Will binding, when--contest of will, when, procedure.
473.083. 1. Unless any person interested in the probate ofa will appears within six months after the date of the probate orrejection thereof by the probate division of the circuit court,or within six months after the first publication of notice ofgranting of letters on the estate of the decedent, whichever islater, and, by petition filed with the clerk of the circuit courtof the county, contests the validity of a probated will, or praysto have a will probated which has been rejected by the probatedivision of the circuit court, then probate or rejection of thewill is binding. An heir, devisee, trustee or trust beneficiaryunder another purported will of the same decedent, and a personwho has acquired, before or after the death of the testator, allor part of the interest of such heir or devisee by purchase,gift, devise, intestate succession, mortgage or lien, isinterested in the probate of a will for purposes of this section.
2. Whenever it is shown or appears to and is found by thejudge of the probate division that any person interested in theprobate of a will is a minor or mentally incapacitated person,and that the filing of a contest may be to the interest of theminor or person, the court shall appoint a guardian ad litem forthe minor or person, who shall file or join in the contest withinthe time fixed by subsection 1 of this section.
3. It is not necessary to join as parties in a will contestpersons whose interests will not be affected adversely by theresult thereof. Subject to the provisions of section 472.300,RSMo, persons not joined as parties in a will contest are notbound by the result thereof and have no rights in or to anyconsideration given for dismissal pursuant to subsection 8 ofthis section.
4. Upon filing of the petition the clerk of the circuitcourt shall immediately notify the probate division of thecircuit court and transmit to it a copy of the petition withinten days after its filing.
5. Any contest of the validity of a probated will or anyprayer to have probated a will which has been rejected by thejudge of the probate division shall be heard before a circuitjudge other than the judge of the probate division, provided,however, that with the consent of the judge of the probatedivision, such actions may be filed in or transferred to theprobate division for hearing. Service of summons, petition, andsubsequent pleadings thereto together with all subsequentproceedings in such will contest proceedings shall be governed bythe Missouri Rules of Civil Procedure and the provisions of TheCivil Code of Missouri which are in effect.
6. In any such action the petitioner shall proceeddiligently to secure and complete service of process as providedby law on all parties defendant. If service of process is notsecured and completed upon all parties defendant within ninetydays after the petition is filed, the petition, on motion of anydefendant duly served upon the petitioner or his attorney ofrecord, in the absence of a showing by the petitioner of goodcause for failure to secure and complete service, shall bedismissed at the cost of the petitioner.
7. If a timely petition is filed, it and the answer oranswers thereto shall frame the issues of intestacy or testacy orwhich writing or writings constitute the decedent's will. Theissues shall be tried by a jury, or if no party requires a jury,by the court, and the judgment thereon shall determine theissues. The verdict of jury or the finding and judgment of thecourt is final, saving to the court the right of granting a newtrial and to the parties the right of appeal as in other cases.
8. Any such action may be voluntarily dismissed, after theperiod of contest has expired, by consent of all parties not indefault, at the cost of the party or parties designated, at anytime prior to final judgment. Dismissal under this subsectionshall not be considered a compromise of the action requiringcourt approval pursuant to sections 473.084 and 473.085, eventhough the parties have contractually agreed to an exchange ofconsideration for such dismissal or consent, and even thoughothers similarly situated do not participate in suchconsideration.
9. If the action is dismissed under the provisions ofsubsection 6 or 8 of this section, the judge of the probatedivision shall proceed with the administration of the estate inaccord with his previous order admitting the will to probate orrejecting a will as if the petition had never been filed with theclerk of the circuit court.
(1971) The term "interested in the probate of a will" as used in this section requires a contestant to have a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rel. Cooper v. Cloyd (Mo.), 461 S.W.2d 833.
(1971) Where all legatees named in will were not named and served as defendants in will contest suit until after sixty days from date petition was filed and no attempt was made to show good cause for failure to do so, suit was properly dismissed. Doran v. Wurth (Mo.), 475 S.W.2d 49.
(1973) Right of action to contest a will is purely statutory and in derogation of common law. Where coexecutors failed to adequately advise probate court of decedent's son's whereabouts, statute of limitation was not tolled. Haas v. Haas (Mo.), 504 S.W.2d 44.
