In re Estate of Steward

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NOT DESIGNATED FOR PUBLICATION

No. 119,856

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Estate of
DORIS A. STEWARD.

MEMORANDUM OPINION

Appeal from Mitchell District Court; DEBRA J.G. WRIGHT, magistrate judge. Opinion filed
October 4, 2019. Affirmed.

Mary Leidig, appellant pro se.

William R. Thompson, of Condray & Thompson, LLC, of Concordia, for appellee Kathleen
Walker.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: Mary Leidig appeals the district magistrate judge's order dismissing
her pro se petition which simultaneously sought to probate her mother's will and contest
it. Leidig raises six issues on appeal. She contends the trial court should have continued
the hearing on her petition, and allowed her non-attorney cousin to sit at counsel table
during the hearing. Leidig also asserts the trial court erred by requiring her to testify
against herself. Next, Leidig claims the judge was biased against her and unfairly
evaluated the form of her pleadings rather than the substance. Finally, Leidig contends
the trial court should have ruled that her sister, Kathleen Walker, was in a confidential
relationship with her mother and suspicious circumstances indicated that she exerted
undue influence on the creation of her mother's 2014 Will.

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Upon our review we find no reversible error and, therefore, affirm the trial court's
dismissal of Leidig's petition.

FACTUAL AND PROCEDURAL BACKGROUND

Doris A. Steward had four children: Leidig, Walker, Deanna Larson, and Kevin
Steward. Doris executed a will in November 2014 (2014 Will), which gave the entirety of
her estate in three equal shares to Walker, Larson, and Kevin. The 2014 Will explicitly
disinherited Leidig, stating that it was Doris' "specific intention to make no provision for
[her] daughter, Mary (Burleigh) Leidig." The 2014 Will nominated Larson and Walker as
co-executors.

Doris passed away in December 2015. On February 22, 2016, Walker timely filed
the 2014 Will and an affidavit under K.S.A. 2015 Supp. 59-618a to preserve the will for
the record in the event of formal probate proceedings. In the affidavit, Walker averred
that Doris' estate contained no real property and the value of the estate was less than the
demands allowed against it.

In November 2017, Leidig filed a pro se pleading which concurrently petitioned to
probate the 2014 Will, contest it, and set it aside. In support of her petition, Leidig
asserted that Walker failed to properly perform her duties as Doris' power of attorney.
Leidig also claimed that Walker and her husband exerted undue influence over Doris,
causing her to amend her will and disinherit Leidig.

Walker denied the allegations in Leidig's petition. She also sought dismissal of
Leidig's petition because Doris left no property or assets that required probate
proceedings.

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The district magistrate judge set a hearing on the petition for January 8, 2018.
Leidig requested a continuance to February 2018, however, because she recently had
major surgery. The trial court granted the continuance and reset the hearing "on all
motions pending" for February 26, 2018.

Prior to the hearing, Leidig filed a notice that she intended to issue business record
subpoenas to several nonparties. Walker objected and moved to quash the subpoenas.

At the start of the February hearing, Leidig requested that her cousin and limited
power of attorney, Billie Payne, sit at counsel table and help her take notes. Because
Payne was not a licensed attorney, the trial court required her to sit in the gallery. The
trial court then considered Leidig's petition challenging the validity of the 2014 Will. The
trial court explained that it would decide whether to probate the 2014 Will before
reaching the other matters.

Leidig argued that Walker and her husband placed undue influence on Doris by
isolating her from Walker's siblings. Leidig believed the Walkers wanted Doris to
exclude her from receiving property under the 2014 Will. Leidig testified that Walker
moved Doris to multiple facilities and refused to inform family members where she was
living. Leidig claimed the Walkers insured that she had no communication with Doris.
She also stated that Walker was named a co-owner of Doris' checking account and
received money from the account when Doris died.

When Leidig asked the trial court whether she should expand on certain
arguments, the judge explained that she could not tell her what evidence to present but
"this is your opportunity to bring evidence." Leidig clarified that one of Doris' previous
wills treated all four children equally and she claimed that pressure was placed on Doris
to write the 2014 Will. Although Leidig kept a copy of the earlier will, she did not bring
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it to court because she "didn't realize [she] had to go through all of this." Leidig
understood the hearing was only held "to address the subpoena, et cetera."

