Law of Wills, 2016A

maintain the trial court erred in finding that Oliver was competent to execute her 1989 will and
make the changes to her certificates of deposit because an involuntary conservatee cannot make
testamentary dispositions.
The Millers’ contention raises a question of law over which this court has unlimited review. See
Hillman v. Colonial Penn. Ins. Co., 19 Kan.App.2d 375, 376, 869 P.2d 248, rev. denied 255 Kan. 1001
(1994).
While it is true that most of our decisions on this issue have arisen in the context of a voluntary
conservatorship, see, e.g., Campbell v. Black, 17 Kan.App.2d 799, 844 P.2d 759 (1993), our courts
continue to adhere to the principle that being under a guardianship or conservatorship does not
prevent one from making testamentary dispositions. As noted in Citizens State Bank & Trust Co. v.
Nolte, 226 Kan. 443, 449, 601 P.2d 1110 (1979), the conservator’s purpose “is to manage the estate
during the conservatee’s lifetime. It is not his function, nor that of the probate court supervising the
conservatorship, to control disposition of the conservatee’s property after death.”
In In re Estate of Raney, 247 Kan. 359, 799 P.2d 986 (1990), the decedent’s children sought and
obtained a conservatorship for him against his wishes. The decedent believed his children imposed
the conservatorship in order to preserve his estate for themselves and subsequently executed a will
while under the conservatorship. The trial court refused to admit the will to probate, finding that the
decedent lacked testamentary capacity to make the will because he suffered from insane delusions.
The Supreme Court reversed on the basis that the trial court’s finding was not supported by the
evidence. 247 Kan. At 375, 799 P2d 986. In reaching its holding, the court noted:
“The trial court recognized that being under a guardianship and conservatorship does not
necessarily deprive one of the power to make a will. Incompetency to transact business is not the
equivalent of insanity and does not mean that the testator lacks testamentary capacity. Previously,
this court concluded that an aged person who was ‘ “feeble-minded and incapable of managing his
affairs” ’ and who needed a guardian could, three weeks later, be competent to make a will. In re
Estate of Hall, 165 Kan. 465, 469, 195 P.2d 612 (1948) (quoting Mingle v, Hubbard, 131 Kan. 844,
293 Pac. 513 [1930]). In Hall, the court stated: ‘It is practically a universal rule that the mere fact
that one is under guardianship does not deprive him of the power to make a will.’ 165 Kan. 465 at
469, 195 P.2d 612 (citing Annot., 8 A.L.R. 1375).” 247 Kan. at 367-68, 799 P.2d 986.
We conclude that a conservatee, whether voluntary or involuntary, clearly retains the right to decide
how his or her property is to be distributed upon death. See In re Estate of Perkins, 210 Kan. 619,
626-27, 504 P.2d 564 (1972); In re Estate of Briley, 16 Kan.App.2d 546, 549, 825 P.2d 1181 (1992).
This right includes the power to change beneficiaries on payable on death accounts as well as make
wills. See In re Estate of Raney, 247 Kan. at 367-68, 799 P.2d 986; Campbell v. Black, 17 Kan.App.2d at
802-03, 844 P.2d 759. “As long as the requisite mental capacity exists, a person has the power to
dispose of the property as he wishes, and this power should not be interfered with by the court.” In
re Estate of Raney, 247 Kan. at 367, 799 P.2d 986. Consequently, if, as in this case, Oliver possessed
testamentary capacity testamentary capacity at the time she executed her will and made the changes
to her payable on death certificates of deposit, the distributions are valid.
Burden of Proof
The Millers next assert that there is a presumption of testamentary incapacity for any ward or
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