2014 -- H 8369

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LC006036

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PROBATE COURT - APPEALS

     

     Introduced By: Representative Cale P.Keable

     Date Introduced: June 20, 2014

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 33-23-1 of the General Laws in Chapter 33-23 entitled "Judicial

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Review of Probate Court Orders and Decisions" is hereby amended to read as follows:

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     33-23-1. Filing of claim of appeal, record, and reasons. -- (a) Any person aggrieved by

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an order or decree of a probate court (hereinafter "appellant"), may, unless provisions be made to

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the contrary, appeal to the superior court for the county in which the probate court is established,

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by taking the following procedure:

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      (1) Within twenty (20) days after execution of the order or decree by the probate judge,

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the appellant shall file in the office of the clerk of the probate court a claim of appeal to the

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superior court and a request for a certified copy of the claim and the record of the proceedings

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appealed from, and shall pay the clerk his or her fees therefor.

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      (2) Within thirty (30) days after the entry of the order or decree, the appellant shall file in

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the superior court a certified copy of the claim and record and the reasons of appeal specifically

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stated, to which reasons the appellant shall be restricted, unless, for cause shown, and with or

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without terms, the superior court shall allow amendments and additions thereto.

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      (3) The appellant shall file with the probate clerk an affidavit in proof of the filing and

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docketing of the probate appeal pursuant to the time deadlines set forth in section ยง33-23-1(a)(2).

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      (b) For purposes of this chapter, the "record of the proceedings appealed from" shall

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include copies of documents filed with the probate court and full exhibits entered into evidence

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by the probate court as certified by the probate clerk which are relevant to the claim of appeal and

 

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the transcript (if any) of all relevant evidentiary probate court proceedings. The appellant and the

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appointed fiduciary may stipulate to the content of the record of proceedings from the probate

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clerk and may stipulate to the supplementation of the record of proceedings in the superior court.

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Without such stipulation, the appellant must timely file all relevant filings, exhibits and

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transcripts with the reasons of appeal in the superior court.

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      (c) If the appellant ordered the transcript or tape recording as the case may be from the

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probate clerk within the twenty (20) day deadline of subsection (a)(1) and the transcript is

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unavailable for filing within the thirty (30) day deadline of subsection (a)(2), the superior court on

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appellant's motion shall grant an extension of such additional time reasonably necessary to

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complete the record.

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      (d) (b) An appeal under this chapter is not an appeal on error but is to be heard de novo

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in the superior court. The record of proceedings, including the certified documents and the

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transcript (if any) from the probate proceedings, may be introduced in the superior court without

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further authentication. The findings of fact and/or decisions of the probate court may be given as

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much weight and deference as the superior court deems appropriate, however, the superior court

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shall not be bound by any such findings or decisions. Nothing herein shall preclude a witness who

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testified at the probate court proceeding from testifying at the superior court hearing, however,

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the transcript of such probate court testimony may be used for any evidentiary purpose, consistent

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with the Rhode Island rules of evidence.

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      (e) (c) The deadline of subsections (a)(1) and (a)(2) of this chapter are jurisdictional and

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may not be extended by either the probate court or the superior court, except for purposes of

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extending the time to file the transcript under subsection (c).

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      (f) (d) Nothing in this chapter shall preclude interested parties in a probate proceeding

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from stipulating to a probate appeal from the probate court to the superior court and, toward that

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end, to build a record by agreed statement of facts and otherwise, to fashion on a form of order or

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decree to preserve or frame issues as the parties desire, and to preserve the status quo ante

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pending appeal through custodianship of assets or otherwise. Such a stipulated probate appeal

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shall be governed by, and be subject to, the procedural requirements of this chapter.

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      (g) (e) The executor, administrator, guardian, or other fiduciary, pending a probate

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appeal, shall annually, or more often as requested by the probate court, file a written report of the

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status of the appeal.

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      (h) (f) The filing fees payable to the superior court clerk for reasons of appeal in a

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probate appeal shall be the same as those established from time to time for the filing of a

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complaint in a civil action.

 

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      (i) The fee charged by the probate clerk for the record of proceedings shall include the

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reasonable copying costs, transcription costs, (if any), and the costs of transmitting the record.

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The probate clerk need not transmit the record unless and until all costs therefor are paid in full.

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      (j) Whenever a transcript or the production of a transcript is requested or referred to in

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title 33, the moving party shall, pursuant to the provisions of section 33-22-19.1, be responsible

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for the production of any payment for said transcript, and nothing contained herein shall require

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the probate court or the probate clerk to make arrangements for or advance the costs of the same.

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     SECTION 2. Section 33-23-12 of the General Laws in Chapter 33-23 entitled "Judicial

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Review of Probate Court Orders and Decisions" is hereby repealed.

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     33-23-12. Failure to perfect or prosecute appeal. -- If an appellant, having timely filed

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his or her reasons for appeal, fails to perfect his or her appeal by filing in the superior court all

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relevant filings, exhibits and transcripts constituting the certified record of the probate court

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proceedings within the time allowed by law the superior court, on motion of any person

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interested, shall affirm the decree or order appealed from or make such other order or decree as

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justice may require.

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE COURT - APPEALS

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     This act would remove the existing probate court appellate requirement that an appellant

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file with the superior court all relevant probate court filings, exhibits and transcripts.

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     This act would take effect upon passage.

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