will (like a surviving spouse or a child who has the right to be adequately looked after in a will).
• The testator’s lack of mental capacity when the will was made (he or she was not of sound mind at the time the document was created).
• Undue influence was exerted on the testator to make or modify the will (such as a relative or caregiver, who convinces the testator that they should receive a major portion of the estate).
• Technical flaws, which can render a will legally invalid because it fails to meet the laws of Kansas, e.g., a modification was made without the signatures of two witnesses or it attempts to distribute property that is not legally part of the estate.
• Fraud, such as if a will has been forged or the testator was tricked into signing the will.
• The presence of a more recent version of the will, which was previously unknown.

One or more of these legal grounds for contesting a will may apply in your case. As part of the process, you will be expected to demonstrate why you have a valid claim.

This usually requires the skills of an experienced probate attorney, especially considering that these matters have the power to cause rifts within families and often occur at emotional and stressful times for all concerned.

There is no law stating that you must be represented by an attorney in such matters. You are entitled to present your case yourself.

However, with the stakes in wills and estate disputes often high and probate law complex, it is generally advisable to seek the assistance and experience of a probate attorney to help you navigate the legal system and present your case.

If you are contesting a will, the burden of proof is on your shoulders. A knowledgeable probate attorney will thoroughly review your case and ensure that you fully understand the potential risks and rewards of filing a case.

Sometimes, a contestor may have a valid case for a will to be set aside (see the “reasons for contesting a will” section) but the potential costs of proving this in court may outweigh the potential gains from a successful case. A financial decision may, therefore, need to be made on whether to proceed with the case.

Usually, when a will is probated in Kansas, a notice must be sent to creditors to inform them of the death of the will-maker. This is usually in the form of a published notice once a week for three consecutive weeks in a newspaper authorized by law to publish legal notices in the county in which the deceased was resident.

Under Kansas law, an heir or beneficiary must file a contest no more than four months from the date of the first publication to creditors. If the identity of all creditors is known, the deadline is shortened to 30 days.

There is generally a short time span, therefore, for an heir or beneficiary to file a contest with the court. If the deadline is missed, the court may not be able to hear the case — another reason to seek the assistance of a probate lawyer, who will be used to these matters.

If you have any questions about probate or contesting a will in Kansas, speak to a will & probate lawyer at ITR Law in Topeka during a free case evaluation. Call us directly at (785) 267-6115 to set up an appoint or contact us online. We can advise you of your legal options.