In re Estate of Howell
| Decision Date | 26 April 2007 |
| Docket Number | No. 5-06-0224.,5-06-0224. |
| Citation | 867 N.E.2d 559 |
| Parties | In re ESTATE OF Fred W. HOWELL, Deceased (Tina Quick and Stephen A. Quick, Petitioners-Appellants, v. Danny Thomas Howell, Executor, Respondent-Appellee). |
| Court | United States Appellate Court of Illinois |
Henry P. Villani, Villani & Villani, Mt. Vernon, for Appellants.
Jennifer W. Price, Wham & Wham, Centralia, for Appellee.
The petitioners, Tina Quick and Stephen A. Quick, appeal from the dismissal with prejudice by the circuit court of Washington County of their petition to contest the will of Tina's father, Fred W. Howell. The circuit court dismissed the petition on the ground that service had not been timely made upon the executor of the estate. For reasons that follow, we reverse the dismissal with prejudice and remand for further proceedings in the circuit court.
The decedent's estate was admitted to probate, and letters of office were issued to the executor on June 21, 2005. The petition to contest the will was filed on December 21, 2005. Although the petitioners, who were not represented by counsel, had captioned the petition as a probate matter to be filed in the pending probate case, the circuit clerk filed the matter as a chancery case, giving it a different case number than the probate case. At the hearing on the motion to dismiss, the circuit clerk testified that according to direction from the Administrative Office of the Illinois Courts, will contest petitions were to be filed in chancery rather than in probate. Accordingly, she assigned the case a chancery number and did not file it in the pending probate proceeding. A summons was issued by the circuit clerk on December 21, 2005, and the petition and the summons were served by the sheriff on the executor 10 days later, on December 31, 2005.
On January 6, 2006, the executor filed his motion to dismiss the petition with prejudice, arguing that the petition had not been filed in the proper proceeding within six months of the admission of the will to probate and that the petitioner had failed to obtain service on the executor within six months of the admission of the will to probate, all in violation of section 8-1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/8-1 (West 2004)).
On April 4, 2006, the circuit court entered an order dismissing with prejudice the petition to contest the will. The court found that the filing of the petition as a chancery case did not deprive the court of jurisdiction to hear the matter and that the appropriate remedy for this error was not a dismissal but a transfer of the petition to the probate proceeding. However, the court found that the failure to serve the executor within six months of the admission of the will to probate was fatal, and it dismissed with prejudice the petition to contest the will.
Proceedings to contest the admission of a will to probate are governed by section 8-1 of the Probate Act (755 ILCS 5/8-1 (West 2004)). That section provides, in pertinent part, as follows:
"(a) Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6-4, * * * any interested person may file a petition in the proceeding for the administration of the testator's estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will.
(b) The petitioner shall cause a copy of the petition to be mailed or delivered to the representative, to his or her attorney of record, and to each heir and legatee whose name is listed in the petition to admit the will to probate * * * at the address stated in the petition or amended petition. Filing a pleading constitutes a waiver of the mailing or delivery of the notice to the person filing the pleading. Failure to mail or deliver a copy of the petition to an heir or a legatee does not extend the time within which a petition to contest the will may be filed under subsection (a) of this Section or affect the validity of the judgement entered in the proceeding." 755 ILCS 5/8-1(a), (b) (West 2004).
The six-month time limit set forth in section 8-1 for filing a petition to contest the admission of a will to probate is a statutory jurisdictional requirement, and without compliance with the applicable time limit, the circuit court loses jurisdiction to hear the will contest. In re Estate of Mohr, 357 Ill.App.3d 1011, 1014, 294 Ill.Dec. 398, 830 N.E.2d 810 (2005). The justification for the construction of the statute as a limitation on the circuit court's jurisdiction is the necessity to expedite the administration and distribution of estates and to prevent undue delay in the settlement and determination of property interests created by a will. In re Estate of Mohr, 357 Ill.App.3d at 1014, 294 Ill.Dec. 398, 830 N.E.2d 810. Limiting the time within which the validity of a will may be questioned helps to create stability in the administration of estates. Robinson v. First State Bank of Monticello, 97 Ill.2d 174, 185, 73 Ill.Dec. 428, 454 N.E.2d 288 (1983). We note that the right to contest the validity of a will is purely statutory, and thus it must be exercised in the manner and within the time prescribed by the Probate Act. In re Estate of Mohr, 357 Ill.App.3d at 1013, 294 Ill.Dec. 398, 830 N.E.2d 810.
Although in the instant case the petition to contest the validity of the will was filed on the last day of the six-month time limit, it was not filed in the proper proceeding, that is, the proceeding for the administration of the testator's estate. Nevertheless, while the time for filing a will contest is jurisdictional, filing it in the statutorily designated division of the circuit court is not a jurisdictional prerequisite. In re Estate of Olsen, 120 Ill.App.3d 744, 746, 76 Ill.Dec. 25, 458 N.E.2d 164 (1983). The timely filing of a petition to contest the admission of a will to probate in the wrong division of the circuit court is a procedural defect, not a jurisdictional defect. In re Estate of Olsen, 120 Ill. App.3d at 747, 76 Ill.Dec. 25, 458 N.E.2d 164. Thus, it is curable. See In re Estate of Olsen, 120 Ill.App.3d at 747, 76 Ill.Dec. 25, 458 N.E.2d 164.
In In re Estate of Olsen, 120 Ill.App.3d at 747, 76 Ill.Dec. 25, 458 N.E.2d 164, the petitioners timely filed a petition contesting the admission of a will to probate, but they filed it in the chancery division of the circuit court instead of in the proceeding in the probate division where the estate was being administered. The executor moved to dismiss the petition, and the circuit court denied the motion, instead transferring the petition from chancery to the probate proceeding after the expiration of the six-month period. The executor appealed. The appellate court affirmed the decision of the circuit court, holding that where a cause is filed in the wrong division of the circuit court, the appropriate remedy for the misfiling is to transfer the matter to the proper division,...
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