State ex rel. Unnerstall v. Berkemeyer

Decision Date17 November 2009
Docket NumberNo. SC 89982.,SC 89982.
Citation298 S.W.3d 513
PartiesSTATE ex rel. Luanne S. UNNERSTALL, Protectee, By Anna Leighton, her Conservator, Relator, v. The Honorable John B. BERKEMEYER, Respondent.
CourtMissouri Supreme Court

Richard A. Wunderlich, Sarah Mullen-Dominguez, Lewis, Rice & Fingersh, L.C., St. Louis, MO, Kurt A. Voss, Washington, MO, for respondent.



Where there's a will, there's a way, as the saying goes. In probate law, however, unless the will is as prescribed by statute, there is no will—no way.

The question here is whether the decedent's purported will can be admitted to probate, under the applicable statute, when it was not presented to the probate division within one year of decedent's death, as the statute requires.

When a person dies, Missouri's statutes specify how the person's assets are to be distributed unless there is a valid will that is admitted timely to probate. Hence, the ability of a decedent to control the disposition of property after death is subject to the formalities the law requires of a will and, after death, the time limits prescribed for the heirs or other interested persons to present the will to the probate division.

In this case, Harold Unnerstall established a trust and purportedly executed a will during his life. On the first anniversary of Mr. Unnerstall's death, his widow, Luanne S. Unnerstall, filed a petition in the probate division of the Franklin County circuit court to administer his estate. Later, the purported will was presented to the probate division. Mrs. Unnerstall asserts that her husband's assets should be subject to probate as though he died without a will because the will was not presented to the probate division within one year as required by law.

Notwithstanding Mrs. Unnerstall's objection, the respondent judge admitted her husband's purported will to probate and granted letters testamentary to Gary Unnerstall, the decedent's nephew, whom the will names as executor.

As relator, Mrs. Unnerstall petitioned this Court for a writ of mandamus asking that this Court require the respondent judge to vacate the orders admitting her husband's purported will to probate, to grant letters testamentary to her, and to enter an order declaring that her husband died intestate. This Court, which has jurisdiction under article V, section 4 of the Missouri Constitution, issued a preliminary writ of mandamus. Because the decedent's will was not presented timely, the writ is made permanent.

The Language of Writs of Prohibition and Mandamus

This Court has used different language based on whether it is issuing a writ of prohibition or mandamus. A writ in prohibition typically has been issued as a preliminary writ and then "made absolute" or quashed. In contrast, a writ of mandamus typically has been issued as an "alternative writ" and then made "peremptory" or quashed.

The distinction between prohibition1 and mandamus2 is often elusive and sometimes only serves to create confusion for parties. Petitions often seek writs of prohibition and (or "and/or") mandamus. This Court or the court of appeals then chooses which one it thinks applies. See e.g., State ex rel. Pidgeons v. Ryan, 759 S.W.2d 837, 837 (Mo. banc 1988) ("Relator filed a petition for writ of prohibition and mandamus, and we issued a preliminary rule in prohibition."). In allowing the petitioned-for writ of mandamus to be issued where a writ of prohibition seemed the better writ to issue, the court of appeals stated that "[t]he distinction between mandamus and prohibition is at best blurred, at worst nonexistent, and the subject matter to which the two writs apply overlap to a great extent." St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 148 (Mo.App.1984). The court stated that to deny a writ of mandamus in the case would be to "engage in fine, anachronistic distinctions of nomenclature" and "revert to the hyper-technical niceties of Common Law Pleading where the title of pleading was of more importance than its content." Id.

There has been some attempt to remedy this confusion. See, e.g., State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm'n of the State of Missouri, 236 S.W.3d 632, 635 (Mo. banc 2007) ("This Court issued its alternative (i.e., preliminary) writ of mandamus ... which the Court now makes peremptory (i.e., final, absolute)."). It would seem to make no difference if the same language were used for either writ.

