Steve Powell and in-Grid Powell v. Stephen

This proceeding is an action to have a rejected will admitted to probate. It is therefore a ""will contest"" within the intent of § 473.083, RSMo 1978. 1 The Circuit Court of Stone County dismissed the action upon the ground that service of process was not secured and completed upon all parties defendant within 90 days after the petition was filed, as required by § 473.083.5. The plaintiffs have appealed. We review only to determine whether there has been an abuse of discretion. Cole v. Smith, 370 S.W.2d 307, 309 (Mo. 1963); Blatt v. Haile, 291 S.W.2d 85, 88 (Mo. 1956). Jennie Ford, a 74-year-old resident of Stone County, died May 22, 1980. On June 4, 1980, a will Jennie had executed September 13, 1967, was admitted to probate by the Probate Division of the Circuit Court of Stone County. On October 10, a handwritten instrument which purported to be Jennie's last will and testament and which purported to revoke any and all other wills, was presented for probate. The handwritten instrument was dated December 23, 1977. On October 21, 1980, the regular Judge of the Probate Division of the Circuit Court of Stone County entered an order rejecting the later will upon the ground that Jennie had been declared incompetent 3 days before the later will was executed and upon the further ground that the witnesses to the holographic will failed to swear to the testatrix's competency at the time the instrument was executed.