Slusher

Former Probate Code sections 370 1 and 380 2 provide separate procedural routes for contesting a will. Section 370 authorizes a contest before the will is admitted to probate; section 380 authorizes the contest after the will is admitted. In this appeal we conclude a contestant filing a will contest under section 370 may not continue on that preprobate track after a final order is entered admitting the will to probate. We decide, however, that this rule should not deprive the contestant here—who timely filed her preprobate contest under section 370—of the opportunity to *70 contest the will postprobate. Because the requisite allegations are virtually the same for petitions filed under either section, we hold the probate court should have affirmatively acted on the contestant’s request to treat the section 370 petition as a section 380 petition. Accordingly, we reverse the judgment of dismissal and instruct the court to rule on the remaining grounds of respondent’s demurrer.

Factual and Procedural Background

Thomas Horn died on February 14, 1988, survived by his daughter, contestant Julia K. Slusher, and eight grandchildren. Six grandchildren, including respondent Roxann…