Senate Bill No. 401
(By Senators Helmick and Ross)
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[Introduced March 18, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections eleven, twelve and thirteen,
article five, chapter forty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the impeachment of a probated will; and the
probate of a foreign will.
Be it enacted by the Legislature of West Virginia:
That sections eleven, twelve and thirteen, article five,
chapter forty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
§41-5-11. Impeachment or establishment in equity -- By person
who was not party to prior proceeding; trial by jury.
After a judgment or order entered as aforesaid in a
proceeding for probate ex parte, any person interested who was
not a party to the proceeding, or any person who was not a party
to a proceeding for probate in solemn form, may proceed by bill
in equity to impeach or establish the will, on which bill, ifrequired by any party, a trial by jury shall be ordered, to
ascertain whether any, and if any, how much, of what was so
offered for probate, be the will of the decedent. The court may
require all other testamentary papers of the decedent to be
produced, and the inquiry shall then be which one of all, or how
much of any, of the testamentary papers is the will of the
decedent. If the judgment or order was entered by the circuit
court on appeal from the county court commission, such bill shall
be filed within two years one year from the date thereof, and if
the judgment or order was entered by the county court commission
and there was no appeal therefrom, such bill shall be filed
within two years one year from the date of such order of the
county court commission. If no such bill be filed within the
time prescribed, the judgment or order shall be forever binding.
Any bill filed under this section shall be in the circuit court
of the county wherein probate of the will was allowed or denied.
§41-5-12. Impeachment or establishment in court -- By person
under disability or nonresident.
Notwithstanding the two preceding sections, any person
interested who, at the time of the judgment or order is under the
age of eighteen years, or is a convict or an insane person, may
file a complaint to impeach or establish the will, within one
year after he becomes of age, or other disability ceases; and any
person interested who, at that time, resided out of the state, or
was proceeded against by publication, may, unless he actually
appeared as a party or was personally summoned, file suchcomplaint within two years one year after the entry of such
judgment or order.
§41-5-13. Probate of foreign will.
Where a will relative to estate within this state has been
proved without the same, an authenticated copy thereof and the
certificate of probate thereof, may be offered for probate in
this state. When such copy is so offered, the county court
commission, or the clerk thereof in the vacation of the court
commission, to which or to whom it is offered, shall presume, in
the absence of evidence to the contrary, that the will was duly
executed and admitted to probate as a will of personalty in the
state or country of the testator's domicile, and shall admit such
copy to probate as a will of personalty in the state; and if it
appears from such copy that the will was proved in the foreign
court of probate to have been so executed as to be a valid will
of land in this state by the laws thereof, such copy may be
admitted to probate as a will of real estate. But any person
interested, may, within two years one year from the time such
authenticated copy is admitted to record, upon reasonable notice
to the parties interested, have the order admitting the same set
aside, upon due and satisfactory proof that such authenticated
copy was not a true copy of such will, or that the probate of
such will has been set aside by the court by which it was
admitted to probate, or that such probate was improperly made.
NOTE: The purpose of this bill is to reduce uncertainty byaccelerating the settling of estates by shortening the time limit
of an appropriate person to impeach a probated will or challenge
the probation of a foreign will from two years to one year.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.