dissenting.
I respectfully dissent. As stated by Judge Neal in Willman v. Railing (1988), Ind.App., 529 N.E.2d 122, 124, trans. denied:
“A proceeding to contest the validity of an alleged will is purely statutory and can be brought and successfully maintained in the manner and within the limitations prescribed by statute, [citations omitted.] Failure to give the notice prescribed by statute leaves the trial court without jurisdiction over the proceeding.”
The provisions of IC 29-1-7-18 state:
“When an action is brought to contest the validity of any will as provided in this article, summons shall be served upon the defendants in the manner following: (1) If the defendant is a resident of the state of Indiana summons shall be served *1268on him by the sheriff as provided in IC 29-l-l-12(a).
(2) If the defendant is a nonresident of the state of Indiana notice shall be served on him as provided in IC 29-1-1-12(b).” (emphasis added.)
While a summons was issued to each defendant on August 26, 1988, the summonses were sent by certified mail rather than served by a sheriff as required under IC 29-1-7-18. As in Willman, the contestors in the present case failed to adhere to the statutory requirements regarding service, therefore the trial court did not obtain jurisdiction over the will contest. Id. at 124.
The contestors argue, however, that when summonses were issued by the sheriff on December 20 and 22, 1988, the trial court did obtain jurisdiction over the proceedings. I disagree. The summonses issued in December were issued six (6) months after Ralph Green’s will was offered for probate. Under IC 29-1-7-17 a will contest must be commenced within five (5) months after the will has been offered for probate.1 Interpreting a similar probate provision in force in 1901,2 the Indiana Supreme Court stated that “[t]he general rule that an action is commenced only when the complaint is filed, and process is issued thereon, applies to proceedings of this kind [probate] as well as to ordinary civil actions.”3 McGeath v. Starr (1901), 157 Ind., 320, 323, 61 N.E. 664, 665. In McGeath, the supreme court held that because the resisting party failed to issue adequate process within the three (3) year time period applicable, the resisting party was left without standing to pursue his claim. Id. at 324, 61 N.E. at 665. Similarly, because the contestors failed to issue summonses in accordance with the requirements stated in IC 29-1-7-18 until December of 1988, the trial court did not gain jurisdiction over the proceedings within the five (5) month period articulated in IC 29-1-7-17.
I believe the majority’s reliance upon Trial Rule 3 for their position totally disregards the strict statutory requirements relating to will contest actions and stretches T.R. 3 beyond the intendment of the trial rules which specifically provide in Trial Rule 1 that “[e]xcept as otherwise provided” the rules govern the practice and procedure in the courts of this state. Will contest actions, in my view, are within the “except as otherwise provided” category. If that is to be changed, it should be done by legislation. Therefore, it is my opinion that the trial court did not err in dismissing the contestors’ complaint.4
. At the time of the will contest herein, IC 29-1-7-17 read as follows:
Any interested person may contest the validity of any will or resist the probate thereof, at any time within five (5) months after the same has been offered for probate, by filing in the court having jurisdiction of the probate of the decedent's will his allegations in writing verified by affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress, or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.
This statute has since been amended; however the changes made are not pertinent to our opinion.
. The 1901 statute read as follows:
Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the Circuit Court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.
Ind.Code Ann. § 2596 (Horner's 1901).
. Ind.Trial Rule 3 presently states that a civil action is commenced by filing a complaint with the court and makes no reference to the necessity of service of process. However, the trial rules relating to service are specifically inapplicable to probate proceedings. See Ind.Trial Rule 4.17.
. Given that rule that summonses must be issued within the five (5) month period articulated in IC 29-1-7-17 and not necessarily served within that time period, the contestors' due process arguments are specious.