Chapter
257
2007 -- S 0764 AS AMENDED
Enacted 07/03/07
A N A C T
RELATING
TO PROBATE PRACTICE AND PROCEDURE -- JUDICIAL REVIEW
Introduced
By: Senators Jabour, Connors, and McBurney
Date
Introduced: February 15, 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
shall 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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LC01980
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