Adelman v. Israel

Heirs and assigns appeal from an order of the probate division of the circuit court admitting a copy of decedent’s last will to *771probate. After the appeal was filed the heirs and assigns filed a joint Motion For Summary Judgment. Proponent State of Israel also filed a Motion For Summary Judgment, which the court granted, and entered the will to probate. Heirs and assigns appeal to this court. Proponent moved to dismiss the appeal contending that the admission of a will to probate is not an appealable order. Section 472.160, RSMo 1986, provides, in pertinent part, “any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases: ... (14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.” (Emphasis added). Section 473.083, RSMo 1986, provides in pertinent part that “[a]ny contest of the validity of a probated will ... shall be heard before a circuit judge other than the judge of the probate division.” (Emphasis added).

Thus it is clear that the procedure for challenging the admission or rejection of a will to probate is by way of a will contest under § 473.083 and not by way of appeal. See Kinder v. Brune, 754 S.W.2d 946 (Mo.App. 1988).

Proponent’s Motion to Dismiss Appeal is granted and its request for damages for frivolous appeal is denied.