Walker's attorney explained the relationship between Leidig and Doris. Doris had
lived with Leidig for about a year, but eventually Doris sued Leidig to recover personal
property from Leidig. Walker explained that this resulted in hard feelings and caused
Doris to exclude Leidig from her will.

Walker contended that the 2014 Will should not be admitted to probate because:

 Leidig's petition lacked verification as required by K.S.A. 59-2201. It also failed to
meet the requirements of K.S.A. 59-2202, which requires a statement of
jurisdictional facts and facts showing the petitioner is entitled to relief.
 If Leidig is attempting to make a claim against the estate, the six-month period
under K.S.A. 59-2239(1) to file a petition to probate the decedent's will had
expired.
 Leidig's petition failed to meet the requirements of K.S.A. 59-2220 because it did
not include: (1) the identification of devisees and legatees; (2) an estimated value
of the probate assets; (3) an accompanied will; (4) identification of the person
named as executor; and (5) identification of the scrivener of the will.
 Leidig lacked standing because she was not a beneficiary nor seeking appointment
as executor.
 No probate assets had been found.

In response to this last claim, Leidig stated, "Well there may or may not be any
assets. But this is—this is not fair what they did to my mother." Leidig conceded that
Doris may have been upset with her, but she claimed the Walkers tried to prevent a
reconciliation. Leidig believed that if she and Doris had reconciled, then Doris would not
have disinherited her.
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After considering the evidence and arguments, the trial court denied Leidig's
petition to probate and challenge the 2014 Will. The trial court ruled that the 2014 Will
did not require probate. The trial court also found that Leidig failed to show that Walker
unduly influenced Doris to alter the will. Instead, the trial court found the allegations of
the litigation between Leidig and Doris was "compelling . . . evidence" against undue
influence and provided an appropriate explanation for why Doris executed a new will
which disinherited Leidig.

Finally the trial court explained that Leidig presented several issues not relevant to
admitting a will to probate. The trial court noted that it provided Leidig leeway in her
pleadings, but she failed to satisfy certain essential procedural requirements. The judge
explained that "by hearing your testimony here today, I understand what you were trying
to request. I just don't think you have sufficient evidence to meet the burden in that
particular matter." As a result, Leidig's action was dismissed.

After the trial court filed a journal entry dismissing the case, Leidig filed a motion
for a rehearing. The trial court denied Leidig's posttrial motion, noting that it had given
her "several opportunities to demonstrate appropriate jurisdictional matters and meet her
burden of proof." The trial court explained that it accommodated Leidig by modifying the
proceedings, allowing her to amend her pleadings, and asking her questions in an effort to
establish a jurisdictional basis for the petition.

Leidig appeals.

ANALYSIS

Leidig raises numerous issues on appeal which we will address individually.


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Failure to Grant a Continuance

Leidig contends the trial court erred when it failed to continue the February 26,
2018 hearing on her petition. While Leidig admits she never requested a continuance, she
argues the trial court should have continued the hearing when she informed it that she
was unprepared.

The decision to grant or deny a continuance rests in the sound discretion of the
trial court. K.S.A. 2018 Supp. 60-240(c)(3). As a result, a trial court's refusal to grant a
continuance will not be disturbed on appeal absent an abuse of discretion. Walker v.
Regehr, 41 Kan. App. 2d 352, 365, 202 P.3d 712 (2009). A judicial action constitutes an
abuse of discretion if (1) no reasonable person would take the view adopted by the trial
court; (2) it is based on an error of law; or (3) it is based on an error of fact. Consolver v.
Hotze, 306 Kan. 561, 568-69, 395 P.3d 405 (2017). As the party asserting an abuse of
discretion, Leidig bears the burden of establishing the error. Gannon v. State, 305 Kan.
850, 868, 390 P.3d 461 (2017).

