254 So. 3d 872
Ala.2017Background
- Clifton McElroy Jr.’s will was admitted to probate in Jefferson Probate Court on April 14, 2010; Tracy McElroy was appointed executrix.
- Clifton’s children, Tomeka and Marlon McElroy (appellants), filed a will contest in the probate court ~5 months later, alleging the signature was forged.
- Appellants sought transfer/removal of the contest to Jefferson Circuit Court under §43-8-198 or removal of estate administration under §12-11-41; they later withdrew the request to remove administration.
- Despite the withdrawal, the probate court entered an “Order of Removal” purporting to remove the estate to circuit court; no petition for removal or circuit-court removal order appears in the record.
- The circuit court tried the will contest and entered judgment on December 29, 2016, upholding the will as properly executed but stating the probate court had removed the administration to circuit court.
- The Alabama Supreme Court held the circuit court never acquired subject-matter jurisdiction because removal under §12-11-41 requires a petition and order in the circuit court; the circuit judgment is therefore void and the appeal dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the will contest could be filed in probate after probate admission | Appellants: local Act No.1144 gives Jefferson Probate Court concurrent equity jurisdiction, so contest in probate was proper | Tracy: after probate a contest must be filed in circuit court under §43-8-199 | Held: Probate court had jurisdiction to hear the post-probate contest because Act No.1144 confers concurrent equitable jurisdiction (so filing in probate was valid) |
| Whether the estate administration was validly removed to circuit court | Appellants: removal/transfer sought (then withdrawn); probate court issued Order of Removal | Tracy: removal requires petition and order in circuit court; probate cannot unilaterally transfer administration | Held: Probate court’s Order of Removal ineffective; removal requires filing in and an order by the circuit court (DuBose) |
| Whether the circuit court had subject-matter jurisdiction to decide the will contest | Appellants: circuit court acquired jurisdiction when probate certified the record and case proceeded there | Tracy: circuit court lacked jurisdiction absent proper removal petition/order | Held: Circuit court never acquired jurisdiction over administration or will contest; its judgment is void and appeal must be dismissed |
| Effect of Act No.1144 on removal procedure | Appellants: concurrent jurisdiction might obviate removal formalities | Tracy: Act No.1144 is cumulative and does not change statutory removal procedure | Held: Act No.1144 does not alter §12-11-41 removal requirements; standard removal procedure still applies (Ex parte Clayton) |
Key Cases Cited
- MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391 (recognizing appellate duty to notice lack of subject-matter jurisdiction)
- Bond v. Pylant, 3 So.3d 852 (post-probate contests generally must be filed in circuit court)
- Coleman v. Richardson, 421 So.2d 113 (probate court with local-act concurrent equity jurisdiction may hear post-probate will contests)
- DuBose v. Weaver, 68 So.3d 814 (removal under §12-11-41 requires a petition filed in and an order entered by the circuit court)
- Ex parte Clayton, 514 So.2d 1013 (local act’s grant of equity jurisdiction is cumulative and does not alter statutory removal rights/procedures)