                                                           NO. 5-06-0224
                        N O T IC E

 Decision filed 04/26/07. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                              FIFTH DISTRICT
___________________________________________________________________________

In re ESTATE OF FRED W. HOWELL,         ) Appeal from the Circuit Court of
Deceased                                ) Washington County.
                                        )
(Tina Quick and Stephen A. Quick,       ) No. 05-CH-35
Petitioners-Appellants, v. Danny Thomas )
Howell, Executor, Respondent-Appellee). ) Honorable Dennis G. Hatch,
                                        ) Judge, presiding.
__________________________________________________________________________

                  PRESIDING JUSTICE WELCH delivered the opinion of the court:

                  The petitioners, Tina Quick and Stephen A. Quick, appeal from the dismissal with

prejudice by the circuit court of Washington County of their petition to contest the will of

Tina's father, Fred W. Howell. The circuit court dismissed the petition on the ground that

service had not been timely made upon the executor of the estate. For reasons that follow,

we reverse the dismissal with prejudice and remand for further proceedings in the circuit

court.

                  The decedent's estate was admitted to probate, and letters of office were issued to the

executor on June 21, 2005. The petition to contest the will was filed on December 21, 2005.

Although the petitioners, who were not represented by counsel, had captioned the petition

as a probate matter to be filed in the pending probate case, the circuit clerk filed the matter

as a chancery case, giving it a different case number than the probate case. At the hearing

on the motion to dismiss, the circuit clerk testified that according to direction from the

Administrative Office of the Illinois Courts, will contest petitions were to be filed in

chancery rather than in probate. Accordingly, she assigned the case a chancery number and

did not file it in the pending probate proceeding. A summons was issued by the circuit clerk


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on December 21, 2005, and the petition and the summons were served by the sheriff on the

executor 10 days later, on December 31, 2005.

       On January 6, 2006, the executor filed his motion to dismiss the petition with

prejudice, arguing that the petition had not been filed in the proper proceeding within six

months of the admission of the will to probate and that the petitioner had failed to obtain

service on the executor within six months of the admission of the will to probate, all in

violation of section 8-1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/8-1 (West

2004)).

       On April 4, 2006, the circuit court entered an order dismissing with prejudice the

petition to contest the will. The court found that the filing of the petition as a chancery case

did not deprive the court of jurisdiction to hear the matter and that the appropriate remedy

for this error was not a dismissal but a transfer of the petition to the probate proceeding.

However, the court found that the failure to serve the executor within six months of the

admission of the will to probate was fatal, and it dismissed with prejudice the petition to

contest the will.

       Proceedings to contest the admission of a will to probate are governed by section 8-1

of the Probate Act (755 ILCS 5/8-1 (West 2004)). That section provides, in pertinent part,

as follows:

              "(a) Within 6 months after the admission to probate of a domestic will in

       accordance with the provisions of Section 6-4, *** any interested person may file a

       petition in the proceeding for the administration of the testator's estate or, if no

       proceeding is pending, in the court in which the will was admitted to probate, to

       contest the validity of the will.

              (b) The petitioner shall cause a copy of the petition to be mailed or delivered

       to the representative, to his or her attorney of record, and to each heir and legatee


                                               2
       whose name is listed in the petition to admit the will to probate *** at the address

       stated in the petition or amended petition. Filing a pleading constitutes a waiver of

       the mailing or delivery of the notice to the person filing the pleading. Failure to mail

       or deliver a copy of the petition to an heir or a legatee does not extend the time within

       which a petition to contest the will may be filed under subsection (a) of this Section

       or affect the validity of the judgement entered in the proceeding." 755 ILCS 5/8-1(a),

       (b) (West 2004).

       The six-month time limit set forth in section 8-1 for filing a petition to contest the

admission of a will to probate is a statutory jurisdictional requirement, and without

compliance with the applicable time limit, the circuit court loses jurisdiction to hear the will

contest. In re Estate of Mohr, 357 Ill. App. 3d 1011, 1014 (2005). The justification for the

construction of the statute as a limitation on the circuit court's jurisdiction is the necessity to

expedite the administration and distribution of estates and to prevent undue delay in the

settlement and determination of property interests created by a will. In re Estate of Mohr,

357 Ill. App. 3d at 1014. Limiting the time within which the validity of a will may be

questioned helps to create stability in the administration of estates. Robinson v. First State

Bank of Monticello, 97 Ill. 2d 174, 185 (1983). We note that the right to contest the validity

of a will is purely statutory, and thus it must be exercised in the manner and within the time

prescribed by the Probate Act. In re Estate of Mohr, 357 Ill. App. 3d at 1013.

       Although in the instant case the petition to contest the validity of the will was filed on

the last day of the six-month time limit, it was not filed in the proper proceeding, that is, the

proceeding for the administration of the testator's estate. Nevertheless, while the time for

filing a will contest is jurisdictional, filing it in the statutorily designated division of the

circuit court is not a jurisdictional prerequisite. In re Estate of Olsen, 120 Ill. App. 3d 744,

746 (1983). The timely filing of a petition to contest the admission of a will to probate in the


                                                3
wrong division of the circuit court is a procedural defect, not a jurisdictional defect. In re

Estate of Olsen, 120 Ill. App. 3d at 747. Thus, it is curable. See In re Estate of Olsen, 120

Ill. App. 3d at 747.

