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NOT DESIGNATED FOR PUBLICATION

No. 120,931

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Estate of

JAMES E. THORN.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed April 17, 2020. 

Affirmed.

James T. McIntyre, of Law Offices of James T. McIntyre, of Wichita, for appellant Jamea 

Wilson.

Shane A. Rosson, of Triplett Woolf Garretson, LLC, of Wichita, for appellee Kimberly Tolley.

Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.

PER CURIAM: On March 2, 2018, James E. Thorn died testate. Upon the death of 

her father, Kimberly Tolley petitioned the district court to admit Thorn's Last Will and 

Testament (the Will) to probate. The petition reflected Thorn was survived by his two 

daughters, Tolley and Jamea Wilson. Wilson filed an objection to the admission of the 

Will to probate, claiming Thorn lacked testamentary capacity to make the Will or, in the 

alternative, the Will was the product of undue influence. In addition to making provisions 

for the benefit of his daughters, Thorn inserted an in terrorem clause in the Will stating 

anyone who challenged the admission of the Will to probate without probable cause

would be disinherited and receive nothing under the Will.
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Following an evidentiary hearing, the district court admitted the Will to probate, 

finding: (1) Thorn had testamentary capacity at the time he executed the Will; (2) the 

Will was not the product of undue influence; and (3) Wilson did not have probable cause 

to contest the Will. As a result of these findings and after the appropriate petition was 

filed by Tolley, the district court enforced the in terrorem clause. On appeal, Wilson

argues points (1) and (3) were erroneously decided; she does not appeal the district 

court’s finding the Will was not the product of undue influence. Upon examination of the 

record, we find substantial competent evidence supports the district court's decision on 

both issues appealed. We affirm.

FACTS

We briefly set out the facts as they are well known to the parties. In October 2018, 

the district court admitted Thorn's Will to probate following his death in March 2018. In 

addition to his two children, Thorn had a longtime companion, Betty Marshall, who he 

met in 1981. Thorn began experiencing falls and health-related issues in January 2018,

resulting in his hospitalization; he experienced some confusion during one or more of his 

hospital stays but quickly improved; and he participated in rehabilitation services. During 

this time, he visited with his attorney friend Sean Brennan about his estate plans. Brennan 

referred Thorn to Jennifer Stultz, an experienced estate planning attorney. Marshall and 

Brennan contacted Stultz and planned for Thorn to meet with her.

Stultz first met with Thorn on January 16, 2018. Stultz recalled Thorn asking 

several appropriate questions and responding appropriately to her questions. Thorn 

discussed various property he owned, including: his assets; a safety deposit box and its 

contents; paperwork related to unclaimed property his parents had owned, which was 

held by the Secretary of State; a safe in his garage and its contents; his vehicle, home, and 

firearms; two storage units he owned; and cemetery plots his parents had owned. Thorn 

also talked to Stultz about his two children, Wilson and Tolley, as well as about Wilson's 
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children and Tolley's children. Thorn told Stultz he wanted Tolley to receive a significant 

portion of his estate outright and Wilson to receive a lesser portion of his estate. He

expressed concerns Wilson was irresponsible and he wanted her share of the estate held 

in trust, to be paid at $500 per month until exhausted. Thorn was also concerned Wilson 

might contest his Will, so Stultz specifically discussed with Thorn including an in 

terrorem clause.

Stultz again visited with Thorn on or about January 22, 2018, regarding how much 

he wanted to leave in trust for Wilson. Thorn told Stultz he wanted to leave $70,000 for 

Wilson. Stultz prepared Thorn's Will and other estate planning documents in accordance 

with their discussions. Stultz met with Thorn in person for approximately two hours on 

January 23, 2018, to review the Will and other documents prepared by her. Stultz' 

administrative assistant, Scott Lawrence, accompanied her to the meeting. Stultz did not 

observe any signs of confusion in Thorn during their meetings. Stultz reviewed Thorn's 

Will and the other documents with him, and he asked appropriate and intelligent 

questions before executing them on January 23, 2018. Thorn confirmed the Will and 

other documents reflected what he wanted to do with his estate. Stultz believed Thorn 

understood the provisions of his Will and the other documents he executed. Lawrence, 

one of the witnesses to the Will, also observed no signs of confusion and noted Thorn 

asked appropriate questions during the meeting.

