Section 1.24 Disqualification of Judge

• Library: Estate Administration 2014 Supp

V. (§1.24) Disqualification of Judge

The basis for the disqualification of a probate division judge presently enjoys some degree of uncertainty based, in part, on whether the party moving for disqualification elects to proceed under § 472.060, RSMo Supp. 2008, of the Probate Code, Chapters 472–475, RSMo, or Rule 51.05. It should also be noted that Chapter 508, RSMo, of The Civil Code of Missouri (Civil Code) contains provisions for the disqualification of a judge. Section 508.130, RSMo 2000, like § 472.060, requires the moving party to state the basis of the disqualification. But under the provisions of §§ 472.141 and 506.010, RSMo 2000, it is believed that § 472.060 probably preempts the applicability of § 508.130 under the “otherwise provided by law” proviso. Thus, counsel is confronted with a choice between § 472.060 and Rule 51.05.

If a choice between § 472.060 and Rule 51.05 is available, the advantage in proceeding under Rule 51.05 lies in the fact that the moving party is not required to give a reason as a basis for the disqualification. The advantage in proceeding under § 472.060 lies in the fact that the moving party may request relief at almost any time.

State ex rel. Raack v. Kohn, 720 S.W.2d 941 (Mo. banc 1986), and State ex rel. Nassau v. Kohn, 731 S.W.2d 840 (Mo. banc 1987), addressed the question of disqualification of a probate division judge.

In Raack, 720 S.W.2d 941, William Raack, relator, was appointed guardian ad litem of Helene Weihl in connection with a dissolution action. Her funds...