When presenting evidence to support her petition to probate and challenge the
2014 Will, Leidig stated she did not realize she needed to "get into all this" at the hearing.
She explained that she understood the February hearing was to address her subpoenas. On
appeal, Leidig suggests the trial court should have sua sponte continued the hearing based
on her statements. Leidig does not allege an error of law or fact, so we consider whether
the trial court's inaction was unreasonable.

The trial court's inaction to initiate a continuance based on Leidig's lack of
preparation was reasonable despite Leidig's indications that she was unaware the hearing
would address her requests to probate and challenge the 2014 Will. The trial court's
orders setting the hearing clearly stated that the hearing would address Leidig's claims.
Although the trial court originally scheduled the hearing on Leidig's petition for the prior
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month, the hearing was continued to February 26, 2018, and it was noted that the judge
would address all pending motions, which included Walker's request to dismiss Leidig's
petition. Leidig should not have been confused about the purposes of the hearing.
Moreover, other than possibly providing a copy of the earlier will, Leidig does not
explain what relevant evidence she would have produced if she had been prepared for the
hearing.

Finally, Leidig understood she could request a continuance but declined to ask.
Indeed, she had previously requested and received a continuance of the hearing. The trial
court did not abuse its discretion by failing to sua sponte grant Leidig a second
continuance of the hearing on her petition.

Refusal to Allow Payne to Sit at Counsel Table

Next, Leidig contends the trial court erred by denying her "indirect[]" request for
an accommodation to allow her cousin to sit with her at counsel table to take notes.
Leidig suggests the accommodation was necessary because she has difficulty grasping
new material and multitasking.

The trial court's decision to prohibit a nonparty from sitting at counsel table is
reviewed for abuse of discretion. See State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276
(2013); Wilmer v. Bd. of County Com'rs of Leavenworth County, 153 F.R.D. 165, 169 (D.
Kan. 1993). Again, Leidig bears the burden to show the error. Gannon, 305 Kan. at 868.

At the hearing, Payne informed the trial court that she was Leidig's cousin, and
Leidig clarified that Payne was her limited power of attorney. The trial court informed
Leidig that a limited power of attorney did not give Payne the right to represent Leidig.
But the trial court informed Payne that if she was there for moral support, she would need
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to sit in the gallery. After Leidig stated that Payne was present to assist her with taking
notes, Payne was required to sit in the gallery for that purpose.

On appeal, Leidig cites no legal authority to suggest that the trial court erred.
Issues not adequately briefed are deemed waived or abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). The failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. State v. Salary, 309 Kan.
479, 481, 437 P.3d 953 (2019). Likewise, Leidig fails to explain how the trial court's
actions prejudiced her case. Our court must disregard an error if it does not affect a
party's substantial rights. K.S.A. 2018 Supp. 60-261; K.S.A. 60-2105.

Moreover, unlike on appeal, Leidig never informed the trial court that Payne's
assistance was needed to accommodate any disability or infirmity that affected Leidig's
ability to represent herself. Still, the trial court's ruling did not prevent Payne from taking
notes for Leidig while she was sitting in the gallery. See United States v. Betts-Gaston,
142 F. Supp. 3d 716, 733 (N.D. Ill. 2015) (finding a court's ruling that defense counsel's
non-attorney assistant could not sit at counsel's table did not deny defendant a fair trial
when the court did not bar the assistant from aiding defense counsel with documents from
the gallery). The trial court did not err by not allowing Payne to sit at counsel table.

Requiring Leidig to Testify Against Herself

Leidig contends the trial court erred by requiring her to testify against herself. She
intimates that the trial court violated her privilege under K.S.A. 60-425 to refuse to
disclose any matter that would incriminate her. Interpretation of a statute is a question of
law over which we have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan.
916, 918, 349 P.3d 469 (2015).

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At the hearing, the trial court informed Leidig she had the burden to show that her
requested relief should be granted. After Leidig agreed to start the hearing by addressing
her petition, the trial court administered an oath to her. Leidig testified in support of her
petition.

