from Colbert Circuit Court (CV-16-39). Jacqueline M. Hatcher,
D. Dill of Wilmer & Lee, P.A., Huntsville; and Tom Minetree
of The Elder Law Practice of Tom Minetree, Sheffield, for
Brent Woodall, Tuscumbia, for appellee.
Christopher Jones ("Chris Jones") appeals from a
judgment of the Colbert Circuit Court ("the circuit
court") in favor of Tammy Brewster and Jeffrey Eugene
Brewster in a will contest filed by Chris Jones concerning
the will of his father, Mike Jones. Because the circuit
courts judgment is void for lack of subject-matter
jurisdiction, we dismiss the appeal.
Facts and Procedural History
Jones died on August 23, 2015. On August 7, 2015, 16 days
before his death, Mike Jones executed a will devising all of
his property, except $ 100, to the Brewsters, who were Mike
Joness neighbors. The will provided that Chris Jones would
receive $ 100 "and absolutely nothing more of any kind
or nature." Mike Jones also appointed Tammy Brewster as
the executrix of his estate. On August 28, 2015, the Colbert
Probate Court ("the probate court") appointed an
administrator ad colligendum "to collect, protect, and
preserve the goods and chattels of the deceased[s] estate
and ascertain the indebtedness of the deceased." On
September 2, 2015, Tammy Brewster filed in the probate court
a petition seeking an order granting her letters testamentary
as the executrix of Mike Joness estate; on September 4,
2015, Chris Jones filed a petition requesting that the
probate court grant him letters of administration.
October 23, 2015, Chris Jones filed a will contest in the
probate court alleging
that the Brewsters had coerced and had exerted undue
influence on Mike Jones to procure the August 7, 2015, will.
Contemporaneously with the complaint, Chris Jones filed in
the probate court a motion to transfer the will-contest
proceedings to the circuit court pursuant to § 43-8-198, Ala.
Code 1975. The probate court set the matter for a hearing on
November 16, 2015. On September 21, 2016, the probate court
certified the probate-court record. According to the
case-action summary in the circuit court, the proceedings
were docketed in the circuit court on September 21, 2016. The
record, however, does not include an order of the probate
court transferring the will contest to the circuit court. The
probate court also did not rule on Tammy Brewsters request
for letters testamentary or on Chris Joness request for
letters of administration.
circuit court held a three-day trial on the will contest,
which concluded on November 29, 2017. On January 2, 2018, the
circuit court entered a judgment in favor of the Brewsters,
finding that Mike Jones had intended to disinherit Chris
Jones and concluding that the evidence did not establish that
the Brewsters influenced Mike Jones or exercised control over
him in a manner sufficient to invalidate his will. The
circuit court remanded the cause to the probate court for the
purpose of distributing Mike Joness assets pursuant to the
will. Chris Jones filed a timely notice of appeal from the
circuit courts judgment to this Court.
addressing the merits of Chris Joness appeal, this Court
must determine whether the circuit court had subject-matter
jurisdiction over the will contest.
" Although neither party raises a question before this
Court regarding the circuit courts 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 courts
jurisdiction to consider the will contest was never properly
invoked, then the judgment entered on [February 13, 2018], is
void and [will] 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.App. 2008)
"McElroy v. McElroy, 254 So.3d 872, 875 (Ala.
" "In Alabama, a will may be contested in two
ways: (1) under § 43-8-190, Ala. Code 1975, before probate,
the contest may be instituted in the probate court or (2)
under § 43-8-199, Ala. Code 1975, after probate and within
six months thereof, a contest may be instituted by filing a
complaint in the circuit court of the county in which the
will was probated."
" Stevens v. Gary, 565 So.2d 73, 74 (Ala.
"Bond v. Pylant, 3 So.3d 852, 854 (Ala.
2008)." Burns v. Ashley, 274 So.3d 970, __
Alabama law, a circuit court, under specified conditions
delineated in the pertinent statute, can obtain
subject-matter jurisdiction over a will contest or the
administration of an estate. The probate court has general
and original jurisdiction over matters involving the
administration of estates and the probating of wills. See
Ala. Const. 1901, § 144; and § 12-13-1, Ala. Code 1975.
Pursuant to § 43-8-190, Ala. Code 1975, the probate court has
jurisdiction over will contests where a will has not been
admitted to probate. Section 43-8-190, Ala. Code 1975,
states, in pertinent part:
"A will, before the probate thereof, may be contested by
any person interested therein, or by any person, who, if the
testator had died intestate, would have been an heir or
distributee of his estate, by filing in the court where it is
offered for probate allegations in writing that the will was
not duly executed, or of the unsoundness of mind of the
testator, or of any other valid objections thereto ...."
party, however, has the statutory right to seek a transfer of
a will contest from the probate court to the circuit court
pursuant to § 43-8-198, Ala. Code 1975, which reads:
"Upon the demand of any party to the contest, made in
writing at the time of filing the initial pleading, the
probate court, or the judge thereof, must enter an order
transferring the contest to the circuit court of the county
in which the contest is made, and must certify all papers and
documents pertaining to the contest to the clerk of the
circuit court, and the case shall be docketed by the clerk of
the circuit court and a special session of said court may be
called for the trial of said contest or, said contest may be
tried by said circuit court at any special or regular session
of said court. The issues must be made up in the circuit
court as if the trial were to be had in the probate court,
and the trial had in all other respects as trials in other
civil cases in the circuit court ...."
comply with the statute, the following prerequisites must be
met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested,
see Hooper v. Huey, 293 Ala. 63, 67, 300 So.2d 100,
104 (1974), disapproved of on other grounds, Bardin v.
Jones, 371 So.2d 23 (Ala. 1979); (2) the party seeking
the transfer must file a written demand for the transfer in
the probate court; (3) the transfer demand must be filed at
the time of the filing of the will-contest complaint or other
initial pleading; (4) the probate court must enter a written
order transferring the will contest to the circuit court; (5)
the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk;
(6) the circuit-court clerk shall docket the case in the
circuit court; and (7) the circuit court must set the will
contest for a
trial at a regular or a special session of court.
will has been admitted to probate in the probate court,
jurisdiction in the circuit court cannot be invoked pursuant
to a transfer under § 43-8-198. Within six months following
the admission of the will to probate, however, a person with
an interest in the will may file a will contest directly in
the circuit court pursuant to § 43-8-199, Ala. Code 1975,
"Any person interested in any will who has not contested
the same under the provisions of this article, may, at any
time within the six months after the admission of such will
to probate in this state, contest the validity of the same by
filing a complaint in the ...