(251) 299-0101

Abatement - Actions Taken By Personal Representative Prior to Appointment

Ex parte Evangela Skelton, [Ms. 1160641, Oct. 26, 2018] __ So. 3d __ (Ala. 2018). The Court (Mendheim, J.; and Stuart, C.J., and Parker, Shaw, Bryan, and Seller, JJ., concur; Main, J., concurs in the result; and Bolin and Wise, JJ., recuse) issues a writ of mandamus to the Jefferson Circuit Court directing it to vacate its order denying a motion to abate filed by the estate of Brian Lee Skelton, Sr. (Brian), pursuant to the prior pending action statute, § 6-5-440, Ala. Code 1975.

Prior to her appointment as personal representative of Brian’s estate, Evangela Skelton (Angel) filed in the Jefferson Probate Court a motion to appoint a successor trustee for a trust for which Brian was acting as trustee at the time of his death. Angel named a number of interested parties, including Brian’s nephew, Joshua M. Council (Joshua). Ms. *7. At the time Angel filed the motion to appoint a successor trustee, her petition to be appointed personal representative of Brian’s estate had not yet been granted.

Joshua filed in the Jefferson Circuit Court a petition to terminate the trust. Ms. *8. Angel moved to abate Joshua’s petition under the prior pending action statute. Ms. *9-10.

The Court first held that “[n]o impediment to subject-matter jurisdiction existed as to Angel when she filed the petition for appointment in the probate court. And, because no jurisdictional impediment existed as to Angel, her subsequent appointment as personal representative related back to her filing of that petition. See Ala. Code 1975, § 43-2-831 (“The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.’) ....” Ms. *15.

The Court ultimately held Joshua’s action was subject to abatement because § 6-5-440 applies to compulsory counterclaims. Ms. *16. The Court noted that Joshua’s “petition for termination sought, in part, the same substantive relief as to the trust as was sought in the petition for [Angel’s] appointment, particularly the final division and distribution of the trust property according to the terms of the trust.” Ms. *19.

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