       In In re Estate of Olsen, 120 Ill. App. 3d at 747, the petitioners timely filed a petition

contesting the admission of a will to probate, but they filed it in the chancery division of the

circuit court instead of in the proceeding in the probate division where the estate was being

administered. The executor moved to dismiss the petition, and the circuit court denied the

motion, instead transferring the petition from chancery to the probate proceeding after the

expiration of the six-month period. The executor appealed. The appellate court affirmed the

decision of the circuit court, holding that where a cause is filed in the wrong division of the

circuit court, the appropriate remedy for the misfiling is to transfer the matter to the proper

division, rather than to dismiss the suit. In re Estate of Olsen, 120 Ill. App. 3d at 747. The

court held that because the circuit court had acquired jurisdiction over the will contest upon

the timely filing of the petition, the matter could be transferred to the proper proceeding in

that court in the exercise of the court's jurisdiction. In re Estate of Olsen, 120 Ill. App. 3d

at 747-48. Where the executor had not asserted that any prejudice would accrue to the estate

or the beneficiaries under the will if the petition contesting the will was transferred to the

correct proceeding, the circuit court did not abuse its discretion in so transferring it, even

seven months after the expiration of the six-month period within which it should have

originally been filed there. In re Estate of Olsen, 120 Ill. App. 3d at 748.

         Similarly, in the case at bar the circuit court was not deprived of jurisdiction over

the petition to contest the admission of the will to probate by virtue of its having been filed

in the chancery division rather than in the pending probate proceeding. Nevertheless, the

circuit court held as follows: "[I]t is not enough to merely commence the action within the

limitation period; one must also effect service within that time period. If this were not the


                                               4
case, the will contest could be filed and never acted upon because the parties had no notice

of the cause of action." Accordingly, the circuit court dismissed the petition.

       We note that the plain language of the statute does not require that service be effected

within the six-month time period. Indeed, the statute sets no time limit for the service of the

petition, but only for the filing of the petition. As the court stated in In re Estate of Mohr,

357 Ill. App. 3d at 1014, where a statute is clear and unambiguous, a circuit court should not

restrict or enlarge its meaning or rewrite it to make it consistent with the court's idea of

orderliness and public policy. While section 8-1 of the Probate Act sets forth a time

limitation for the filing of a petition to contest the validity of a will, it does not set forth any

time limitation for providing notice of that petition to the executor.

       Furthermore, it has been held that the failure to include necessary parties, including

executors, as defendants to an action to contest the validity of a will does not deprive the

circuit court of jurisdiction to hear an otherwise properly filed will contest petition. In

Stephens v. Collison, 249 Ill. 225, 236 (1911), it was held, "If the jurisdiction conferred is

invoked by filing the bill within the time limited, the bill must be entertained, and the failure

to make a necessary party a defendant to the bill within [the time limit] is not a failure to

invoke the jurisdiction within [the time limit]." See also Fleshner v. Copeland, 13 Ill. 2d 72

(1958). In Nupnau v. Hink, 33 Ill. 2d 285, 288 (1965), it was held, "By the express and

unqualified words of the statute itself jurisdiction is invoked when a 'complaint' is 'filed'

within the statutory period." Accordingly, the failure to join necessary parties did not deprive

the circuit court of jurisdiction over the timely filed complaint to contest the validity of a

will. In In re Estate of Olsen, 120 Ill. App. 3d at 747, the appellate court held that because

the circuit court had acquired jurisdiction over the will contest upon the timely filing of the

petition, omitted necessary parties could be joined at any time prior to a final judgment.

       Finally, in In re Estate of Spaits, 104 Ill. 2d 431 (1984), the supreme court


                                                 5
unequivocally held that the joinder of the executor within the six-month time limit is not

jurisdictional. The court stated, "Had the General Assembly intended that the circuit court's

exercise of jurisdiction require that all necessary parties be joined prior to the expiration of

the six-month period, it would have been a simple matter to so state." In re Estate of Spaits,

104 Ill. 2d at 437. Because the failure to join the executor as a party defendant to a will

contest action does not deprive the circuit court of jurisdiction to hear the matter, neither can

the failure to serve the executor within the six-month time limit deprive the circuit court of

jurisdiction.

       Finally, we point out that the executor's reliance on In re Estate of Worrell, 92 Ill. 2d

412 (1982), is misplaced. That case involved the filing of claims against the estate, which

is governed by statutory provisions different from those applicable to the case at bar.

       For the foregoing reasons, the order of the circuit court of Washington County

dismissing the petition to contest the will of Fred W. Howell is hereby reversed, and this

cause is remanded to the circuit court for further proceedings not inconsistent with this order.



       Reversed and remanded.



       GOLDENHERSH and CHAPMAN, JJ., concur.




                                               6
                                       NO. 5-06-0224

                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      In re ESTATE OF FRED W. HOWELL,         ) Appeal from the Circuit Court of
      Deceased                                ) Washington County.
                                              )
      (Tina Quick and Stephen A. Quick,       ) No. 05-CH-35
      Petitioners-Appellants, v. Danny Thomas )
      Howell, Executor, Respondent-Appellee). ) Honorable Dennis G. Hatch,
                                              ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        April 26, 2007
___________________________________________________________________________________

Justices:         Honorable Thomas M. Welch, P.J.

                 Honorable Richard P. Goldenhersh, J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
___________________________________________________________________________________

Attorney         Henry P. Villani, Villani & Villani, 320 South 11th Street, P.O. Box 1593,
for              Mt. Vernon, IL 62864
Appellants
___________________________________________________________________________________

Attorney         Jennifer W. Price, Wham & Wham, 212 E. Broadway, P.O. Box 549, Centralia, IL
for              62801
Appellee
___________________________________________________________________________________
