COMMITTEE SUBSTITUTE

FOR

H. B. 2231
(By Delegates Williams, Carper, Phillips, H. White,

Rutledge and Harrison)

(Originating in the House Committee on the Judiciary)


[March 25, l993]


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 or establishment of a 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 of in equity will -- 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 complaint to impeach or establish the will, on whichbill complaint, if required 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 complaint 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 complaint shall be filed within two years one year from the date of such order of the county court commission. If no such bill complaint be filed within the time prescribed, the judgment or order shall be forever binding. Any bill complaint 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 a mentally incapacitated 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 such complaint within two years oneyear 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 this 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.