Necessary parties to will contest
In every lawsuit, there are necessary parties. For instance, a husband cannot file for divorce without making his wife a party and serving her with citation. The same may be true in will contest but there is a difference between states as to who constitutes a necessary party.
In Rem
In Texas, will contest are in rem, while in other states, will contest or in personam. In rem means about the thing while in personam means about the person. In rem means that a lawsuit or other legal action is directed at property rather than at a person. In a will contest, the legal action is about the property of the decedent rather than about the decedent himself. Because Texas will contest are in rem, such proceedings are binding on all persons interested in the estate of the decedent whether or not they have actual notice of the proceeding and even though they are not formally joined as “parties” to the action. This means that you do not have to serve any particular person, just file your will contest where the will is pending and the world is put on notice.
In Personam
In other states, will contest or in personam and if you don’t add the necessary parties, your suit may be dismissed. In a 2014 Ohio case, a will contest was dismissed and the contestants lost their claim because they did not add necessary parties within the statute of limitations for will contest. Once the statute of limitations had run, the proponent of the will ask that the case be dismissed because the contestant did not add necessary parties. The contestant tried to file a motion asking for an extension of time to add parties but the court denied the motion and dismissed the will contest.