Tolley and Marshall were also present for parts of the meeting on January 23, 

2018. Marshall did not observe any confusion during the portion of the meeting at which 

she was present. At the end of the meeting, Stultz discussed the Will and other documents 

with Thorn without Tolley or Marshall present. Thorn executed the Will and other 

documents in Stultz' presence and in the presence of the two disinterested witnesses—

Lawrence and Virginia Rowsey, the manager of the facility where Thorn was living. 

After Thorn signed his Will, the two witnesses signed as attesting witnesses. Rowsey 
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observed no signs of confusion and believed Thorn "absolutely" understood what was 

happening.

After executing the Will and the other estate planning documents, Thorn's health 

declined and, as a result of one of his hospitalizations, cancerous masses were found in 

his lungs. Thorn went into hospice care and later died from lung cancer on March 2, 

2018.

Tolley filed a petition to admit Thorn's Will to probate on March 14, 2018. The 

district court filed an order on March 15, 2018, setting a hearing date for April 17, 2018. 

Notice was mailed to Wilson on March 16, 2018. Wilson retained an attorney who 

entered an appearance on her behalf on March 19, 2018. Through her attorney, Wilson 

filed an objection to the admission of the Will on April 16, 2018, and asserted Thorn 

suffered from chronic alcoholism as well as numerous medical problems before 

executing the documents at issue. Wilson alleged Thorn lacked capacity to execute the 

documents, or, in the alternative, the documents were the product of undue influence.

Stultz, Lawrence, Rowsey, Marshall, and Wilson testified at the bench trial. Stultz, 

Lawrence, Rowsey, and Marshall each testified regarding the matters previously 

discussed herein. Wilson testified she saw Thorn every day in January 2018, and Thorn 

recognized her and her husband every time they visited him. Although Wilson alleged 

Thorn was an alcoholic, she acknowledged he did not consume any alcohol on the date he 

executed the Will. Wilson claimed Thorn had an estate plan drafted by a different law 

firm but acknowledged her attorney issued a business record subpoena to the firm and no 

documents were produced in response. Wilson admitted she had financial troubles; 

several creditors had open judgments against her, she had declared bankruptcy a few 

years earlier, and she had recently been sued by a Ford dealership and Ford Motor Credit. 

Wilson acknowledged the trust's spendthrift provision would protect the money from her 

creditors.
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The district court admitted the Will to probate, finding Thorn had the requisite 

testamentary capacity at the time the Will was executed and the Will was not the product 

of undue influence. The district court further found Wilson's challenge fell within the 

scope of the in terrorem clause but withheld judgment on enforcement of the clause. 

Tolley petitioned to enforce the in terrorem clause. The record reflects the district court 

held a hearing on the petition; however, a transcript of the hearing is not included in the 

record. The district court in its written order held: "Wilson did not have probable cause 

to contest [Thorn's] estate plan. Therefore the Court hereby enforces the in terrorem

provision."

ANALYSIS

On appeal Wilson limits her argument to two issues. Wilson claims the district 

court erred in finding (1) Thorn had capacity to execute the Will and (2) the in terrorem

clause should be enforced.

Thorn had capacity to execute his Will.

"When offering a will to probate, the burden of proof is initially upon the 

proponent to make a prima facie case showing capacity and due execution of the will." In 

re Estate of Farr, 274 Kan. 51, 58-59, 49 P.3d 415 (2002). Once such a showing has been 

made, the burden is on the party contesting the will to prove a lack of testamentary 

capacity. 274 Kan. at 59. The contesting party must prove "lack of testamentary capacity 

by clear, satisfactory, and convincing evidence." 274 Kan. at 64. Whether testamentary 

capacity exists is a question of fact. In re Estate of Harris, 166 Kan. 368, 372, 201 P.2d 