As a general rule, "no person has a privilege to refuse to be a witness" and "no
person has a privilege to refuse to disclose any matter." K.S.A. 60-407. An exception to
this rule is the constitutional guarantee of the right against self-incrimination in the Fifth
Amendment to the United States Constitution, which is echoed in the Kansas
Constitution and K.S.A. 60-425. In re Investigation into Homicide of T.H., 23 Kan. App.
2d 471, 474, 932 P.2d 1023 (1997). Under K.S.A. 60-425, "every natural person has a
privilege, which he or she may claim, to refuse to disclose in an action . . . any matter that
will incriminate such person." See K.S.A. 60-424. In essence, both as a constitutional and
statutory matter, a person acting as witness may not be compelled to give testimony
which might tend to show that the person committed a crime.

Importantly, Leidig fails to identify any testimony suggesting that she committed a
crime, and we can discern none. Regardless, Leidig never invoked her privilege against
self-incrimination. This privilege is "waived when an individual voluntarily testifies on
his or her own behalf." City of Liberal v. Witherspoon, 28 Kan. App. 2d 649, 652, 20
P.3d 727 (2001). As a result, even if Leidig had mentioned something incriminating in
her testimony, she waived her privilege against self-incrimination in K.S.A. 60-425.

The trial court did not err by requiring that Leidig establish her claims through
sworn testimony.




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Exhibiting Bias and Unfairness Toward Leidig

Leidig claims error because the district magistrate judge exhibited bias and
prejudice against her. In support, Leidig asserts the judge (1) never asked Walker's
counsel about the suspicious circumstances in the relationship between the Walkers and
Doris, (2) altered the audio recording of the hearing on Leidig's petition, (3) refused to
schedule a hearing on Leidig's objections to the proposed journal entry, and (4) sounded
upset with Leidig's motion for rehearing.

Our court exercises unlimited review over a party's allegations of judicial bias to
determine whether the facts rise to the level of judicial misconduct. State v. Kemble, 291
Kan. 109, 113, 238 P.3d 251 (2010). The party alleging judicial misconduct bears the
burden of establishing that misconduct occurred and that it prejudiced the party's
substantial rights. State v. Hudgins, 301 Kan. 629, 637-38, 346 P.3d 1062 (2015). When a
party asserts a lack of judicial impartiality, our court considers whether the assertion is
grounded in facts that would create reasonable doubt about the court's impartiality in the
mind of a reasonable person with knowledge of all the circumstances. Smith v. Printup,
262 Kan. 587, Syl. ¶ 8, 938 P.2d 1261 (1997).

The fact that a trial judge ruled against a party presents a legally insufficient basis
to find that the judge exhibited bias or prejudice against that party. Hajda v. University of
Kansas Hosp. Auth., 51 Kan. App. 2d 761, 777, 356 P.3d 1 (2015). When considering
judicial comments, a remark will not be found prejudicial if a proper and reasonable
construction renders the remark unobjectionable. Kemble, 291 Kan. at 113. To warrant a
new trial, judicial conduct must appear to prejudice the substantial rights of the
complaining party. The mere possibility of prejudice is insufficient to overturn a verdict
or judgment. State v. Walker, 308 Kan. 409, 419, 421 P.3d 700 (2018).

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Leidig fails to allege facts showing the trial judge committed judicial misconduct
or that any misconduct affected her substantial rights. Leidig provides no argument or
authority suggesting the trial court should have questioned Walker's counsel about the
suspicious circumstances that she alleged at the hearing. Again, issues not adequately
briefed are deemed waived or abandoned. In re Marriage of Williams, 307 at 977.

Next, Leidig claims the trial judge altered and deleted portions of the audio
recording of the hearing. Leidig states she discovered the altered recording when she
received the printed transcript of the hearing. Leidig asserts that, when addressing
whether Payne could sit with her, the trial judge said "I find you competent." But Leidig
points out this statement was not included in the transcript. Leidig also alleges that some
of the trial judge's statements about not understanding the relief Leidig requested in her
petition were either modified or not included in the transcript. Still, Leidig fails to explain
how any of these errors in the transcript or manipulations of the audio recording suggest a
bias or prejudice against her. Additionally, Leidig claims no prejudice to her substantial
rights which resulted from any judicial misconduct.

