Posted: June 24, 2019
Rules of Civil Procedure and Code of Judicial Administration – Comment period closes August 8, 2019
URCP026.04. Provisions governing disclosure and discovery in contested proceedings under Title 75 of the Utah Code. New. Carves out the circumstances under which an objection to a probate petition may be made, as well as the initial disclosures and timelines for discovery.
CJA06-506. Procedure for contested matters filed in the probate court. New. Codifies a long-standing probate mediation practice in the Third District, makes probate mediation statewide, institutes a pre-mediation conference, and addresses the role of interested persons.
(1)(B): “Upon the filing of a written objection with the court in accordance with Rule 26.4(c)(2) of the Utah Rules of Civil Procedure, all probate disputes will be automatically referred by the court to the Alternative Dispute Resolution (ADR) Program under Rule 4-510.05 of the Utah Code of Judicial Administration, unless the court waives mediation”
should be changed to allow private mediators to also mediate contested probate disputes or allow the ADR program to contract private mediators to mediate contested probate disputes.
Both of these proposed rules are poorly constructed and are not designed for the fair and orderly administration of an estate.
The URCP 026.4 rule has been designed to favor the apparent personal representative or the first person/entity to file petition for appointment as the personal representative. The time frames for objection, notice and response are ridiculously short. For an ill disposed petitioner could easily take control of an estate where the family is in turmoil due to a sudden death or there is a huge distance/ time problem. Under the proposed URCP 026.04 there is almost no time for a family member with an interest in the estate to learn what is going on, find and hire skilled counsel, gather information, and file an objection. In this day and age with scattered families not only over the US but world wide this proposed rule fails to take in these practical considerations. Where there is a disabled person involved, a frequent occurrence, it is even more difficult for him or her to operate within the confines of the proposed rule.
The CJA 06-506 is equally deficient. The issues in an estate are typically (1) valuation of assets; (2) management of the estate; (3) distribution of those assets; (4) expenses of administration; (5) tax issues; (6) fees of personal representative; and (7) conflicts of interest. Mediation is a good way of resolving many of the more mundane property distribution issues in a particular estate and maybe some management and expense issues. Most of the remaining categories are not easily address by mediation. These are most frequently complicated issues of fact (like valuation, expenses, and management) and of law (like taxes, conflicts, fees of the personal representative, and distribution). As presently drawn the mandatory nature of the rule is an obstacle to the very flexibility that is needed to mold the role of the court to particular situations. The time frames for response and action is also not well served for the same reasons previously discussed. I would suggest that rule require the court to hold a mandatory conference on these issues once raised after a filing and a response to determine if mediation is a reasonable way to resolve the issues or whether discovery and hearing or the filing of briefs on pure matters of law be appropriate. This is particularly important where minors and disabled persons are involved. The rule as drawn only favors personal representatives who want to cram down a result, novel a good result.
CJA06-506 line 83 and 84 has a strikeout that makes not sense and needs to be corrected. I believe the stricken language should not be stricken.
I agree that the strike-outs in proposed CJA06-506 lines 83 and 84 seem inappropriate.
I would add that the “informal trial under Rule 4-1001” at line 107 puzzles me since I can’t find such a rule in CJA.
Proposed Rule 26.4 at lines 62-63 requires pretrial disclosures no later than 14 days before the hearing. Rule 26(a)(5)(B) sets that date at 28 days before the hearing and requires a counter designation at 14 days that includes objections to depositions and exhibits. Lines 62-63 should be stricken and the usual rules retained.
Proposed addition to Rule 6-506 (1)(C):
Insert additional provision as new (iii) “selecting the mediator or determining the process and time frame for selecting the mediator. The mediator shall be selected as provided in Code of Judicial Administration Rule 4-510.05(4),”
The Disability Law Center (DLC) is the state’s protection and advocacy agency for Utahns with disabilities. We are also a member of the Working Interdisciplinary Network of Guardianship Stakeholders.
The DLC is concerned by lines 13-14, which require an objection to a petition be made at a hearing and filed in writing within 7 days. A respondent may fear objecting publicly, especially if a parent or other individual whose relationship is important to him or her is the petitioner. Relatedly, for physical, sensory, cognitive, or other reasons, a respondent may find it difficult to submit an objection in writing. Therefore, we recommend language be added clarifying that a court should offer assistance to a respondent in filing an objection using his or her preferred method or means of communication.
The DLC appreciates the reference in lines 32-34 to the statute’s preference for limited guardianship or conservatorship. However, we think it will be reinforced by not only identifying what alternatives, if any, have been explored, but whether and how come each was found to be inappropriate or inadequate. This could be accomplished by including language similar to “If any of these alternatives exist, why are they not sufficient to support or protect the respondent?,” as found in the Bench Book under “Questions a Judge Should Consider in Determining Capacity, Appropriate Guardian, and Limited Guardianship.”
Thank you for your time and consideration of our feedback. If you have questions or would like more information, please do not hesitate to contact us.
The Disability Law Center (DLC) is the state’s protection and advocacy agency for Utahns with disabilities. We are also a member of the Working Interdisciplinary Network of Guardianship Stakeholders.
Given that lines 12-14 of CJA 06-506 require all matters under Title 75 in which an objection is filed to be referred to mediation, the DLC agrees with Mr. Bahls comment, “that [the] rule require the court to hold a mandatory conference on these issues once raised after a filing and a response to determine if mediation is a reasonable way to resolve the issues or whether discovery and hearing or the filing of briefs on pure matters of law be appropriate. This is particularly important where minors and disabled persons are involved.”
Regardless of whether it occurs as a result of mediation or a hearing, guardianship and, to a lesser extent, conservatorship can lead to the elimination of some or all of a respondent’s civil rights. Therefore, the DLC strongly recommends that lines 29-30 and 49-51 include the requirement of counsel from UCA 75-5-303(2)(b), and follow the process in 75-5-303(5)(d) if a respondent is not represented by counsel.
If mediation is mandated, line 82’s requirement that the parties share the cost of mediation could be problematic or prohibitive for many respondents with disabilities who may wish to object, but often have little in the way of income or assets.
Thank you for your time and consideration of our feedback. If you have questions or would like more information, please do not hesitate to contact us.