Connecticut Bar Journal, Probate Court Rules of Procedure: New Rules for Hearings

October 24, 2013
By Carmine Perri

It was Heraclitus who said that you cannot step in the same river twice. This saying reminds us that change happens and that it is part of life. Since 2008, when Judge Paul Knierim was appointed as the Probate Court Administrator, the Probate Courts have experienced many changes. One recent change is the new Probate Court Rules of Procedure (herein “Rules of Procedure”) which became effective July 1, 2013. This article will focus on one section of the Rules of Procedure and will highlight some of the issues practitioners may encounter as a result of the new Rules.

I. THE PROBATE COURT: A BRIEF HISTORICAL PERSPECTIVE.

Separate probate courts came into existence only after probate jurisdiction was first exercised by the General Court and then by the County Courts.¹ Gayle Wilhelm, Esq. & Professor Ralph Folsom, Probate Jurisdiction and Procedure in Connecticut,§2:2 (2d ed., West Group 2010).

Unlike the Superior Court, which is a court of general jurisdiction, “our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute.” Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).

The statute regarding rules for probate practice and procedure, which was enacted in 1967, was Connecticut General Statute (herein “C.G.S.”) §45-4f; C.G.S. §45-4f was transferred to C.G.S. §45a-78 in 1991. By virtue of Public Act 13-81, Section 1, C.G.S. §45a-78 now states:

1. The Probate Court Administrator shall, from time to time, recommend to the judges of the Supreme Court, for adoption and promulgation pursuant to the provisions of section 51-14, uniform rules for practice and procedure in the Probate Courts. Any rules of procedure so adopted and promulgated shall be mandatory upon all Probate Courts. To assist the Probate Court Administrator in formulating such recommendations, the Probate Court Administrator shall meet with the Probate Assembly at least annually, and may meet with members of the bar of this state and with the general public.
2. The Probate Court Administrator shall, from time to time, publish the rules of procedure for the Probate Courts. The Probate Court Administrator may pay the expenses of publication from the fund established under section 45a-82 and shall sell the book of Probate Court rules of procedure, at a price determined by the Probate Court Administrator. The proceeds from the sales shall be added to and shall become a part of said fund. Conn. Gen. Stat. §45a-78 (2013).

The first edition of the Connecticut Probate Practice Book was published in May 1974. Prob. Ct. Rules of Proc., Preface (2013). The 2000 edition of the Connecticut Probate Practice Book, as an example, contained the following eight rules for probate court practice and procedure:

1. Notice on Application for Probate Proceedings and for Presentation of Claims;
2. Probate Bonds;
3. Conservators;
4. Guardians ad Litem;
5. Guardians;
6. Accounts;
7. Transfers of Contested Petitions for Termination of Parental Rights from Courts of Probate to the Superior Courts; and
8. Transfers of Contested Petitions for Removal of Parent as Guardian from Courts of Probate to Superior Court for Juvenile Matters.

Gayle Wilhelm, Esq. & Professor Ralph Folsom, Probate Jurisdiction and Procedure in Connecticut, §3:2 (2d ed., West Group 2010).

As time went on, like that perpetually changing river, day to day questions that attorneys, judges, and clerks confronted were left unanswered by the Connecticut Probate Practice Book, which had not been comprehensively rewritten since May 1974. Additionally, practitioners who handled matters in more than one probate court called for a more uniform application of rules, especially regarding discovery and contested hearings.

Faced with a challenge, Judge Knierim, pursuant to C.G.S. §45a-78, seized the opportunity, convened a Probate Court Rules Advisory Committee, and sought to comprehensively rewrite the Rules of Procedure.²

II. THE NEW RULES FOR HEARINGS.

It was not that long ago that some probate courts, and the procedure employed within them, resembled a family meeting during dinner as opposed to a court of law.

In Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969), the Court, again not that long ago, stated, “the procedure in our probate courts is informal, strict rules of evidence are seldom followed, many of the probate judges are laymen, and no transcript or other record of any testimony presented is available.” Id. at 293. The Probate Courts have made much progress since the Court’s statements in 1969.

With the promulgation of the Rules of Procedure, the Rules have been transformed from eight rules to fifty rules divided up into the following four categories: (I) General Provisions, (II) Rules for All Case Types, (III) Rules for Specific Case Types, and (IV) Rules for Hearings.

