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Ex parte Taylor

Supreme Court of Alabama

October 13, 2017

Ex parte Alice Lynn Harper Taylor
v.
Alice Lynn Harper Taylor In re: William Charles Harper and James Robison Harper, Jr.

         Monroe Probate Court, No. 3330

          PETITION FOR WRIT OF MANDAMUS

          MURDOCK, Justice.

         Alice Lynn Harper Taylor ("Alice") petitions this Court for a writ of mandamus directed to the Monroe Probate Court requiring that court to enter orders (i) reinstating her petition to probate a will allegedly executed by Alice Earle Harper in 2007 ("the 2007 will"), (ii) reinstating her petition contesting the 2007 will, and (iii) transferring her contest of the 2007 will to the Monroe Circuit Court pursuant to § 43-8-198, Ala. Code 1975. As hereinafter discussed, we treat the petition as to the first two issues as a timely filed direct appeal, and we reverse and remand. With respect to the third issue, i.e., the transfer of the contest of the 2007 will to the Monroe Circuit Court, we grant the petition.

         Facts and Procedural History

         Alice Earle Harper, a resident of Monroe County, died on March 1, 2013. She was survived by three adult children: Alice, William Charles Harper ("William"), and James Robison Harper, Jr.On November 12, 2013, Alice filed in the Monroe Probate Court a petition to probate a will allegedly executed by Alice Earle Harper in 1995 ("the 1995 will"). In her petition to probate the 1995 will, Alice acknowledged the existence of the 2007 will, but she asserted that the 2007 will was invalid based on several grounds, including that Alice Earle Taylor lacked the mental capacity to make the 2007 will because she suffered from dementia and that the 2007 will was procured through undue influence exerted by William. Alice attached a copy of the 2007 will as an exhibit to her petition to probate the 1995 will; the 2007 will purports to revoke all earlier wills executed by Alice Earle Harper.

         The Monroe Probate Court set Alice's petition to probate the 1995 will for a hearing. As we noted in an earlier appeal involving these parties, Taylor v. Estate of Harper, 164 So.3d 542 (Ala. 2014)("Taylor I"):

"[O]n January 8, 2014, William filed a petition in Escambia County to probate [the 2007 will]. On January 17, 2014, in the Escambia Probate Court, Alice filed a motion to dismiss and/or to stay the proceeding in Escambia County until the proper venue for the probate proceeding was determined. Alice cited § 43-8-21, Ala. Code 1975, which addresses a situation like this one where there are multiple probate proceedings, and argued that under § 43-8-21 the Monroe Probate Court is the proper venue. On February 19, 2014, the Escambia Probate Court admitted the 2007 will to probate and issued letters testamentary to William, as the personal representative named in the 2007 will. On March 3, 2014, Alice filed a notice of appeal pursuant to § 12-22-21(2), Ala. Code 1975, which allows an appeal to the circuit court or to the Alabama Supreme Court of a probate court's 'judgment or order on an application claiming the right to execute a will or administer an estate' (case no. 1130587).
"On April 11, 2014, William filed in the Monroe Probate Court a motion to dismiss Alice's petition to probate the 1995 will. William argued that the 2007 will revoked all earlier wills and that the 2007 will gave the personal representative the right to choose the county in which the will would be probated. On April 14, 2014, the Monroe Probate Court granted William's motion to dismiss on the ground that it lacked subject-matter jurisdiction. Alice filed an appeal pursuant to § 12-22-21 from the Monroe Probate Court's grant of the motion to dismiss her petition to probate the 1995 will (case no. 1130884).

164 So.3d at 543-44.

         In addressing Alice's arguments in Taylor I, this Court stated:

"[T]he decedent died in Monroe County. Alice filed a petition to probate the decedent's 1995 will in Monroe County. It is undisputed that the decedent was domiciled in Monroe County at the time of her death. Section 43-8-162(1)[, Ala. Code 1975, ] provides that venue is proper in the probate court where the decedent was an inhabitant at the time of her death. This Court has equated the term 'inhabitant' with the word 'domiciliary, ' and a domicile consists of a residence at a particular place accompanied by an intent to remain there permanently or for an indefinite length of time. Ambrose v. Vandeford, 277 Ala. 66, 167 So.2d 149 (1964).
"Subsequently, William filed a petition to probate the decedent's 2007 will in Escambia County. The 2007 will provided that William, as the personal representative, had the discretion to probate the will in any county w[h]ere the decedent owned property at the time of her death. It is undisputed that the decedent owned property in Escambia County at the time of her death. Section 43-8-162(5)[, Ala. Code 1975, ] provides that probate of a will is proper in the county designated by the testator in the will if the testator owns property in that county at the time of her death.
"Alice challenges the validity of the 2007 will; William challenges the validity of the 1995 will. Both challenges go to the merits of the case, i.e., whether either of the tendered wills is entitled to be admitted to probate, and, if so, which one. Simply because William has submitted a will with a later date, which purports to revoke all prior wills, does not mean that the 2007 will is valid, nor does it mean that the Escambia Probate Court is the proper venue. The legislature has provided for the proper venue in probate matters when more than one probate court has venue. That is what we have before us in this case. The Monroe Probate Court is the proper venue under § 43-8-162(1), and the Escambia Probate Court is the proper venue under § 43-8-162(5). The legislature has determined that when there are multiple venues for a probate proceeding, the probate court in which the proceeding was first commenced shall have the exclusive right to proceed. § 43-8-21(a)[, Ala. Code 1975)]. Section 43-8-21(b)[, Ala. Code 1975), ] provides that if multiple proceedings are commenced in more than one probate court and those proceedings involve the same estate, then the probate court where the proceeding was first commenced shall hear the matter, and the other court shall hold the matter in abeyance until the question of venue is decided.
"....
"Based on the foregoing, we hold that venue in this case is proper in the Monroe Probate Court, by virtue of § 43-8-162 and § 43-8-21. Any argument as to whether the 1995 will or the 2007 will is the valid last will and testament of the decedent and entitled to admission to probate is a question on the merits and has yet to be determined. We reverse the judgment of the Escambia Probate Court admitting the 2007 will to probate and appointing William as a personal representative because, under § 43-8-21, the Monroe Probate Court has the 'exclusive right to proceed.' We remand the cause (probate no. 10058) to the Escambia Probate Court, which shall set aside its order admitting the 2007 will to probate and appointing William as personal representative, recalling and revoking any letters testamentary issued therewith. William's petition filed in Escambia County shall be held in abeyance in accordance with § 43-8-21(b). We reverse the judgment of the Monroe Probate Court because it erred in dismissing Alice's petition to probate the 1995 will. We remand the cause (probate no. 3330) to the Monroe Probate Court ...

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