(1978) Legatee names individually in body of petition was duly served as an individual even though names in caption of petition and summons in his capacity as executor only. Watson v. Watson (Mo.), 562 S.W.2d 329.
(1984) The only question that may be litigated in a will contest is whether a document is the last will and testament of the decedent, and no other claims may be joined. Romann v. Bueckmann (Mo.App.E.D.), 686 S.W.2d 25.
(1987) As used in this section, the term "adversely affected" means that the person may lose some benefit if the will contest succeeds, not if the will contest fails. Zimmerman v. Preuss, 725 S.W.2d 876 (Mo.banc).
(1987) A will contest may be dismissed voluntarily with prejudice pursuant to this section and the estate distributed in accordance with court approved settlement agreement of parties to will contest pursuant to sections 474.084 and 474.085 so long as agreement is reasonable and takes into account all interested parties including those that may not be parties to will contest. Mamoulian v. St. Louis University, 732 S.W.2d 512 (Mo.banc).
(1996) The requirements of sections 473.017 and 473.033 must be followed before the statutory bar of this section may be exercised to exclude a will contest in an open estate. Bosworth v. Sewell, 918 S.W.2d 773 (Mo.banc).
(1997) Action by probate division is condition precedent to bringing suit to set aside a will or to establish a will that has been rejected. Brunig v. Humburg, 957 S.W.2d 345 (Mo.App.E.D.).
Will binding, when--contest of will, when, procedure.
473.083. 1. Unless any person interested in the probate ofa will appears within six months after the date of the probate orrejection thereof by the probate division of the circuit court,or within six months after the first publication of notice ofgranting of letters on the estate of the decedent, whichever islater, and, by petition filed with the clerk of the circuit courtof the county, contests the validity of a probated will, or praysto have a will probated which has been rejected by the probatedivision of the circuit court, then probate or rejection of thewill is binding. An heir, devisee, trustee or trust beneficiaryunder another purported will of the same decedent, and a personwho has acquired, before or after the death of the testator, allor part of the interest of such heir or devisee by purchase,gift, devise, intestate succession, mortgage or lien, isinterested in the probate of a will for purposes of this section.
2. Whenever it is shown or appears to and is found by thejudge of the probate division that any person interested in theprobate of a will is a minor or mentally incapacitated person,and that the filing of a contest may be to the interest of theminor or person, the court shall appoint a guardian ad litem forthe minor or person, who shall file or join in the contest withinthe time fixed by subsection 1 of this section.
3. It is not necessary to join as parties in a will contestpersons whose interests will not be affected adversely by theresult thereof. Subject to the provisions of section 472.300,RSMo, persons not joined as parties in a will contest are notbound by the result thereof and have no rights in or to anyconsideration given for dismissal pursuant to subsection 8 ofthis section.
4. Upon filing of the petition the clerk of the circuitcourt shall immediately notify the probate division of thecircuit court and transmit to it a copy of the petition withinten days after its filing.
5. Any contest of the validity of a probated will or anyprayer to have probated a will which has been rejected by thejudge of the probate division shall be heard before a circuitjudge other than the judge of the probate division, provided,however, that with the consent of the judge of the probatedivision, such actions may be filed in or transferred to theprobate division for hearing. Service of summons, petition, andsubsequent pleadings thereto together with all subsequentproceedings in such will contest proceedings shall be governed bythe Missouri Rules of Civil Procedure and the provisions of TheCivil Code of Missouri which are in effect.
6. In any such action the petitioner shall proceeddiligently to secure and complete service of process as providedby law on all parties defendant. If service of process is notsecured and completed upon all parties defendant within ninetydays after the petition is filed, the petition, on motion of anydefendant duly served upon the petitioner or his attorney ofrecord, in the absence of a showing by the petitioner of goodcause for failure to secure and complete service, shall bedismissed at the cost of the petitioner.
7. If a timely petition is filed, it and the answer oranswers thereto shall frame the issues of intestacy or testacy orwhich writing or writings constitute the decedent's will. Theissues shall be tried by a jury, or if no party requires a jury,by the court, and the judgment thereon shall determine theissues. The verdict of jury or the finding and judgment of thecourt is final, saving to the court the right of granting a newtrial and to the parties the right of appeal as in other cases.