1062 (1949). Our review of the district court's finding is limited and "is only concerned 

with the inquiry whether there was substantial competent evidence to support the trial 

court's finding of capacity. [We do] not compare or weigh testimony." In re Estate of 

Perkins, 210 Kan. 619, 626, 504 P.2d 564 (1972).
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In order to have testamentary capacity, the testator must

"know and understand the nature and extent of his or her property and have an intelligent 

understanding of the disposition he or she desires to make of it, realize who his or her 

relatives are and the natural objects of his or her bounty, and comprehend the nature of 

the claims of those he or she desires to include and exclude from participation in the 

property distribution." In re Estate of Farr, 274 Kan. 51, Syl. ¶ 5.

Here, Stultz' testimony reflects Thorn understood what property was covered by 

the Will, how he wanted it distributed, who his children were, what property he wanted 

them to receive, and how he wanted them to receive it. Stultz observed no indication 

Thorn was confused or pressured when she discussed the Will and other estate planning

documents with him during the month of January 2018. Based on this evidence, Tolley 

made a prima facie showing of capacity, which shifted the burden to Wilson.

Wilson argues the district court erred in finding Thorn had testamentary capacity, 

claiming the district court's conclusion was not supported by substantial competent 

evidence. Wilson incorrectly asserts the standard of review is abuse of discretion. Here, 

however, the issue is not whether the district court erred in finding testamentary capacity; 

but rather, whether Wilson rebutted the prima facie showing of capacity. See In re Estate 

of Farr, 274 Kan. at 58-59. Among Wilson's contentions regarding Thorn's capacity was

the fact he showed confusion at various times between December 2017 and February 

2018, as well as his misspelling of Wilson's first name—"Jama" as opposed to "Jamea"—

in the Will and related trust documents.

The district court found the testimony of the subscribing witnesses showed Thorn 

had the requisite mental capacity to execute his Will and the misspelling of Wilson's first 

name was insufficient. In its oral ruling, the district court discussed the various evidence 

regarding Thorn's medical issues and documented periods of confusion within the 

relevant timeframe. However, it held: "As to the testamentary capacity, the important 
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date is the date the will was signed." The district court specifically noted it had "the 

ability to look at periods of time surrounding the will, that before and that after, in order 

to make a determination as to whether . . . [Thorn] . . . had testamentary capacity." Based 

on the district court's oral explanation of its ruling and its written findings, the record 

reflects the district court rejected Wilson's contentions that Thorn lacked testamentary

capacity.

The district court's determination that Wilson did not meet her burden of proof is a 

negative factual finding. In reviewing a negative finding, we consider whether the district 

court arbitrarily disregarded undisputed evidence or relied upon some extrinsic 

consideration such as bias, passion, or prejudice to reach its decision. The negative 

finding standard applies to the district court's determination on an objection to the 

admission of documents to probate. See Cresto v. Cresto, 302 Kan. 820, 845, 358 P.3d 

831 (2015).

Wilson's argument is unpersuasive as she has not shown the district court 

disregarded undisputed evidence. Stultz' testimony as an experienced lawyer indicates 

Thorn had capacity at the time the Will provisions were discussed, drafted, and executed. 

Stultz' observations of Thorn's mental state were corroborated by Marshall, Lawrence, 

and Rowsey. Marshall did not believe Thorn was confused in either of his meetings with 

Stultz. Lawrence indicated Thorn appeared alert during the January 23rd meeting with 

Stultz and did not exhibit any signs of confusion. Lawrence testified Stultz discussed the 

in terrorem clause and the other provisions of the Will with Thorn and Thorn confirmed 

the Will and other documents were consistent with his wishes. Lawrence believed Thorn 

understood what he was signing. Like Marshall and Lawrence, Rowsey also believed 

Thorn understood what he was doing and did not exhibit any signs of confusion.
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Wilson's argument rests on contrary evidence, most of which is supported by 

material attached to her brief and not included in the record on appeal. The attached 

evidence is highly disputed by the testimony of Stultz, Marshall, Lawrence, and Rowsey.

