Estate of Wilson v. Jones (Ex parte Floyd)

• Decision Date: 21 September 2012
• Docket Number: 1111241.
• Citation: 105 So.3d 1193
• Parties: EX PARTE Carolyn Wilson FLOYD. (In re Estate of S.L. Wilson, Sr. v. Honorable Thomas ap R. Jones et al.).
• Court: Alabama Supreme Court

105 So.3d 1193

EX PARTE Carolyn Wilson FLOYD.(In re Estate of S.L. Wilson, Sr.

v.Honorable Thomas ap R. Jones et al.).

1111241.

Supreme Court of Alabama.

Sept. 21, 2012.

Jeffrey H. Dial, Birmingham, for petitioner.

Robert H. Turner, Sr., of Turner, Turner & Bryant, Marion, for respondents.

BOLIN, Justice.

Carolyn Wilson Floyd petitions this Court for a writ of mandamus directing Judge Thomas ap R. Jones of the Hale Circuit Court to set aside his order denying her motion to dismiss the will contest filed by Carlean Wilson Wakefield on the ground that the action is barred by § 43–8–199, Ala.Code 1975, which provides that an action to contest a will must be filed within six months after the admission of the will to probate. We grant the petition.

I. Facts and Procedural History

S.L. Wilson, Sr. (sometimes hereinafter referred to as “the father”), a resident of Hale County, died on March 17, 2010. At the time of his death, Wilson was survived by his children: Floyd, Wakefield, S.L. Wilson, Jr., Luci Wilson Montgomery, Isaac Wilson, and Eddie Wilson. On July 5, 2010, Wakefield wrote a letter addressed to three Hale County judges (the circuit judge, the district-court judge, and the probate-court judge) expressing concerns regarding her father's estate, inquiring if her father's will had been admitted to probate, and implying that she was going to contest his will; Wakefield received no answer.

On February 2, 2011, Floyd, named by Wilson as the personal representative of Wilson's estate, filed a petition in the Hale County Probate Court seeking to probate Wilson's will. On March 10, 2011, Wakefield wrote a second letter addressed to Hale County Probate Judge Leland Avery informing him, among other things, that she “wish[ed] to contest the will and address this forum in circuit court.” (Emphasis added.) After a hearing, which Wakefield attended, the probate court on March 22, 2011, admitted the will to probate and issued letters testamentary to Floyd. On April 20, 2011, Wakefield wrote a third letter addressed to Floyd's attorney, informing him that she was contesting the will because “it is believed to be fabricated to misrepresent the true intent of S.L. Wilson, Sr.['s] inheritance to his heirs.”

On February 15, 2012, Wakefield filed in the Hale Circuit Court a “complaint contesting will,” and on February 16, 2012, she obtained an order removing the administration of her father's estate from the probate court to the Hale Circuit Court. Floyd moved to dismiss the complaint filed in the circuit court on the ground that the circuit court lacked subject-matter jurisdiction because, she said, Wakefield had not filed her will contest within six months after the will was admitted to probate as required by § 43–8–199, Ala.Code 1975. Wakefield opposed the motion, claiming that she did not learn of the existence of the probate proceeding until February 12, 2011, but also claiming that her letters to the Hale County judges, to Judge Avery, and to Floyd's lawyer were notice of her intent to contest the will and to seek removal of the administration of the estate and/or the will contest to the circuit court. Wakefield therefore claimed that her action contesting the will was timely under § 43–8–190, Ala.Code 1975 (will contest filed before will admitted to probate), § 43–8–198 (transfer of a will contest from probate court to circuit court), and § 43–8–199, Ala.Code 1975 (will contest filed after will admitted to probate). Wakefield further claimed that the six-month limit in § 43–8–199 is inapplicable because she alleged fraud pursuant to § 43–8–5, Ala.Code 1975, thereby, she says, tolling to limitations period of § 43–8–199. The circuit court denied Floyd's motion to dismiss Wakefield's will contest. Floyd then petitioned this Court for a writ of mandamus.

II. Standard of Review

A petition for a writ of mandamus is a proper means by which to review questions of subject-matter jurisdiction. Ex parte Punturo, 928 So.2d 1030 (Ala.2002).

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309–10 (Ala.2003).

In Newman v. Savas, 878 So.2d 1147, 1148–49 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

“A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”

III. Discussion

In her petition for a writ of mandamus, Floyd contends that the circuit court exceeded the scope of its authority by refusing to dismiss Wakefield's will contest for lack of subject-matter jurisdiction because, she says, the contest was not filed within six months of the admission of the will to probate as required by § 43–8–199, Ala.Code 1975. Wakefield, on the other hand, claims that her July 5, 2010, letters to the judges of Hale County and her March 10, 2011, letter to Judge Avery constituted a contest of the will before it was admitted to probate, as provided in § 43–8–190. Specifically, she claims that her letters, which were dated before the will was admitted to probate, were notice of her intent to contest the will and to seek removal of the administration of her father's estate and/or the will contest to the circuit court. In other words, Wakefield claims that her letters constitute adequate pleading and documentation of a will contest in the probate court.

Alabama law pertaining to will contests is well settled and long-standing:

“In Alabama a will may be contested in two ways: (1) under § 43–8–190, Code of Alabama 1975, before probate, a contest may be instituted in the probate court or (2) under § 43–8–199, Code of Alabama 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.”

Stevens v. Gary, 565 So.2d 73, 74 (Ala.1990).

Section 43–8–190 provides:

“A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.”

(Emphasis added.)

Section 43–8–199 provides for a will contest after a will has been admitted to probate, which must be brought in the circuit court. Section 43–8–199 provides:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

Wakefield cites Ex parte Barrows, 892 So.2d 914, 918 (Ala.2004), for the proposition that her letters addressed to the Hale County judges and her letter to Judge Avery constituted adequate pleading and documentation for the filing of an initial will contest in the probate court. We disagree. In Ex parte Barrows, this Court held that the filing of the copy of a complaint previously filed in the probate court with the word “probate” marked out and the word “circuit” inserted in its place in the style and the filing of a circuit-court cover sheet constituted adequate pleading and documentation of the filing of a will contest in the circuit court. Specifically, this Court stated:

“Applying the law and the reasoning set forth in Dunning [ v. New England Life Insurance Co., 890 So.2d 92 (Ala.2003) ], we must conclude that the filing of the copy of the complaint previously filed in the probate court with the word ‘probate’ marked out and the word ‘circuit’ inserted in its place in the style and the filing of a circuit court cover sheet constituted adequate pleading and documentation for the filing of the will contest in the circuit court. While the complaint appears to be a xeroxed copy of the complaint originally filed in the probate court, the complaint properly contains the name of the court, the title of the action, the file number, and the designation that it is a ‘complaint contesting will.’ See Rule 10, Ala. R. Civ. P. Additionally, applying the principle of law set forth in Dunning that a signature may be affixed in different ways, the attorney's signature, although not original, properly certified the allegations in the complaint. See Rule 11, Ala. R. Civ. P. See also Dunning, supra (noting that Rule 11 does not provide the method by which a pleading is to be signed). Additionally, Shields Jr. properly filed a cover sheet pursuant to Rule 3(b), Ala. R. Civ. P. Lastly, the docket fee was timely filed.”

892 So.2d at 918.

Clearly, Ex parte Barrows is distinguishable from the present case. The contestant to the will in Ex parte Barrows “filed” an actual complaint, albeit not an original, containing the necessary allegations, with the circuit court as...