8. Any such action may be voluntarily dismissed, after theperiod of contest has expired, by consent of all parties not indefault, at the cost of the party or parties designated, at anytime prior to final judgment. Dismissal under this subsectionshall not be considered a compromise of the action requiringcourt approval pursuant to sections 473.084 and 473.085, eventhough the parties have contractually agreed to an exchange ofconsideration for such dismissal or consent, and even thoughothers similarly situated do not participate in suchconsideration.
9. If the action is dismissed under the provisions ofsubsection 6 or 8 of this section, the judge of the probatedivision shall proceed with the administration of the estate inaccord with his previous order admitting the will to probate orrejecting a will as if the petition had never been filed with theclerk of the circuit court.
(1971) The term "interested in the probate of a will" as used in this section requires a contestant to have a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rel. Cooper v. Cloyd (Mo.), 461 S.W.2d 833.
(1971) Where all legatees named in will were not named and served as defendants in will contest suit until after sixty days from date petition was filed and no attempt was made to show good cause for failure to do so, suit was properly dismissed. Doran v. Wurth (Mo.), 475 S.W.2d 49.
(1973) Right of action to contest a will is purely statutory and in derogation of common law. Where coexecutors failed to adequately advise probate court of decedent's son's whereabouts, statute of limitation was not tolled. Haas v. Haas (Mo.), 504 S.W.2d 44.
(1978) Legatee names individually in body of petition was duly served as an individual even though names in caption of petition and summons in his capacity as executor only. Watson v. Watson (Mo.), 562 S.W.2d 329.
(1984) The only question that may be litigated in a will contest is whether a document is the last will and testament of the decedent, and no other claims may be joined. Romann v. Bueckmann (Mo.App.E.D.), 686 S.W.2d 25.
(1987) As used in this section, the term "adversely affected" means that the person may lose some benefit if the will contest succeeds, not if the will contest fails. Zimmerman v. Preuss, 725 S.W.2d 876 (Mo.banc).
(1987) A will contest may be dismissed voluntarily with prejudice pursuant to this section and the estate distributed in accordance with court approved settlement agreement of parties to will contest pursuant to sections 474.084 and 474.085 so long as agreement is reasonable and takes into account all interested parties including those that may not be parties to will contest. Mamoulian v. St. Louis University, 732 S.W.2d 512 (Mo.banc).
(1996) The requirements of sections 473.017 and 473.033 must be followed before the statutory bar of this section may be exercised to exclude a will contest in an open estate. Bosworth v. Sewell, 918 S.W.2d 773 (Mo.banc).
(1997) Action by probate division is condition precedent to bringing suit to set aside a will or to establish a will that has been rejected. Brunig v. Humburg, 957 S.W.2d 345 (Mo.App.E.D.).
Will binding, when--contest of will, when, procedure.
473.083. 1. Unless any person interested in the probate ofa will appears within six months after the date of the probate orrejection thereof by the probate division of the circuit court,or within six months after the first publication of notice ofgranting of letters on the estate of the decedent, whichever islater, and, by petition filed with the clerk of the circuit courtof the county, contests the validity of a probated will, or praysto have a will probated which has been rejected by the probatedivision of the circuit court, then probate or rejection of thewill is binding. An heir, devisee, trustee or trust beneficiaryunder another purported will of the same decedent, and a personwho has acquired, before or after the death of the testator, allor part of the interest of such heir or devisee by purchase,gift, devise, intestate succession, mortgage or lien, isinterested in the probate of a will for purposes of this section.
2. Whenever it is shown or appears to and is found by thejudge of the probate division that any person interested in theprobate of a will is a minor or mentally incapacitated person,and that the filing of a contest may be to the interest of theminor or person, the court shall appoint a guardian ad litem forthe minor or person, who shall file or join in the contest withinthe time fixed by subsection 1 of this section.
3. It is not necessary to join as parties in a will contestpersons whose interests will not be affected adversely by theresult thereof. Subject to the provisions of section 472.300,RSMo, persons not joined as parties in a will contest are notbound by the result thereof and have no rights in or to anyconsideration given for dismissal pursuant to subsection 8 ofthis section.
