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Will Contests: Timely Service of Parties

A will or trust is void if the person making it lacked sound mind at the time of execution. Watson v. Watson, 562. S.W.2d 329, 331 (Mo. 1978). To prevail on a challenge, there must be evidence tending to prove that testamentary capacity was not present at the time of execution. Armbruster v. Sutton, 244 S.W.2d 65, 72 (1951).  Evidence of mental unsoundness before or after execution — which is not too remove — is admissible to prove lack of capacity, as long as the evidence indicates the unsoundness existed at the time the will or trust was made. Id.

Independent of these substantive concerns, litigants must be keenly aware of the procedural requirements that accompany trust and will challenges. For instance, in a Petition challenging a will under Section 473.083, RSMo:

[T]he petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed at the cost of the petitioner. 

The obvious purpose of this section is to ensure that a challenger procures service of process and that, absent good cause for failure, all individuals are quickly before the court. Doran v. Wurth, 475 S.W.2d 49 (Mo. 1971).  This is understandable because Missouri favors policies and laws aimed at expeditiously winding-up a decedent’s estate. Who, though, is a necessary party? Among other things, a legatee is a necessary party. Cole v. Smith, 370 S.W.2d 307 (Mo. 1963). A legatee is a “person entitled to personal property under a will,” or “a person to whom a legacy is given.” Desloge v. Tucker, 94 S.W.283 Mo. 1906); Section 472.010 (19), RSMo. Accordingly, any person who receives property under a will must be served with service/notice of the petition challenging the will because it may impair or completely extinguish their potential inheritance. 

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