Hemenway & Barnes AUTHORED LITERATURE

Rule Changes Modify Procedure In Probate Litigation Focus on Probate Law
Massachusetts Lawyers Weekly
August 14, 2000

By Edward Notis-McConarty

Litigation in the Probate & Family Court has always been governed by a patchwork of procedural rules that can be very difficult to identify and reconcile.

In an apparent attempt to bring probate litigation procedure more into line with general civil practice (at least as to discovery), new rules were adopted as of Jan. 1, 2000.

The result is a partial simplification of procedure, but many pitfalls remain for those not fully familiar with both the new and old rules.

The rule changes were approved by the Supreme Judicial Court pursuant to G.L.c. 215, §30. The changes made the discovery procedures set out in Massachusetts Rules of Civil Procedure 26-37 applicable to probate litigation.

The Probate & Family Court also adopted changes in Probate Court Rule 30 relating to dismissal of appeals, and made the summary judgment rules of Mass. R. Civ. P. 56 applicable to probate litigation.

These changes in the rules governing litigation in the Probate & Family Court alter significantly the practice in that court, and while Rules 26-37 of the Mass. R. Civ. P. are well-known to litigators, the changes must be understood in the context of prior practice in probate litigation.

Many pitfalls remain for those not fully familiar with both the new and old rules.

The major changes are highlighted below, particularly probate litigation procedure that will continue to differ from general civil practice governed by the Massachusetts Rules of Civil Procedure.

Governing Procedural Rules

For example, family law matters (including divorce, child support, custody of minor children, etc.) are governed by the Massachusetts Rules of Domestic Relations Procedure, which mirror in many respects the Massachusetts Rules of Civil Procedure.

Actions relating to probate accounts are governed by Mass. R. Civ. P. 72. Traditional "equity actions" are treated as general civil litigation subject to the Rules of Civil Procedure. The same is true of complaints for instructions.

However, traditional probate litigation has not been governed by the Rules of Civil Procedure. Rather, these actions have been governed by the General Rules of the Probate Court.

In addition, SJC Rule 1:02A has controlled much of the discovery process in probate litigation where the Rules of Civil Procedure do not generally apply.

Also, statutory provisions, such as G.L.c. 233, §42, relating to written interrogatories, have heretofore controlled in part discovery in traditional probate litigation.

A litigator not fully familiar with the Probate & Family Court will often assume, incorrectly, that procedural practice is consistent with the well-known Rules of Civil Procedure.

Discovery In Probate Litigation

When the Probate & Family Court requested approval from the SJC for adoption of Mass. R. Civ. P. 26-37, it also suggested that the SJC might consider amending SJC Rule 1:02A to eliminate reference to the Probate & Family Court. This was done by the SJC effective Jan. 1.

Change in the Scope of Discovery

Like previously applicable SJC Rule 1:02A, civil procedure Rule 26 allows discovery of "any matter not privileged which is relevant to the pending proceeding ..." and a party may not object to the scope of discovery if the information sought appears "reasonably calculated to lead to discovery of admissible evidence." Mass. R. Civ. P. 26(b); SJC Rule 1:02A, §1(b).

Thus, the amendments do not change the scope of permissible discovery previously established in a general way by SJC Rule 1:02A.

However, the new rules provide several concrete new discovery tools.

For example, under SJC Rule 1:02A, a party was not entitled to a copy of an insurance policy, and was not entitled to testimony about an insurance policy unless that policy would be admissible in evidence at trial. SJC Rule 1:02A, §1(b).

In direct contrast, Rule 26 expressly provides that a party can obtain a copy of an insurance policy, although disclosure does not in itself make the policy admissible at trial.

Another change relates to the frequency of use of particular discovery methods. Rule 26 provides that, absent a court order, discovery methods may be used in any order and the frequency of use of these methods is not limited. Mass. R. Civ. P. 26(a), (d).

Often practitioners send their interrogatories in "waves", as expressly contemplated by Mass. R. Civ. P. 33(a). In contrast, the previous rule in probate litigation was that only one set of interrogatories could be sent by a party. G.L.c. 231, §§61, 63.

Prior applicable rules allowed the parties to stipulate in writing to modify procedures for depositions. SJC Rule 1:02A, §3.

However, there was no express authority for the parties to stipulate without court approval to modify use of other discovery methods (such as allowing more than 30 interrogatories). G.L.c. 231, §§61, 63.

By contrast, the newly applicable Mass. R. Civ. P. 29 expressly allows (and even encourages) the parties to modify the procedures provided not just for depositions, but for all methods of discovery.

