Kleim v. Sansone, 248 S.W.3d 599 (Mo. Banc. 2008)

Factual Background:

Decedent, Elden Choisser, executed a last will and testament on August 17, 2005, in which he made specific bequests of personal property to plaintiff, Mike Orville, Lorayne Pletting, a technical school, and certain public libraries. He left his real estate to defendant, Gregory Sansone. He left one-half of his residuary estate to plaintiff and one-half to Ms. Pletting. He named defendant as his personal representative.

Decedent died on August 18, 2005. On September 12, 2005, defendant filed his Application for Probate of the Last Will and Testament of Elden Choisser and his Application for Letters Testamentary in the probate division of the Circuit Court in Washington County. The matter of “In the Estate of Elden Choisser” was opened in the probate division. The probate division did not admit the will when the application was filed.  On November 2, 2005, plaintiff filed a will contest petition with the clerk of the probate division of the Circuit Court of Washington County. The petition named defendant as the sole defendant.

On April 28, 2006, the probate division admitted the will to probate and appointed defendant personal representative of decedent’s estate. The probate division clerk first published notice of letters testamentary on May 4, 2006.  Defendant subsequently moved to dismiss the will contest for lack of subject matter jurisdiction on the grounds that 1) the petition was filed with the clerk of the probate division and not with the circuit court, and only the circuit court had subject matter jurisdiction, and 2) no petition was filed with the clerk of the circuit court within six months of the publication of the Notice of Letters Testamentary.


The probate division dismissed plaintiff’s will contest petition for lack of subject matter jurisdiction, and it thereafter entered a judgment of dismissal. Plaintiff appealed.

On Appeal:

The Court of Appeals held that:

  1. filing of will contest with clerk of probate division rather than clerk of circuit court did not deprive the circuit court of subject matter jurisdiction, and
  2. filing of will contest before statutory prerequisite of acceptance or rejection of will to probate deprived the trial court of subject matter jurisdiction.  Section 473.083 presupposes that the acceptance or rejection of the will by the probate division is a condition precedent for a will contest.  In this case, the will contest petition was filed over five months before the will was admitted to probate. Accordingly, the circuit court had no subject matter jurisdiction at the time it was filed. When a trial court has no subject matter jurisdiction because a condition precedent to jurisdiction has not occurred at the time the petition is filed, the trial court must dismiss the action as prematurely filed.