With regard to the trial judge's refusal to set a hearing on Leidig's objections to the
proposed journal entry, Leidig did not request a hearing to resolve her objections to the
journal entry. Moreover, Supreme Court Rule 170(d)(3) (2019 Kan. S. Ct. R. 222)
provides that if the parties do not agree on the terms of a prepared order, the court may
settle the order without a hearing.

Finally, as to Leidig's claims that the trial judge "sounded really upset" after she
filed a motion for a rehearing, Leidig does not indicate what the judge said or did that
indicated that the judge was upset or otherwise biased against her. As a result, we are
unable to assess whether any of the trial judge's comments or actions regarding Leidig's
motion for a rehearing suggested prejudice. In short, Leidig fails to establish the trial
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judge was unfairly biased against her or that any judicial misconduct affected her
substantial rights.

Use of Improper Standards to Consider Leidig's Pleadings

Leidig argues that the trial court improperly evaluated her pro se pleadings.
Specifically, she argues that "[i]t seemed that the Court and opposing attorney were more
concerned about whether [Leidig's] court document was [in] perfect form versus what
[Leidig] was trying to say." "Whether the district court correctly construed a pro se
pleading is a question of law subject to unlimited review." State v. Parks, 308 Kan. 39,
42, 417 P.3d 1070 (2018).

Kansas courts liberally construe pro se pleadings to give effect to the pleading's
content rather than the labels and forms used to articulate the defendant's arguments. 308
Kan. at 42. Nevertheless, a pro se litigant must follow the same procedural rules as a
litigant who is represented by counsel. Leffel v. City of Mission Hills, 47 Kan. App. 2d 8,
21, 270 P.3d 1 (2011). The reason for this is simple but important:

"A pro se litigant in a civil case is required to follow the same rules of procedure and
evidence which are binding upon a litigant who is represented by counsel. Our legal
system cannot function on any basis other than equal treatment of all litigants. To have
different rules for different classes of litigants is untenable. A party in civil litigation
cannot expect the trial judge or an attorney for the other party to advise him or her of the
law or court rules, or to see that his or her case is properly presented to the court. A pro se
litigant in a civil case cannot be given either an advantage or a disadvantage solely
because of proceeding pro se." Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96,
730 P.2d 1109 (1986).

As the trial court noted, Leidig's pleadings failed to comply with Kansas law. Her
petition was not verified as required by K.S.A. 59-2201. The petition did not state the
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jurisdictional facts as required by K.S.A. 59-2202. The petition also failed to satisfy
many requirements in K.S.A. 59-2220 for a petition to probate a will. These pleading
requirements are established by statute and should be complied with in order to properly
present the petition for probate. Since a pro se litigant in a civil case must follow the
required procedural rules, the trial court appropriately pointed out the defects in Leidig's
pleadings and found that it could have denied Leidig's petition based on those procedural
defects.

Still, while the trial court noted the defects in Leidig's pleadings, it provided
Leidig a hearing on her petition and denied it on the merits. As a result, assuming the trial
court used overly stringent standards when considering Leidig's pro se pleadings, the
error was harmless and not reversible. See K.S.A. 2018 Supp. 60-261.

Failure to Find No Undue Influence

Finally, Leidig contends the trial court erred because it "did not see that [Walker]
was in a confidential relationship with Doris and that [the Walkers] had numerous
suspicious circumstances." Leidig cites caselaw suggesting that a person may establish a
presumption of undue influence by showing: (1) a confidential relationship between the
decedent and alleged wrongdoer, and (2) suspicious circumstances regarding the 2014
Will.

When the trial court makes findings of fact and conclusions of law, this court
examines whether the factual findings are supported by substantial competent evidence
and whether the findings are sufficient to support the trial court's legal conclusions. City
of Wichita v. Denton, 296 Kan. 244, 255, 294 P.3d 207 (2013). Substantial competent
evidence is such legal and relevant evidence as a reasonable person could accept as being
sufficient to support a conclusion. Cresto v. Cresto, 302 Kan. 820, 835, 358 P.3d 831
(2015). When reviewing whether substantial evidence supports the trial court's findings,
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our court does not reweigh the evidence or pass on the credibility of witnesses. 302 Kan.
at 835.

