1. Claims of Undue Influence Differences Between Filing In Ch. 59 and Ch. 60

2. Chapter 59 PROBATE CODE  K.S.A. 59-103. Application of chapter; form of petitions  (a) Chapter 59 of the Kansas Statutes Annotated may be used:  (1) To admit last wills and testaments to probate.  (2) To grant and revoke letters testamentary and of administration.  (3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates.

3. Chapter 58a KANSAS UNIFORM TRUST CODE  K.S.A. 58a-102 Scope  This code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.

4. Chapter 58a KANSAS UNIFORM TRUST CODE  K.S.A. 58a-201 Role of court in administration of trust.  (a) The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.  (b) A trust is not subject to continuing judicial supervision unless ordered by the court.  (c) A judicial proceeding involving a trust may related to any matter involving the trust’s administration, including an action for declaratory judgment pursuant to K.S.A. 60- 1701 et seq., and amendments thereto.

5. Chapter 58a KANSAS UNIFORM TRUST CODE  K.S.A. 58a-406 Creation of trust induced by fraud, duress, or undue influence.  (a) A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

6. Chapter 60 CIVIL PROCEDURE  K.S.A. 60-201(b) Scope  (b) This article governs the procedure in all civil actions and proceedings in district court of Kansas, [except for limited actions].

7. So, what can the Probate Court do/handle?  K.S.A. 59-103(a)(1) – admit last wills and testaments to probate  K.S.A. 59-103(a)(3) – administration of the probate estate

8. Probate Court  Undue Influence/Fraud to Invalidate Will, must amount to:  coercion, compulsion or constraint which destroys the testator's free agency;  by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own; and  it must be brought to bear directly on the testamentary act.

9. Probate Court  Undue Influence in the creation of a Trust or Trust Amendment or Contract can be raised in a Chapter 59 case:  Allegation is that an asset would be part of the probate estate, but for the UI exerted in the creation of the Trust or Trust Amendment or Contract (look at the rules/case law regarding good faith purchaser).  Allegation could be raised by an heir at law or beneficiary under the Will.

10. What does Chapter 60 Court do/handle?  Everything else!

11. Chapter 60 Court  Undue Influence/Fraud to Invalidate Trust/Trust Amendment/Contract, must amount to:  At or about the execution of the contract or transfer, there was an influence bearing upon the will of the contracting party or grantor  That was so potent as to destroy his or her free agency and to substitute the will of another.

12. Burden of Proof  Burden shifts whether in Ch 59 or 60  But burden shifts differently depending on whether Will contest or challenge to creation/execution of Trust or Contract

13. Burden of Proof  Chapter 59 Will contest  Initial Burden is on the proponent of the will to make a prima facie case as to capacity and due execution. See K.S.A. 59-606 and 2224.

14. Burden of Proof – Chapter 59  Once established, burden shifts to contesting party to establish facts sufficient to show lack of capacity, undue influence, etc., by clear and convincing evidence.  If suspicious circumstances are established by the contesting party in an undue influence claim, the burden shifts back to the proponent to rebut presumption of undue influence because of suspicious circumstances.

15. Burden of Proof  Chapter 60 litigation – Trust/Trust Amendment Creation or Contract Execution  Burden shifts

16. Burden of Proof – Chapter 60  Initial burden is on the opponent of the validity of the trust’s/contract’s execution  Where a confidential relationship is shown to exist between parties to a contract, a presumption of undue influence is established.  The burden of proof shifts to the confidant to show that the contract was made in good faith and was not induced by undue influence.

17. Jury vs. Non-Jury Entitlement  Chapter 59 Will contest – not entitled to a jury trial

18. Jury vs. Non-Jury Entitlement  Chapter 60 :  UI re: Creation of Trust or Trust Amendment – not entitled to a jury trial; although may ask for an advisory jury  UI re: Contract Execution – may be entitled to jury trial

19. Chapter 60 – Jury Instructions  See PIK 4 th Civil Jury Instructions:  124.09 Formation of Contracts – Undue Influence  124.08 Formation of Contracts – Undue Influence – Confidential Relationship  124.11 Formation of Contracts – Undue Influence – Defense of Independent Advice [Affirmative Defense]  124.08 Formation of Contracts – Lack of Capacity