4. Upon filing of the petition the clerk of the circuitcourt shall immediately notify the probate division of thecircuit court and transmit to it a copy of the petition withinten days after its filing.
5. Any contest of the validity of a probated will or anyprayer to have probated a will which has been rejected by thejudge of the probate division shall be heard before a circuitjudge other than the judge of the probate division, provided,however, that with the consent of the judge of the probatedivision, such actions may be filed in or transferred to theprobate division for hearing. Service of summons, petition, andsubsequent pleadings thereto together with all subsequentproceedings in such will contest proceedings shall be governed bythe Missouri Rules of Civil Procedure and the provisions of TheCivil Code of Missouri which are in effect.
6. In any such action the petitioner shall proceeddiligently to secure and complete service of process as providedby law on all parties defendant. If service of process is notsecured and completed upon all parties defendant within ninetydays after the petition is filed, the petition, on motion of anydefendant duly served upon the petitioner or his attorney ofrecord, in the absence of a showing by the petitioner of goodcause for failure to secure and complete service, shall bedismissed at the cost of the petitioner.
7. If a timely petition is filed, it and the answer oranswers thereto shall frame the issues of intestacy or testacy orwhich writing or writings constitute the decedent's will. Theissues shall be tried by a jury, or if no party requires a jury,by the court, and the judgment thereon shall determine theissues. The verdict of jury or the finding and judgment of thecourt is final, saving to the court the right of granting a newtrial and to the parties the right of appeal as in other cases.
8. Any such action may be voluntarily dismissed, after theperiod of contest has expired, by consent of all parties not indefault, at the cost of the party or parties designated, at anytime prior to final judgment. Dismissal under this subsectionshall not be considered a compromise of the action requiringcourt approval pursuant to sections 473.084 and 473.085, eventhough the parties have contractually agreed to an exchange ofconsideration for such dismissal or consent, and even thoughothers similarly situated do not participate in suchconsideration.
9. If the action is dismissed under the provisions ofsubsection 6 or 8 of this section, the judge of the probatedivision shall proceed with the administration of the estate inaccord with his previous order admitting the will to probate orrejecting a will as if the petition had never been filed with theclerk of the circuit court.
(1971) The term "interested in the probate of a will" as used in this section requires a contestant to have a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rel. Cooper v. Cloyd (Mo.), 461 S.W.2d 833.
(1971) Where all legatees named in will were not named and served as defendants in will contest suit until after sixty days from date petition was filed and no attempt was made to show good cause for failure to do so, suit was properly dismissed. Doran v. Wurth (Mo.), 475 S.W.2d 49.
(1973) Right of action to contest a will is purely statutory and in derogation of common law. Where coexecutors failed to adequately advise probate court of decedent's son's whereabouts, statute of limitation was not tolled. Haas v. Haas (Mo.), 504 S.W.2d 44.
(1978) Legatee names individually in body of petition was duly served as an individual even though names in caption of petition and summons in his capacity as executor only. Watson v. Watson (Mo.), 562 S.W.2d 329.
(1984) The only question that may be litigated in a will contest is whether a document is the last will and testament of the decedent, and no other claims may be joined. Romann v. Bueckmann (Mo.App.E.D.), 686 S.W.2d 25.
(1987) As used in this section, the term "adversely affected" means that the person may lose some benefit if the will contest succeeds, not if the will contest fails. Zimmerman v. Preuss, 725 S.W.2d 876 (Mo.banc).
(1987) A will contest may be dismissed voluntarily with prejudice pursuant to this section and the estate distributed in accordance with court approved settlement agreement of parties to will contest pursuant to sections 474.084 and 474.085 so long as agreement is reasonable and takes into account all interested parties including those that may not be parties to will contest. Mamoulian v. St. Louis University, 732 S.W.2d 512 (Mo.banc).
(1996) The requirements of sections 473.017 and 473.033 must be followed before the statutory bar of this section may be exercised to exclude a will contest in an open estate. Bosworth v. Sewell, 918 S.W.2d 773 (Mo.banc).
(1997) Action by probate division is condition precedent to bringing suit to set aside a will or to establish a will that has been rejected. Brunig v. Humburg, 957 S.W.2d 345 (Mo.App.E.D.).
