Mwangi v. Ndegwa, etc., [Ms. SC-2022-0934, Aug. 18, 2023] __ So. 3d __ (Ala. 2023). The Court (Cook, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) reverses the Jefferson Circuit Court’s order dismissing Lydiah Njoki Mwangi’s appeal of the Jefferson Probate Court’s order denying her petition for letters of administration of the estate of Peter Ndegwa Gioko (“the decedent”). Mwangi alleged she was the decedent’s common-law wife. The Court reiterates
This Court applies the following standard of review to a judgment of dismissal based on a lack of subject-matter jurisdiction: “‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. This Court must accept the allegations of the complaint as true. Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail.’” Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003) (citations omitted). ‘Matters of subject-matter jurisdiction are subject to de novo review.’ DuBose v. Weaver, 68 So. 3d 814, 821 (Ala. 2011).” Poiroux v. Rich, 150 So. 3d 1027, 1033 (Ala. 2014).
The determination of whether a party to proceedings in probate court is aggrieved for purposes of § 12-22-21, turns on “whether the party has claimed a legally protected right or interest in the decedent’s estate and whether the probate court’s decision adversely affects that right or interest.” Ms. *13. Here, “Mwangi has claimed that she has a right, pursuant to § 43-2- 42, to administer the decedent’s estate as his surviving wife. There is no question that the probate court’s denial of Mwangi’s petition for letters of administration adversely affected that purported right.” Ms. *15. The Court holds “[p]ursuant to § 12-22-25, a party’s failure to give security for costs within the 42-day period for appealing a probate court’s order denying a petition for letters of administration is not a jurisdictional defect.” Ms. **19-20.