2014 -- S 2569
Enacted 07/01/14
A N A C T
RELATING TO PROBATE COURT - APPEALS
Introduced By: Senators Lombardi, and McCaffrey
Date Introduced: February 27, 2014
It is enacted by the General Assembly as follows:
SECTION 1. Section 33-23-1 of the General Laws in Chapter 33-23 entitled "Judicial Review of Probate Court Orders and Decisions" is 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 all relevant evidentiary probate court proceedings. 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)
(b) An appeal under this chapter is not
an appeal on error but is to be heard de novo in the superior court. 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. 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)
(c) 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)
(d) 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)
(e) 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)
(f) 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.
SECTION 2. Section 33-23-12 of the General Laws in Chapter 33-23 entitled "Judicial Review of Probate Court Orders and Decisions" is hereby repealed.
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 the superior court, on motion of any person interested,
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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LC003902
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