The evidence shows there were no concerns about Thorn's capacity or 

understanding when he signed the Will on January 23, 2018. Thorn's prior 

hospitalizations did not affect his capacity on the day he signed his Will. Wilson has not 

shown the district court disregarded undisputed evidence, nor has she argued or 

demonstrated the district court's decision was based on improper extrinsic considerations 

such as bias, passion, or prejudice. Wilson has failed to show the district court erred in 

admitting the Will to probate.

Wilson lacked probable cause to contest the Will.

The in terrorem clause in Thorn's Will penalized anyone who challenged the 

admission of his Will to probate without probable cause.

"'An in terrorem clause is a clause in a will in which a testator imposes upon a 

devisee or legatee a condition that he or she shall not dispute the provisions of the will or 

the gift shall be void.' 

"Our appellate courts have consistently held that in terrorem clauses in wills are 

valid and enforceable against a beneficiary who attacks the validity of the will, or 

provisions therein, unless the beneficiary had probable cause to challenge the will or its 

provisions.

. . . .

"Courts apply a two-part analysis to determine whether a no-contest clause 

should be enforced against a beneficiary. First, the court must determine whether the 

beneficiary's action or actions violated the express terms of the no-contest clause.
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"Second, the court must determine whether the beneficiary had probable cause to 

take the action or actions that violated the no-contest clause. [Citations omitted.]" Hamel 

v. Hamel, 296 Kan. 1060, 1074-76, 299 P.3d 278 (2013).

In Hamel, our Supreme Court cited favorably to the Restatement (Second) of 

Property: Donative Transfers § 9.1, comment j (1981), recognizing a good definition for 

probable cause is "'the existence, at the time of the initiation of the proceeding, of 

evidence which would lead a reasonable person, properly informed and advised, to 

conclude that there is a substantial likelihood that the contest or attack will be 

successful.'" 296 Kan. at 1078. "Whether probable cause exists is a question of fact." 296 

Kan. at 1078.

Wilson argues we should review for an abuse of discretion. She asserts: "All 

reasonable persons would conclude that the competency of James Thorn on January 23, 

2018 was at issue, and not something clearly demonstrated." Tolley argues we should 

review the district court's conclusion as a negative finding. While our Supreme Court 

avoided deciding this question in Hamel, under either standard of review Wilson's 

argument fails.

Essentially, Wilson asserts she lacked adequate time to investigate and did not 

have all the relevant medical information when she objected to the admission of the Will. 

She fails to frame her argument within the probable cause standard defined in Hamel. Her 

position seems generally contrary to the applicable legal standard. Wilson has not 

demonstrated "'the existence, at the time of the initiation of the proceeding, of evidence 

which would lead a reasonable person, properly informed and advised, to conclude that 

there is a substantial likelihood that the contest or attack will be successful.'" See 296 

Kan. at 1078.
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Wilson filed her objection to the admission of the Will on April 16, 2018, the day 

before the hearing to admit the Will was originally set. In her objection, Wilson asserted 

Thorn suffered from chronic alcoholism as well as numerous medical problems before 

executing the documents at issue. In her answers to interrogatories filed August 8, 2018, 

Wilson stated she was currently in the process of requesting Thorn's medical records 

from the relevant timeframe. Wilson's brief does not explain any reason she could not 

obtain relevant medical records prior to filing her objection.

The Will provided Wilson with notice the witnesses to the Will were Lawrence 

and Rowsey. However, Wilson does not assert or explain any impediment in locating or 

contacting either Lawrence or Rowsey prior to filing her objection. Both signed the 

affidavit of proof of will, indicating to the best of their knowledge Thorn was of sound 

mind and under no constraint or undue influence. The witnesses attested to facts directly 

contrary to the allegations in Wilson's objection. Investigating the basis for their belief 

would certainly be something "'a reasonable person, properly informed and advised'" 

would do prior to filing an objection to the admission of the Will to probate and record.

Hamel, 296 Kan. at 1078.

The record contains substantial competent evidence to support the district court's 

finding Wilson lacked probable cause to object to the admission of the Will to probate. 

The in terrorem clause was properly invoked and enforced.

Affirmed.