In Kansas, only an heir or beneficiary may contest a will. An heir is a relative who would be entitled to an inheritance if a will does not exist or is rendered invalid, such as a surviving spouse or children of the deceased. A beneficiary is someone designated in a will to receive property or funds. The probate court will allow a hearing challenging a will and evaluate testimony from at least two witnesses, either in person, by affidavit or by deposition.
Kansas law outlines various grounds under which a person may contest a will. A will may be contested if the testator, or the person executing the will, was mentally incompetent at the time the will was executed. This means the testator was unable to understand their actions in executing the will. An heir or beneficiary may also contest a will if the testator was acting under fraud, duress or undue influence. Also, a will may be challenged if it was not executed properly or if it is ambiguous.
The court follows criteria to establish whether one of the acceptable grounds exists. For example, if a testator was of sound mind when the will was executed, it does not matter that the testator later developed dementia and is no longer of sound mind. If a person contests a will arguing the testator was under undue influence, that person has the burden of proving it as long as the will was properly executed. The court must be convinced that the undue influence was serious enough to be considered coercion, compulsion or constraint.
Kansas law sets a few different deadlines for when an heir or beneficiary may contest a will. A person may not contest a will after four months have passed from the date of first publication of notice to creditors. The deadline is shortened to 30 days when the identity of creditors are known or reasonably ascertainable. If the court enters an order enforcing the will or refusing to enforce the will, a person must file an appeal within 30 days from the date of entry of the order.
How a will is handled ultimately depends on whether a challenge to the will by an heir or beneficiary is successful. If the will is successfully contested and thrown out, the court may simply distribute the estate's property as if no will existed. The court may also enforce portions of the will that were not contested and throw out the rest. Another option is for the court to enforce a previous will if one existed.
Read More: Can You Contest a Will After Probate?
- Morris, Laing, Evans, Brock & Kennedy: Wichita, Kansas Probate Practice Areas & Legal Definitions
- Kansas Statutes: Chapter 59: Probate Code: Article 22: Probate Procedure
- Kansas Statutes: Chapter 59: Probate Code: Article 6: Wills
- In re Estate of Alta E. Oliver, 23 Kan. App. 2d 510 (1997)
- Kansas Statutes: Chapter 59: Probate Code: Article 24: Appeals and Transfers
Mark Vansetti is a licensed attorney and, along with his Juris Doctor, holds bachelor's degrees in both human biology and economics. Throughout his professional career, he has written on a variety of topics for the American Bar Association Health Law Section, FindLaw and other websites. Vansetti also served as the senior editor of his law school's law review.