Root, et al. v. England, et al.,291 S.W.3d 834 (Mo. App. W.D. 2009)

Factual Background:

Testator died on March 24,2007.  His will was admitted to probate on April 17, 2007.  The petition to contest the will was initiated on October 22, 2007 by plaintiffs, all of who are siblings of the deceased.  The petition named the eightenn devisees in Testator’s will as defendants.  Plaintiffs requested issurance of summons upon the defendants simultaneously with the filing of their petition. On October 23, 2007, the Saline County clerk prepared and forwarded summons for service of process upon the defendants.  The defendants resided in seven states, and fifteen were non-residents of Missouri.  Service of process of sixteen of the defendants occurred without incident. However, service of process for two of the defendants residing in separate counties in California was delayed, in part, by multiple and separately identified procedural hurdels that the counties imposed upon Plaintiffs, including additional notary fees and signature requirements.  Service of process was futher delayed in one county by the inability of the deputy sheriff to locate the defendant after repeated attempts.  Consequently, service on these two defendants did not occur within the statutorily required time period.  Between these two defendants, counsel for Plaintiffs requested seven summonses and the appointment of a special process server.  Plaintiffs obtained service of process on all eighteen defendants within five months, on March 24, 2008.  Motions to dismiss were filed by one defendant on August 8, 2008, and by three other defendants on September 9. 2008 for failure of Plaintiffs to obtain service of process within the statutory time frame of ninety days.


The Circuit Court of Saline County granted the motions to dismiss, finding that Plaintiffs did not show good cause for failure to obtain service of process within ninety days.

On Appeal:

Reversed and Remanded.  Where Plaintiffs demonstrate reasonable diligence in the process of serving all defendants in a will contest proceeding, and the location, in addition to the number, of defendants provides barriers to obtaining process of service, good cause exists for failure to obtain service within ninety days.


Service of process in a will contest case is governed by RSMo. §473.083.6, which provides:

“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.”

Three evidentiary guidelines exist for establishing “good cause”: 1) proof that demonstrates difficulties in obtaining service of process; 2) proof demonstrating circumstances which impede timely service of process or which prevent service of process in its entirety; and 3) proof that such impediments are attributable to persons and things beyond the control of the plaintiff.  These guidelines are met where plaintiffs attempt service via several summonses, including appointment of a special process server, and where plaintiffs are faced with multiple procedural hurdles and delays, which they attempted to remedy in a diligent manner.  The number of the defendants and their locations are particularly important in determining “good cause.”  When there are numerous non-resident defendants, there is a greater likelihood of delays caused by the mechanics of execution of personal service; thus, it is more likely for plaintiffs to have good cause in failing to serve all defendants within the statutory time frame.