 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State5/24/2005
e SCRA was not applicable to the one-year limitations period contained in the North Carolina wrongful death statute, which the court noted was "materially different from that of most states." Id. We do not find the reasoning in McCoy persuasive in ruling on the issues now before us.
In McLaughlin v. McLaughlin , 46 A.2d 307, 309 (Md. 1946), the Maryland Court of Appeals held that 50 U.S.C. App. section 521, requiring that, prior to the entry of judgment, a plaintiff must file an affidavit stating whether or not the defendant is in the military service or stating that the plaintiff is unaware whether the defendant is in the military service, did not apply to the filing of a will. The court found that a will could be filed with the probate court without filing a "military affidavit" as to all of the next of kin because the filing of the will was not a judgment, action, or proceeding against the next of kin. Id. Later in the opinion, the McLaughlin court assumed that the tolling provisions of the SCRA were applicable to probate proceedings in general and, more specifically, that they were applicable to the one-year period of limitations upon a caveat after probate. Id. Similarly, in Case v. Case , 124 N.E.2d 856, 861 (Prob. Ct. Ohio 1955), the court held that ince the presentation of a will for probate is not an adversary proceeding, and since a surviving spouse or other next of kin . . . are not required to enter any appearance (as required in an adversary action) before a will can be admitted to probate in Ohio, the [Servicemembers'] Civil Relief Act as amended October 17, 1940, has no application to the proceedings to admit a will to probate in Ohio, and it, therefore, is unnecessary for the executor or anyone else to file the affidavit, appoint the attorney, or follow any other of the provisions of said . . . Act . . . as a condition precedent to the issuing of letters testamentary in the instant case.
We do not find either of these cases, both of which address the applicability of the military affidavit provisions of 50 U.S.C. App. section 521, persuasive on the issue of whether the tolling provisions apply to the time limitations for the filing of a petition for presentment of a will or an application for letters testamentary.
We also find no merit to Respondents' argument that application of the SCRA to the presentment of wills will lead to an absurd result because the statutes allow non-interested parties to present a will to probate. Respondent opines that interested individuals who have allowed the statute of limitations to run would simply have to engage a member of the military to present the will in order to circumvent the statute of limitations.
In making this argument, Respondent fails to take into account the fact that actual administration of an estate does not commence until the filing of an application for letters testamentary or letters of administration, which will only be granted to interested persons and which must be filed within a year of the death of the decedent. In re Estate of Croom , 107 S.W.3d 457, 463 (Mo. App. S.D. 2003);Johnson , 9 S.W.3d at 609. Thus only an interested party who is entitled to take advantage of the tolling provisions would be able to commence the administration of an estate more than one year after the death of the decedent. This result would appear to impose no greater burden on the probate system and the settlement of estates than the tolling of the statute of limitations for the filing of a will contest.
In short, we find that the tolling provisions of the Servicemembers' Civil Relief Act serve to toll the statute of limitations for the filing of a petition for presentment and an application for letters t
Page 1 2 3 4 5 6 7 8 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|