Section 17.9 Time

• Library: Estate Administration 2014 Supp

1. (§17.9) Time

A will contest petition must be filed within six months:

· after the date of the “probate or rejection” of the will by the probate division of the circuit court; or

· after the first publication of notice of granting of letters on the estate of the decedent,

whichever is later. Section 473.083.1, RSMo 2000; Winkler v. Winkler, 634 S.W.2d 217 (Mo. App. E.D. 1982); Lopiccolo v. Semar, 890 S.W.2d 754 (Mo. App. E.D. 1995). Only the circuit court has the power to determine the timeliness of the action. Coyne v. Layton, 409 S.W.2d 92 (Mo. 1966); Black v. City Nat’l Bank & Trust Co., 321 S.W.2d 477 (Mo. 1959). A will can be admitted to probate only after the will has been properly presented and filed in the probate division with an accompanying petition or application for the probate of the will along with proof of signatures. Section 473.050, RSMo 2000; Gillman v. Mercantile Trust Co., 629 S.W.2d 441 (Mo. App. E.D. 1981).

In Kleim v. Sansone, 248 S.W.3d 599 (Mo. banc 2008), the Supreme Court determined that the six-month filing time limitation for a will contest established in § 473.083.1 is one of limitation and not one of jurisdiction. Thus, it only sets a maximum time period within which a will contest petition must be filed. Kleim involved the decedent’s daughter (Kleim), who filed the will contest petition in the probate division five months before her father’s will had been admitted to probate. The probate division determined that, because she filed her petition prematurely and in the wrong court, the probate court had no subject matter jurisdiction over the case and, accordingly, dismissed her will contest petition. On appeal, the Supreme Court held that statutes of limitations do not restrict how early a party may file. The fact that Kleim filed the will contest petition...