Chapter 158

2007 -- H 5648 AS AMENDED

Enacted 06/30/07

 

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- JUDICIAL REVIEW

          

     Introduced By: Representatives Jackson, Lewiss, and Scott

     Date Introduced: February 28, 2007

 

It is enacted by the General Assembly as follows:

 

     SECTION 1. Sections 33-22-14, 33-22-19.1, 33-22-19.2, 33-22-26 and 33-22-27 of the

General Laws in Chapter 33-22 entitled "Practice in Probate Courts" are hereby amended to read

as follows:

 

     33-22-14. Findings of court as to notice. -- If it shall appear to the court, before

proceeding, that notice has been given to all known parties interested, by the clerk, upon

application to him or her made, in accordance with the foregoing provisions, and in a manner

satisfactory to the court, it shall be sufficient to warrant proceeding; and its findings as to notice,

unless appealed from, shall be conclusive. Notice by telephone, facsimile, e-mail or other

electronic transmission may supplement, but shall not discharge any party's obligation under this

chapter to give notice by service or mail.

 

     33-22-19.1. Recording of all probate court proceedings. Record of probate court

proceedings. -- (a) At the request of any party thereto, or at the request of the probate judge

presiding thereat, any proceedings held in probate court shall be recorded by the probate clerk, by

either electronic or stenographic means (the means utilized to be determined by the probate

clerk), which means are reasonably designed to produce a true and accurate verbatim

transcription of such proceedings.

      (b) This section shall not be construed to prohibit a party from bringing in a

stenographer, at the party's own expense, to a probate court proceeding. privately recording or

transcribing any probate court proceeding at his or her own expense, which private recording or

transcript shall not be deemed part of the record of proceedings unless admitted by the probate

court into evidence as an exhibit, ordered by the probate court or stipulated to by the parties.

Nothing contained herein shall preclude a party from purchasing a transcript from the

stenographer. This section shall not be construed as requiring a party to record or transcribe the

proceeding in order to take an appeal to superior court.

      (c) No city or town shall be obligated to assist a party to produce a written or typed

transcription from any proceeding other than in instances where an appeal is claimed pursuant to

the provisions of section 33-23-1 et seq. In the event such an appeal is claimed, the appellant shall

be responsible for all transcription costs. If the city or town utilizes electronic means to record

proceedings, the probate clerk shall, upon request, assist any party to such appeal in producing a

true and accurate verbatim written transcript of such proceeding. Such assistance shall consist of

providing the party with suitable space within the building within which the probate clerk does

business, in which a stenographer, brought in at the parties' sole expense, may produce a written

transcription. Provided further, that the party requesting the transcript shall be charged for all out

of pocket costs of the probate clerk incurred in preparing the transcript. provide the appellant's

stenographer with accommodations to transcribe the original tape recording on site or provide a

true copy thereof to permit transcription off site. Physical possession of the original recording or

transcription notes shall remain with the probate court unless otherwise ordered by the superior

court. The written transcript and electronic recording shall be deemed a public record.

 

     33-22-19.2. Hearings in probate courts -- Evidence Hearings in probate courts

Evidence and discovery. -- (a) In uncontested matters and/or matters on waiver, the Rhode

Island Rules of Evidence adopted by the supreme court, may be used as a guide, but need not be

followed, for the omission admission or exclusion of evidence.

      (b) In all contested matters, the Rhode Island Rules of Evidence shall be applied;

provided, however, that this section shall not prohibit parties from stipulating or waiving the

requirements of the Rules of Evidence as to any particular matter.

     (c) In all contested matters, the Rhode Island Superior Court Rules of Civil Procedure

may be applied. The probate court may limit the scope of discovery to what is relevant to the

contested issue before it and may shorten or enlarge deadlines for compliance as the

circumstances warrant.

     (d) In all matters, the probate court shall have the jurisdiction and discretion to compel

discovery, award costs and fees, impose sanctions and otherwise to enforce its orders consistent

with Rule 37 of the Rhode Island Superior Court Rules of Civil Procedure.