To facilitate greater clarity, this Court from this point forward will change its terminology in mandamus and prohibition cases by abandoning the words and phrases "alternative writ," "absolute" and "peremptory." All initially issued writs in such cases shall be preliminary writs of mandamus or prohibition, as the case may be, that, upon final determination, shall be made quashed or made permanent.3

As applied in the current case, the Court notes that it issued a preliminary writ of mandamus, which was labeled as an alternative writ of mandamus. With the merits of the case decided, the Court makes the preliminary writ permanent, which directs the respondent to take the mandated action.

Facts and Procedural History

Harold H. Unnerstall died in March 2006 in Franklin County. Luanne S. Unnerstall, the relator, is his surviving spouse. Shortly after her husband's death, Mrs. Unnerstall was adjudged to be an incapacitated and disabled person, and the court appointed Anna Leighton as conservator. Ms. Leighton brings this proceeding on Mrs. Unnerstall's behalf.

Before his death, Mr. Unnerstall established the "Indenture of Trust of Harold H. Unnerstall," naming his nephew, Gary Unnerstall, as trustee of the trust estate. Mr. Unnerstall also purportedly executed a last will and testament and a codicil that provided, that on his death, all of his tangible personal property and all the rest, residue and remainder of his estate be added to the principal of the trust estate and administered in accordance with the trust. Gary Unnerstall was named as executor in the will.

Gary Unnerstall offered Mrs. Unnerstall $92,306 (10% of the trust estate) in October 2006—about seven months after Mr. Unnerstall's death—as the amount due to Mrs. Unnerstall pursuant to Mr. Unnerstall's trust and purported will. Mrs. Unnerstall did not accept this payment.

When Mrs. Unnerstall filed a "Petition to Require Administration" of her husband's estate in the probate division, one year after his death, she alleged that he had died intestate. The probate division scheduled a hearing on the petition. Gary Unnerstall filed the purported will about a month before the hearing, which was held in May 2007.4 On the day of the hearing, Gary Unnerstall filed an affidavit stating he had not opened a probate estate on behalf of Mr. Unnerstall because he believed that all of the assets Mr. Unnerstall owned at the time of his death were held in a revocable living trust and not subject to probate administration. No decision was made on the petition for administration, and the parties were given 15 days to submit memoranda of law.

The probate division judge later recused himself without making a decision. The new judge, the respondent here, sustained the "Petition to Require Administration." The respondent judge told Mrs. Unnerstall to file the application to probate the will and to pay fees for the publication. In a letter to the court, Mrs. Unnerstall's counsel asked that the will not be admitted because it had been filed with the probate division more than a year after Mr. Unnerstall's death. In November 2008, however, the respondent judge entered an order and judgment admitting the purported will of Mr. Unnerstall to probate and an order and judgment granting letters testamentary to Gary Unnerstall as personal representative. The next month, the probate division clerk filed an affidavit verifying publication of a "Notice of Letters Granted."


Mrs. Unnerstall starts her argument in the wrong place by asserting that the respondent acted "in excess of his jurisdiction." She argues that the probate division did not have "subject matter jurisdiction" to admit or reject the purported will to probate, under the statute, because more than one year had passed since Mr. Unnerstall's death. Under article V of the Missouri Constitution, circuit courts have plenary subject matter jurisdiction, which includes jurisdiction over probate matters. Accordingly, it is incorrect to cast statutory arguments as matters of subject matter jurisdiction. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009). There is no question of jurisdiction in this case; the circuit court, which in this case has a probate division, has subject matter jurisdiction to admit or reject a will to probate. Whether, under chapter 473, especially section 473.050,6 the probate division was correct in admitting the purported will of Mr. Unnerstall, however, is a different matter and is the question this Court addresses in this opinion.

Mrs. Unnerstall's petition for administration was filed under section 473.020 on the first anniversary of her husband's death. The statute allows such a petition to be filed within one year after a decedent's death by any "interested person" if "no application for letters testamentary or of administration is filed ... within twenty days" of a decedent's death. The petition then is to be set for a hearing to determine "who should be directed to apply for letters testamentary or of administration...." Section 473.020.3. Gary Unnerstall argues that by filing her petition for administration, Mrs. Unnerstall opened the estate so that any will of Mr. Unnerstall could be presented within six months of notice of letters being issued under section 473.050. Mrs. Unnerstall argues that section 473.050 prevents...

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