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Written Request to Transfer Will Contest to Circuit Court Divests Probate Court of Jurisdiction

Weems v. Long and Sutherland, [Ms. 1190369, Apr. 16, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Shaw, J.; Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur) dismisses Terry Weems’s appeal from the Winston Probate Court’s 2019 order admitting a 2002 will of Elizabeth Sutherland to probate and appointing her daughter Angela as personal representative. Before entry of the order admitting the 2002 will, Terry had filed a 2013 will of Elizabeth which purported to revoke the 2002 will. In November 2017, Angela filed in Probate Court a contest of the 2013 will filed by Terry. Ms. *6. Angela included in her initial pleading a written request to transfer her contest to circuit court. Ibid.

In pertinent part, § 43-8-198, Ala. Code 1975 provides that “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 ….” Emphasizing the mandatory language of § 43-8-198, the Court holds that “[a]fter receiving Angela’s proper and timely transfer demand with her will contest, the probate court issued no order of transfer and continued to take action in the case, including holding a hearing and issuing an order concluding that the 2013 will was the product of undue influence. Because the probate court was required to transfer the contest after the demand to transfer was made, it had no jurisdiction to hold a hearing or to issue its order.” Ms. *8. Because a void judgment will not support an appeal, the Court dismisses Terry’s appeal and vacates the 2019 order entered by the probate court.

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