The following four sub-sections of this article will focus on specific Rules for Hearings.

A. Conferences Before the Court

The Rules of Procedure provide for two types of conferences before the court, status conferences, pursuant to Rules of Procedure §60.1, and hearing management conferences, pursuant to Rules of Procedure §60.2. Whether a matter is contested determines which conference will be conducted. A contested matter is one where facts are in dispute.

Rules of Procedure §60.1 permits either the court or a party to request a status conference, in an uncontested matter, to address any issue that facilitates the progress of the matter. A status conference can be convened, as one example, when a fiduciary has not reported to the court for a period of time; during the status conference, the court can set a deadline for the filing of a final accounting or financial report. Absent an exception provided in Rule 69, the court shall not decide any issues of law or fact during or at the conclusion of the status conference.

A hearing management conference, pursuant to Rules of Procedure §60.2, facilitates the movement of the matter towards trial. The hearing management conference will be conducted much like a trial management conference is conducted in the Superior Court; not coincidentally, Rules of Procedure §60.2 resembles Superior Court Trial Management Orders³. Of particular note, which is discussed in greater detail in the next sub-section, during the hearing management conference, pursuant to Rules of Procedure §61.1(a), a party shall obtain permission from the court to conduct discovery for all matters except the taking of depositions which is specifically provided in C.G.S. §52-148a.

Given the depth and breadth of issues covered in the hearing management conference, counsel is cautioned to be prepared for a substantive discussion of the matter since Rules of Procedure §60.2(b) permits the court, at the conclusion of the conference, to issue an order concerning any of the issues addressed in the conference. Although counsel can, at least conceivably, request a second hearing management conference sometime after the first hearing management conference, the court may not grant the request for a second conference (and the client may not be pleased to incur the expense of an additional conference).

B. Discovery in Contested Matters

As stated above, absent the taking of a deposition pursuant to C.G.S. §52-148a, a party must obtain permission from the court before seeking discovery from another party. For those practitioners that also practice in the Superior Court, this rule is clearly a deviation from how discovery is conducted in Superior Court. Rules of Procedure §61.2(a) requires a party to submit a summary to the court in support of the party’s request for permission to conduct discovery. Provided the court gives a party permission to conductdiscovery, Rules of Procedure §61.1 permits the issuance of interrogatories, requests for production, and requests for admission. The standard the court applies when determining whether to grant a party’s permission to conduct discovery is “if it finds that the requested discovery appears reasonably calculated to lead to admissible evidence and would not be unduly burdensome or expensive.” Prob. Ct. Rules of Proc. §61.2(b)(2013). It is unclear what a court would determine to be unduly burdensome and/or expensive so counsel may want to preemptively address both issues in the summary requesting permission from the court, pursuant to Rules of Procedure §61.2(a).

“The test of what is material for the purpose of discovery is broader than the test of materiality for admissibility at trial.” Wesley Horton, Esq. and Kimberly Knox, Esq., Superior Court Civil Rules 635 (2011-2012 ed., West 2012) (Citing Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389, 392 (1985)). Since the discovery standard in Rules of Procedure §61.2(b) is modeled after the discovery standard applied in the Superior Court, specifically Superior Court Practice Book §13-2, it is advisable to consult the annotated version of the Superior Court Practice Book §13-2 prior to any arguments on the scope of discovery.

Additionally, unlike in the Superior Court, a party may not issue more than twenty-five interrogatories unless otherwise permitted. Prob. Ct. Rules of Proc. §61.4 (2013). During the hearing management conference, however, a party may request permission to issue additional interrogatories.

For the parties responding to discovery, Rules of Procedure §61.7 addresses the manner in which a party shall proceed; this Section closely resembles Superior Court Practice Book §13-7.

From a practical standpoint, counsel should be aware that Rules of Procedure §61.1 and Rules of Procedure §61.2 open the door for the possibility of two discovery conferences on the same issue: the first conference when a party seeks permission from the court and the second conference after permission is granted and after the opposing party files objections pursuant to Rules of Procedure §61.9.

As to Rules of Procedure §61.9, subsections (a) and (b) specifically set forth the requirements for objecting and the time-frame in which a party must file an objection.

Finally, Rules of Procedure §61.9(e) lists specific orders the court may enter after finding one or more of the grounds for objection enumerated in Rules of Procedure §61.9(d)(1)-(4).

