I. Facts and Procedural HistoryWoodie and Korie married in October 2005. Woodie died in May 2011. In addition to Korie, Woodie was survived by Jonathan Fred Saylor, an adult son from Woodie's previous marriage.
A few weeks after Woodie's death, Jonathan filed a petition to probate Woodie's will in the Marshall Probate Court.1 The petition also requested that the probate court appoint Jonathan as personal representative of Woodie's estate (“the estate”).
Woodie's will requests that Jonathan be appointed as personal representative of the estate, and the will relieves the personal representative of the obligations to provide a bond and to file an inventory.2 In regard to the distribution of the estate, Woodie's will states:
“I GIVE, DEVISE AND BEQUEATH all my property of whatever nature and wherever situated, including any property over which I may have a power of appointment, to my son, JONATHAN FRED SAYLOR, if he survives me. HOWEVER, I GIVE, DEVISE AND BEQUEATH a life estate in and to my home and real property where my wife and I reside at the time of my death, to my wife, KORIE STERLING SAYLOR.”
(Capitalization in original.)
Contemporaneously with the filing of the petition to probate Woodie's will, Jonathan also filed a document executed by Korie. In that document, Korie acknowledged that she had received notice of the filing of the petition to probate Woodie's will, and she consented to the admission of the will to probate without further notice to her.3 See Ala.Code 1975, § 43–8–164 (notice requirements for hearing to probate a will).
On June 13, 2011, the probate court entered an order admitting Woodie's will to probate and appointing Jonathan as the personal representative of the estate (“the personal representative”).
Korie did not file a petition for an elective share within six months after the will was admitted to probate. See Ala.Code 1975, § 43–8–73(a) (elective-share petition must be filed “within six months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires”). On December 22, 2011, Korie filed a “Request for Extension of Time to File Petition for Elective Share.” In that document, she asserted:
“2. The estate is still under administration and has not been settled.
“3. No accounting or inventory has been filed; [ 4 ] the assets and liabilities are unsettled at this point.
“4. An extension is necessary to enable the widow to acquaint and familiarize herself of the condition of her husband's estate and make an intelligent election thereof.
“5. The spouse is not guilty of any conduct which would tend to negate her right to an extension.
“6. Refusing to extend the period would impose an undue hardship upon the spouse.
“7. Spouse first consulted counsel on December 20, 2011, and first learned of her right to dissent from the Will. Spouse had not been apprised of her election right and files this request as soon as practical with diligence upon notice. The widow is entitled to the requested relief in equity.
“8. Alabama Code [1975,] § 43–8–73 [,] is remedial in nature and should be construed liberally so as to give the broadest possible protection to the surviving spouse.”
Korie requested “a reasonable time to file a Petition for Elective Share.”
On January 12, 2012, the personal representative filed an objection to Korie's request for an extension of time. The personal representative contended that, pursuant to “ § 43–8–73, [Ala.Code 1975,] any extension of time to file notice of election must be granted before the election period has expired” and that, “[i]n order to be timely, the said petition for elective share would have had [to have] been filed by December 13, 2011.” The personal representative requested that the probate court deny Korie's request for an extension of time.
Section § 43–8–73(a) provides:
“The surviving spouse may elect to take his elective share by filing with the court and mailing or delivering to the personal representative, if any, a petition for the elective share within six months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.
“The court may extend the time for election for cause shown by the surviving spouse before the time for election has expired. ”
(Emphasis added.)
On January 23, 2012, Korie filed a “Petition for Elective Share,” stating that she was claiming an elective share of the estate and noting that she had filed a request for an extension of time to do so on December 22, 2011.
On February 14, 2012, the probate court entered an order granting Korie's request for an extension of time and an order allowing Korie's claim to take an elective share of the estate. The latter order did not adjudicate the amount of that elective share; it set a date on which the probate court would conduct a hearing to determine that amount and then enter a further order with respect thereto. See Ala.Code 1975, § 43–8–70(a) (providing that a surviving spouse's elective share is “the lesser of (1) All of the estate of the deceased reduced by the value of the surviving spouse's separate estate; or (2) One-third of the estate of the deceased”); see also Ala.Code 1975, § 43–8–73(d) (“After notice and hearing, the court shall determine the amount of the elective share and shall order its satisfaction from the assets of the estate.”); Ala.Code 1975, § 43–8–75(a) (“In the proceeding for an elective share, values included in the estate which pass or have passed to the surviving spouse, or which would have passed to the surviving spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the estate.”).
In May 2012, the personal representative filed, in the Marshall Circuit Court, a petition to remove the estate administration from the probate court to the circuit court. See Ala.Code 1975, § 12–11–41. Thereafter, the circuit court entered an order removing the administration of the estate from the probate court to the circuit court; the probate court had not yet held a hearing to determine the amount of Korie's elective share.
In November 2012, the personal representative filed in the circuit court a motion for a summary judgment as to Korie's claim for an elective share. The motion alleged that the probate court should have denied Korie's claim on the grounds that her petition was not timely filed and that, under the circumstances presented, the probate court had no authority to extend the time for Korie to exercise her right of election.
Korie filed a response to the personal representative's summary-judgment motion. Her response alleged:
“1. At some point on or before June 13, 2011, the widow met with the attorney for the estate for execution of a consent to probate the Will as requested.... Neither at that time, nor at any time, did he advise her that he represented the estate and that she should seek independent legal counsel nor was there any discussion of the assets of the estate which would have allowed her to make an informed decision where she was aware of her options. Under the Will, she received a life estate in the marital residence for which she is paying a mortgage payment of $986.00 a month (26 years remaining) as well as paying for half of a tractor ($22,000) in which she has no interest and which is an asset of the estate.[ 5 ]
“....
“3. On or about the 20th day of December, 2011, the widow first consulted with counsel regarding her situation. Aside from having lost her husband seven months before, she was unaware of the assets of the estate and extent of his holdings.... Counsel immediately filed on the 22nd day of December, 2011, a request for extension to file her petition for an elective share of the decedent's estate (nine days after the election period expired). Shortly thereafter, counsel for the respondent reviewed the probate records of Marshall County regarding the real estate holdings of the decedent and ... filed the widow's petition for elective share. Said petition was granted by Order of the Probate Court on February 14, 2012, granting the respondent's petition for an elective share.
“4. Ala.Code 1975, § 12–22–21, provides the basis for appeal from the Order, Judgment or Decree of the Probate Court may be taken by the party aggrieved to the Circuit Court or Supreme Court in the cases specified and within the time frame for an appeal, generally within forty-two days after a determination. No appeal, timely or otherwise, has been made regarding the Order of the Probate Court regarding the extension of time granted or the order granting the elective share requested by the widow.”
In support of her response, Korie filed an affidavit that states:
“I am Korie Sterling Saylor, widow of the decedent, Woodie Jim Saylor, and respondent in this case. This case involves an elective share regarding my deceased husband's estate. At the time of his death, my husband was in the cattle business; after his death I worked as a waitress at the El Rancho restaurant. I was aware that he owned cattle and llamas, equipment and land, I was unaware of the specifics of the business operation and the condition of his estate. At some point on or before June 13, 2011, I met with Clint Maze, the attorney for the estate, regarding execution of the consent to probate the Will as he requested. Neither at that time nor at any time, did he advise me that he represented the estate and that I should seek independent legal cou
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