from Jefferson Circuit Court (CV-12-828)
McElroy and Marlon McElroy (hereinafter referred to
collectively as "the appellants") appeal from a
judgment of the Jefferson Circuit Court ("the circuit
court") denying their will contest. For the reasons set
forth herein, we dismiss the appeal.
April 14, 2010, Tracy McElroy filed a petition to probate the
will of Clifton McElroy, Jr., in the Jefferson Probate Court
("the probate court"). The petition stated that
Clifton died on April 11, 2010, and that Clifton's will,
which was attached to the petition and which named Tracy as
the executrix, was self-proving in accordance with the
requirements of § 43-8-132, Ala. Code 1975. On the same
day, the probate court admitted the will to probate and
issued letters testamentary to Tracy.
September 16, 2010, the appellants filed a will contest in
the probate court, alleging that Clifton's signature on
the will was forged and that, therefore, the will was not
properly executed. The appellants, who were both
Clifton's heirs and beneficiaries under his will,
demanded that their will contest be transferred to the
circuit court pursuant to § 43-8-198, Ala. Code 1975,
which provides for the transfer of a will contest by the
probate court to the circuit court, or that the
administration of the estate, including the will contest, be
removed to the circuit court pursuant to § 12-11-41,
Ala. Code 1975, because, they said, the estate could be
better administered in the circuit court.
filed a motion to dismiss the will contest, arguing that,
because the will had already been admitted to probate, the
will contest could not be filed pursuant to § 43-8-190,
Ala. Code 1975, and that the only other provision for filing
a will contest, § 43-8-199, Ala. Code 1975, required the
appellants to file the will contest in the circuit court.
Tracy also moved to dismiss the appellants'
"petition to remove" the administration of the
estate to circuit court pursuant to § 12-11-41.
appellants argued that the will contest was properly filed in
the probate court because a local act applicable to Jefferson
County gave probate courts concurrent jurisdiction with
circuit courts to decide will contests. Specifically, Act No.
1144, Ala. Acts 1971, provides that the probate court has
"general jurisdiction concurrent with that of the
Circuit Courts of this State, in equity, in the
administration of the estates of deceased persons."
Thus, they argued, because the probate court shared
concurrent equitable estate jurisdiction with the circuit
court, the probate court had jurisdiction to consider their
will contest pursuant to § 43-8-199 and Act No. 1144.
They also argued that the circuit court could have
jurisdiction over their will contest pursuant to §
12-11-41, which allows for the removal of the administration
of an estate from probate court to the circuit court "at
any time before a final settlement thereof."
November 30, 2010, the appellants filed in the probate court
a notice of withdrawal of their petition to remove the
administration of Clifton's estate from the probate court
to the circuit court. In the notice, the appellants
specifically asked the probate court to maintain jurisdiction
of the will contest. However, on December 14, 2010, the
probate court entered an order purporting to remove the
administration of Clifton's estate to the circuit court
pursuant to § 12-11-41. The probate-court record was
certified by the probate court and was filed in the circuit
court on June 21, 2012. There is nothing in the record before
this Court indicating that the circuit court entered an order
removing the administration of the estate from the probate
discovery delays, multiple continuances, and a failed
summary-judgment motion filed by the appellants, the circuit
court conducted a bench trial on the will contest over three
days in December 2016. On December 29, 2016, the circuit
court entered a judgment finding that Clifton's will did
not meet the requirements of a self-proving will pursuant to
§ 43-8-132 but that the will was properly executed and,
therefore, valid, pursuant to § 43-8-131, Ala. Code
1975. In that judgment, the circuit court, discussing its
jurisdiction, stated that "the Probate Court of
Jefferson County removed the administration of the
Estate of Clifton McElroy, Jr. to the Circuit Court of
Jefferson County pursuant to ... § 12-11-41" and
that, "[a]fter the Probate Court of Jefferson County
removed the administration of the [e]state ... to the
Circuit Court of Jefferson County, the Circuit Court ordered
the Jefferson County Probate Court to send the certified
record (which included the will contest) and documents to the
Jefferson Circuit Court." (Emphasis added.) The
appellants timely appealed.
neither party raises a question before this Court regarding
the circuit court's subject-matter jurisdiction to
consider the appellants' will contest, the absence of
subject-matter jurisdiction cannot be waived, and it is the
duty of an appellate court to notice the absence of
subject-matter jurisdiction ex mero motu. See
MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393
(Ala. 2011). If the circuit court's jurisdiction to
consider the will contest was never properly invoked, then
the judgment entered on December 29, 2016, is void and would
not support an appeal. MPQ, 78 So.3d at 394
("'A judgment entered by a court lacking
subject-matter jurisdiction is absolutely void and will not
support an appeal; an appellate court must dismiss an
attempted appeal from such a void judgment.'"
(quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ.
"The jurisdiction of both the probate court and the
circuit court over will contests is statutory and limited.
Ex parte Stephens, 259 Ala. 361, 66 So.2d 901
(1953). The only jurisdiction a court can take over such
cases is that granted by statute. A court cannot depart from