C. Evidence in Contested Matters

Code of Evidence §1-1(b) states, in pertinent part, “The Code applies to all proceedings in the superior court in which facts are in dispute are found . . . .” Conn. Code of Evid. §1-1 (2013). Since the Probate Court is not the Superior Court, the Code of Evidence did not apply, absent statutory exceptions.

Since July 1, 2013, however, the rules of evidence now apply in all Probate Court hearings in which facts are in dispute. Prob. Ct. Rules of Proc. §62.1 (2013).

Although Rules of Procedure §62.1 only has two sentences, it is a rule that requires the utmost attention and review. Rules of Procedure §62.1 states the following:

The rules of evidence apply in all hearings in which facts are in dispute. The court may apply the rules of evidence liberally if strict adherence will cause injustice, provided the application is consistent with law and the due process rights of the parties are protected. Prob. Ct. Rules of Proc. §62.1 (2013).

Arguably, Rules of Procedure §62.1 could have had the same impact and effect if it included the first sentence only; the Code of Evidence itself, Code §1-2, states, “the purposes of the Code are to adopt Connecticut case law regarding rules of evidence as rules of court and to promote the growth and development of the law of evidence through interpretation of the Code and through judicial rule-making to the end that the truth may be ascertained and proceedings justly determined.” Conn. Code of Evid.§1-2 (2013) (Emphasis added).

Although, in this writer’s opinion, the second sentence of Rules of Procedure §62.1 is superfluous, it is not inconsistent with Code of Evidence §1-2.

Despite Rules of Procedure §62.1’s consistency with the Code of Evidence, it is unclear how, or under what circumstances, judges will exercise their discretion pursuant to the second sentence. It is undisputed that Probate Court judges have the difficult task of balancing the mission of the Probate Courts, “to provide an accessible and approachable forum in which those cases can be resolved quickly, economically, and equitably,” while also applying the Rules of Procedure. Prob. Ct. Rules of Proc., Preface (2013). Additionally, what makes a judge’s role more difficult is that oftentimes it is a pro se litigant who is arguing a position before the court. The following two quotes, taken from two different Appellate Court opinions, should prove helpful in assisting the court:

It is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65, 848 A.2d 545 (2004).

While a judge trying a case in which one party is acting pro se must be careful, as always, to preserve the fairness of the trial, the adversary system is not suspended, and the judge cannot become the adviser or tactician for the pro se party. McGuire v. McGuire, 102 Conn. App. 79, 85, 924 A.2d 886 (2007).

When confronting an evidentiary issue, whether it is presented to the court by a pro se litigant or not, this writer’s interpretation is that the second sentence of Rules of Procedure§62.1 is not an exception to the first sentence but is rather a notification to court users that the purpose and construction of the Code of Evidence, as provided in Code of Evidence §1-2, will be followed.

D. Enforcement

Rule 71 includes seven different sections on enforcement. The majority of Rule 71 addresses contempt of court. Contempt is defined in Rules of Procedure §71.3 as “an individual misbehaving or disobeying an order of a judge during a hearing or conference . . . .” Prob. Ct. Rules of Proc. §71.3(2013). Contempt is divided into the following three sections: (1) summary criminal contempt, Rules of Procedure §71.5; (2) non-summary criminal contempt, Rules of Procedure §71.6; and (3) civil contempt, Rules of Procedure §71.7.

Contempt is an inherent power in all courts, including the Probate Courts.

Connecticut General Statute §51-33 states the following:

Any court . . . may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both. Conn. Gen. Stat. §51-33 (2013).

Connecticut General Statute §51-33a states the following:

1. Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
2. No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated. Conn. Gen. Stat. §51-33a (2013).

Additionally, in the event an individual is served with a subpoena and fails to comply with the subpoena, the Probate Court, pursuant to Rules of Procedure §71.2, can issue a capias to compel the individual’s attendance.

Finally, Rules of Procedure §71.1 will be an often cited section since it will find itself in most, if not all, motions to remove a fiduciary.

III. CONCLUSION.

It may be that we can never step in the same river twice, but we can at least determine how it is we navigate those waters. The new Rules for Procedure, in this writer’s opinion, assist court users with navigating Connecticut’s Probate Courts.