A trial court's finding that a will was not the product of undue influence is a
negative finding which indicates the party with the burden of proof failed to sustain that
burden. In re Estate of Farr, 274 Kan. 51, 69, 49 P.3d 415 (2002). When reviewing a
negative finding, our court considers whether the trial court arbitrarily disregarded
undisputed evidence or relied on some extrinsic consideration such as bias, passion, or
prejudice to reach its determination. Hamel v. Hamel, 296 Kan. 1060, 1078, 299 P.3d 278
(2013).

Once it is established that a will was executed in accordance with the necessary
legal formalities, the burden shifts to the will contestant to overcome the presumption of
validity by clear, satisfactory, and convincing evidence. Cresto, 302 Kan. at 831. Leidig
sought to overcome the presumption of validity by arguing that the 2014 Will was the
product of undue influence by Walker. Our Supreme Court has defined undue influence
as "'such coercion, compulsion or constraint that the testator's free agency is destroyed,
and by overcoming his power of resistance, the testator is obliged to adopt the will of
another rather than exercise his own."' 302 Kan. at 832 (quoting In re Estate of Kern, 239
Kan. 8, 16, 716 P.2d 528 [1986]).

Human desire, motive, and opportunity to exercise influence does not alone trigger
an inference that a party exercised undue influence. Instead, evidence must exist that the
alleged wrongdoer did exert undue influence and controlled the actions of the testator in a
way that the instrument is not really the will of the testator. Cresto, 302 Kan. at 832-33.
"'Undue influence, in order to vitiate the will of a decedent, must directly affect the
testamentary act itself.'" (Emphasis added.) 302 Kan. at 833 (quoting In re Estate of
Bennett, 19 Kan. App. 2d 154, 163, 865 P.2d 1062 [1993]).

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A person contesting a will without direct evidence of undue influence can
establish a presumption of undue influence by showing that: (1) "the person who is
alleged to have exerted undue influence was in a confidential and fiduciary relationship
with the testator" and, (2) "there were 'suspicious circumstances' surrounding the making
of the will." Farr, 274 Kan. at 70-71. If a confidential relationship and suspicious
circumstances are shown by clear and convincing evidence, a presumption of undue
influence arises and the burden shifts back to the proponents of the will to rebut the
presumption. 274 Kan. at 71.

In this probate case, the trial court did not state it was applying the two-prong
burden shifting test but instead found that no evidence suggested that Walker unduly
influenced Doris or her assets. The trial court concluded that the prior litigation between
Doris and Leidig was compelling evidence of the actual reason why Doris executed a
new will which disinherited Leidig.

On appeal, Leidig does not argue that the trial court applied an erroneous standard
in evaluating her undue influence claim. Rather, she claims the trial court should have
found that Walker was in a confidential relationship with Doris and that suspicious
circumstances existed. "In the absence of an objection to inadequate findings of fact or
conclusion of law, the trial court is presumed to have found all facts necessary to support
the judgment." 274 Kan. at 71.

Leidig lists several allegations about Walker which she argues are suspicious
circumstances:

"Suspicious circumstances are long time financial problems, no accounting of Doris'
money, income, sale of assets, isolating Doris, nine moves in two and [a] half years in
two states, Doris is feeble, forgetful, easily manipulated, [Walker was a] co-owner of
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money accounts then kept the money when Doris died, Attorney and [Walker] not
wanting to provide documents to siblings."

While Leidig's assertions may indicate a motive and opportunity to exercise
influence, they do not suggest any undue influence directly affected the testamentary act
of preparing and drafting the 2014 Will. Instead, the evidence showed that the 2014 Will
reflected Doris' desires because she was upset with Leidig after her lawsuit to recover
personal property from Leidig. The trial court appropriately relied on the prior litigation
between Doris and Leidig as evidence negating the existence of suspicious circumstances
surrounding the 2014 Will or rebutting any presumption of undue influence. Leidig fails
to overcome this negative finding that the 2014 Will was not the product of undue
influence. The trial court did not err in finding no undue influence.

Affirmed.