Are you contesting a will in West Palm Beach? Are there a lot of contested heirs? Did you know you have to personally serve all necessary parties? You may want to see what the Seventh District Ohio Court of Appeals had to say in their recent opinion In re Britt.
Personal Service
- In order to commence a lawsuit you have to serve the person or persons you want to sue.
- Each state has its own rules on personal service.
- Some states allow service by mail others do not.
- Most states will allow a party to serve via publication if they cannot personally serve.
- Do you know where to find the Florida rules of personal and publication service?
- Do probate courts and civil courts have difference rules for service?
Necessary Parties
- In a lawsuit there are usually two types of parties, necessary and non-necessary.
- Can you guess what happens when you fail to join a necessary party?
- The odds are you are going to have your case dismissed if you cannot perfect service on a necessary party.
- It depends on each state’s rules.
- Don’t believe me? Check out what happened in a case out of Ohio.
In re Britt
- The plaintiffs were appealing a dismissal of there will contest to the Ohio Court of Appeals.
- The decedent died in 2012 leaving a wife and four children by a different mother. There were also four stepchildren that were the children of decedent’s wife.
- The wife submitted a will to probate that the children claim was not the true will. They claim the father lacked testamentary capacity to make the will five years before he died. They also filed the prenuptial agreement signed by the wife which they claim limited the wife’s rights.
- Sounds like an airtight case right?
- Remember the four stepchildren from earlier? Turns out the decedent’s children were unable to perfect service on them and they were deemed necessary parties by the court.
- The case was dismissed because the court felt it could not render a decision without infringing on the rights of parties that were not on notice, do you agree?