 

     33-22-26. Costs in contested and appealed cases -- Persons deemed parties of record.

Cost and fees in contested and appealed cases Persons deemed parties of record. -- In

cases contested before a probate court or on appeal from the probate court, costs and reasonable

attorneys' fees in the discretion of the court may be awarded to either party to be paid by the

other, or to either or both parties to be paid out of the estate which is the subject of the

controversy, as justice may require. Any person petitioning or objecting to a petition shall be

deemed to be a party of record in the matter in which he or she appears.

 

     33-22-27. Execution for costs. Execution for cost and fees. -- When costs and/or fees

are awarded to be paid by one party to the other pursuant to section 33-22-26 , the probate court

may issue execution for costs in like manner as a court of common law.

 

     SECTION 2. Sections 33-23-1, 33-23-2, 33-23-3, 33-23-11 and 33-23-12 of the General

Laws in Chapter 33-23 entitled "Judicial Review of Probate Court Orders and Decisions" are

hereby amended to read as follows:

 

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

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

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

by taking the following procedure:

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

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

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

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

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

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

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

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

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

docketing of the probate appeal pursuant to the time deadlines set forth in section 33-23-1(a)(2).

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

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

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

the transcript (if any) of the relevant all relevant evidentiary probate court proceedings. By

stipulation of all parties who entered an appearance in the probate court proceedings, the record

may be limited or shortened. Any party unreasonably refusing to limit or shorten the record may

be taxed by the probate court for the additional cost. The superior court may require or permit

subsequent corrections or additions to the record. The appellant and the appointed fiduciary may

stipulate to the content of the record of proceedings from the probate clerk and may stipulate to

the supplementation of the record of proceedings in the superior court. Without such stipulation,

the appellant must timely file all relevant filings, exhibits and transcripts with the reasons of

appeal in the superior court.

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

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

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

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

complete the record.

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

the superior court. By agreement of the parties, the The record of proceedings, including the

certified documents and the transcript (if any) from the probate proceedings, may be introduced

in the superior court without further authentication. If the record of proceedings is introduced in

the foregoing manner, the The findings of fact and/or decisions of the probate court may be given

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

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

witness who testified at the probate court proceeding from testifying at the superior court hearing,

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

consistent with the Rhode Island rules of evidence.

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

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

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

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

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

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

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

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

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

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

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

of the appeal.

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

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

civil action.

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

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

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

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

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

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

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

 

     33-23-2. Suspension of order or decree pending appeal. -- If an appeal is claimed from

an order or decree of a probate court, the operation of the order or decree shall be suspended,

except as otherwise provided in this chapter, until the appeal is dismissed or discontinued, or the

order or decree shall be finally affirmed.

 

     33-23-3. Effect of appeal from granting of letters. -- If an appeal is claimed from a

decree of a probate court granting letters testamentary, of administration, of administration with

the will annexed, or of guardianship, the executor, administrator, administrator with the will

annexed, or guardian, on giving bond as by law required, shall have power to file an inventory

and to collect, receive, and take possession of all the rights, credits, and estates of the testator,

intestate, or ward, as if no appeal had been claimed. All claims against the estate of the deceased

or ward shall be filed within the time prescribed by law, and the executor, administrator, or

guardian may, under the direction of the probate court, do such acts as the law requires

concerning claims; and all limitations in regard to claims shall apply as if no appeal had been

claimed.

 

     33-23-11. Failure to enter appeal claimed. Failure to file appeal claimed. -- If the

appellant fails to enter file his or her reasons of appeal in the superior court within the time

allowed by section 33-23-1(a)(2), the probate court from which the appeal was taken may shall,

upon petition of any person interested, and upon such notice to the appellant as the court shall

order, affirm the order or decree appealed from and further proceed as if no claim of appeal had

been filed; and in that case the probate court may award double costs against the appellant.

 

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

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

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

proceedings within the time allowed by law or by the superior court, the superior court, on motion

of any person interested, may shall affirm the decree or order appealed from or make such other

order or decree as justice may require.

 

     SECTION 3. This act shall take effect upon passage.

     

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LC00206

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