concurring in result.
For the reasons following, I can do no more than concur in the result reached by the principal opinion.
The principal opinion overrules Haas v. Haas, 504 S.W.2d 44 (Mo.1973), concluding that the failure to give actual notice as required by section 473.033, RSMo 1994, tolls the running of the statute of limitations for actions to contest a will, section 473.083.1, RSMo 1994, at least until the probate estate is closed. I find no fault in Haas. Indeed, Ham acknowledges what the principal opinion ignores: The right to contest a will is purely statutory. Section 473.083.1 admits no exceptions to its time bar. After the expiration of the six months within which a will contestant may bring an action, the trial court is without statutory authority to proceed under the statute. Finis.
In my view, section 473.083.1 is a legislative statement of the policy that expeditious resolution of the affairs of a decedent is both a legitimate and compelling interest of the state. That conclusion undoubtedly proceeds from the unfortunately anachronistic notion that heirs whose interests in the estate are as familial as they are fiscal would be aware of the death of the decedent and that actual notice would be redundant. But families are not what they used to be. Lucre is.
It is, therefore, not the “interlocking” nature of the probate code that compels the result the principal opinion reaches. It is the reading of the due process clause found in Tulsa Professional Collection Serv. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). But for Pope, the state’s interests in finality in probate matters would end the inquiry despite appellant’s Fourteenth Amendment claim. Cf. Cool v. Reed, 717 S.W.2d 518, 520 (Mo.banc 1986); Estate of Busch v. Ferrell-Duncan Clinic, Inc., 700 S.W.2d 86, 88-9 (Mo.banc 1985); Haas; 504 S.W.2d at 44.
Where state action threatens property rights, due process requires notice to affected persons “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). A cause of action — here a will contest — is a property right protected by the Fourteenth Amendment. Id. at 313, 70 S.Ct. at 656-57.
Prior to Pope, most courts that had considered the issue had held that a statute of limitations in a probate matter was self-enforcing. See, e.g., Estate of Busch, 700 S.W.2d at 88-89. They reasoned that a self-enforcing statute of limitations does not implicate state action and that the due process clause of the Fourteenth Amendment does not apply. On this basis, these courts routinely rejected due process attacks against probate statutes of limitations on that basis. William B. Tanner Co. v. Estate of Fessler, 100 Wis.2d 437, 302 N.W.2d 414 (1981); Chalaby v. Driskell, 237 Or. 245, 390 P.2d 632 (1964); New York Merchandise Co. v. Stout, *77943 Wash.2d 825, 264 P.2d 863 (1953); Gibbs v. Estate of Dolan, 146 Ill.App.3d 203, 100 Ill.Dec. 61, 496 N.E.2d 1126 (1986); Gano Farms, Inc. v. Estate of Kleweno, 2 Kan.App.2d 506, 582 P.2d 742 (1978); Contra, Continental Insurance Co. v. Moseley, 100 Nev. 337, 683 P.2d 20 (1984).
Pope changed the analysis and declared that where a probate court’s involvement in the running of the statute of limitations is “pervasive and substantial,” 485 U.S. at 487, 108 S.Ct. at 1346, state action is present and the Fourteenth Amendment applies. The critical issue, then, is whether Missouri’s probate scheme involves the court in such a pervasive and substantial way in the operation of the statute of limitations as to render it not self-enforcing.
In Pope, the Oklahoma probate statute of limitations did not rim until probate proceedings commenced in the probate court and the court appointed the executor or executrix. Moreover, the court issued a form order directing the executrix to notify creditors of the pendency of the probate proceedings. Pope concluded that the probate court’s “intimate” involvement in the process rendered the statute of limitations non-self-executing and applied the Fourteenth Amendment.
The Oklahoma probate scheme is not substantially different from Missouri’s. The will contest statute of limitations does not begin to run until the probate division admits the will to probate. §§ 473.065 and 473.083.1. The clerk of the probate division “shall cause to be published in some newspaper notice of the appointment of the personal representative.” § 473.033. The clerk is also required to send a copy of the published notice “by ordinary mail” to each heir or devisee named in the application for letters.” Id. Given the breadth of Pope’s language, these acts are sufficient to defeat a claim that section 473.083 is self-enforcing. State action is present. The due process clause applies.
There remains the question whether the due process clause entitles heirs to actual notice of the pendency of probate proceedings. The resolution of that inquiry turns on a calculation that attempts to balance the state’s interests in expeditious resolution of probate affairs against the heirs’ opportunity to exercise their statutorily permitted cause of action to challenge the will. Constitutionally sufficient notice is reasonable notice. Reasonable notice is notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity present their objections [to the will].” Mullane, 339 U.S. at 314, 70 S.Ct. at 657.
Pope holds that due process requires actual notice to persons having a claim against the estate. While one could reasonably argue that strangers to the decedent require a different kind of notice than the decedent’s family members, Pope’s language seems not to admit such an exception. “[T]he [personal representative] will often be, as is the ease here, a party with a beneficial interest in the estate. This could diminish [the personal representative’s] inclination to call attention to the potential expiration of a[n heir’s interests].” 485 U.S. at 489, 108 S.Ct. at 1347. Pope concludes that “[t]here is thus a substantial practical need for actual notice in this setting.” Id. Unlike the principal opinion, I find appellants, Allan and Lomax, are entitled to actual notice based on Pope and not on the “interlocking nature” of the Missouri Probate Code.
I do agree, however, with the principal opinion that potential heirs made aware of the death of the decedent by other means may not claim a lack of actual notice from the probate division as a basis for circumventing the section 473.083 statute of limitations. Therefore, as to appellant Bosworth, I concur in the result because he failed to allege he did not know of the administration of the estate.
I offer a final comment. The majority concludes that its holding extends only to will contest actions brought after the statute of limitations has expired and prior to the closing of the estate. While this is an eminently reasonable position, I do not believe that Pope permits it. As I read Pope, it conditions the running of the statute of limitations on the existence of actual notice. Absent actual notice, I do not believe this Court can read the due process clause to conclude that the estate is ever free from a challenge by *780non-notified, palm-up heirs who claim (straightfaced or not) that they did not know that their dear, departed and well-heeled relative left without so much as a testamentary good-bye.