2015 -- S 0594

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LC000911

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE

     

     Introduced By: Senators Lombardi, Conley, and Lynch

     Date Introduced: March 03, 2015

     Referred To: Senate 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 the reasons of appeal specifically stated, to

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which reasons the appellant shall be restricted, unless, for cause shown, and with or without

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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 ยง 33-23-1(a)(2).

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

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

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

 

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

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

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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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      (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.

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

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

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

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

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of the appeal.

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

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

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civil action.

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     SECTION 2. 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 PRACTICE AND PROCEDURE

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     This act would remove the requirement that any person aggrieved by an order or decree

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of a probate court who wishes to appeal must file with the clerk a request for a certified copy of

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the record of the procedures appealed from.

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     This act would take effect upon passage.

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