Another major change resulting from the new rules relates to a party's duty to supplement discovery responses. The prior rules did not expressly require supplementation. Under Rule 26(e), a party in a probate matter is now required to supplement discovery responses.

These are the general changes applicable to all methods of discovery. There are also specific changes relating to each individual method of discovery, including the following.

Changes in Requesting Inspection of Documents

Previously, SJC Rule 1:02A provided that a party seeking inspection of documents had to first file a motion seeking the court's approval, by showing "good cause."

Civil litigators are well aware that no such court approval is required prior to seeking inspection of documents pursuant to Mass. R. Civ. P. 34. The right to request documents without court permission is a dramatic change from the prior rule.

Changes in Interrogatory Procedure

Also, under prior procedure, the interrogatories were to be filed in the clerk's office, and notice of the filing with a copy of the interrogatories had to be sent to the "party interrogated."

These procedures changed with the adoption of Mass. R. Civ. P. 33, which allows service of interrogatories in waves. See Mass. R. Civ. P. 33(a) ("… the interrogatories may be served in two or more sets …" and requires service on all parties, not just the "party interrogated.").

A major change in the procedure governing interrogatories relates to the time for answering and the steps allowed for requiring answers if not filed within the time required.

Under G.L.c. 231, §63, answers to interrogatories were required to be filed within 20 days. Moreover, interrogatories could be filed by a party at any time after commencement of the action, and the 20-day time to answer would not vary. Beauregarde v. Capital Amusement Co., 301 Mass. 142 (1938).

By contrast, under Mass. R. Civ. P. 33(a), a party has 45 days to answer interrogatories. If a party failed to file answers to interrogatories under prior procedure, the interrogating party was required to file a motion seeking "such order, judgment or decree as justice requires." G.L.c. 231, §64. The court could enter judgment for failure to answer after the interrogating party was given five days notice.

Under Mass. R. Civ. P. 33(a), a party may have up to 80 days to answer interrogatories before a dismissal occurs, and even then a party may be entitled to a further hearing prior to entry of judgment.

One additional change in interrogatory practice in probate allows a party to produce business records in lieu of answering an interrogatory. This option was not available under G.L.c. 231.

Changes in Deposition Practice

Also, Mass. R. Civ. P. 30A is newly applicable to probate litigation, and establishes a clear procedure governing availability and use of audiovisual depositions. Mass. R. Civ. P. 30(b)(7) also provides for depositions to be taken by telephone, with leave of court.

The requirements for processing deposition transcripts have changed. Previously, the notice of deposition was required to be filed in court. SJC Rule 1:02A, §4(a).

After the deposition, if the witness did not sign the transcript, the officer before whom the deposition was taken would sign the transcript. There was no explicit time within which the witness was required to sign.

The officer was required to seal the transcript; and file it with the clerk's office. SJC Rule 1:02A, §4(e). Prior rules contained no provisions regarding the handling of exhibits.

By contrast, there is no obligation under Mass. R. Civ. P. 30 to file a deposition notice with the court, and the rule does not provide for filing of the transcript (which is sent instead to the party who noticed the deposition).

Rule 30 also specifies how the exhibits are to be handled, and requires (unlike SJC Rule 1:02A) that a copy of any subpoena duces tecum used to compel attendance of a witness at a deposition be appended to the notice of deposition.

Rule 30, in contrast to SJC Rule 1:02A, provides that a transcript is deemed signed 30 days after receipt by the deponent.

Mass. R. Civ. P. 30 was amended in 1998 to include strict controls on disruptive, argumentative and improper objections by parties at depositions. See Mass. R. Civ. P. 30(c).

With the adoption of Rule 30 for probate matters, counsel for a witness is very restricted as to giving instructions not to answer specific questions.

Requests for Admissions Now Available

The statutory provision authorizing requests for admission, G.L.c. 231, §69, is applicable only to District Court cases. Therefore, requests for admission were not previously available as a discovery method in probate litigation, absent court order.

Alternative Sources of Discovery

A petition for discovery under G.L.c. 215, §44 remains available as an alternative to the new discovery rules. Under §44, a party can seek discovery even before filing an appearance in a probate matter, and even though not a party to any actual pending matter.

A party bringing such a petition could also ask for a court order varying the methods, timing, place and other general rules governing discovery.

Moreover, Mass. R. Civ. P. 27, newly applicable to probate litigation, expressly reserves the right of a party to file a verified petition seeking to perpetuate testimony, if the court finds that a deposition would "prevent a failure or delay of justice."

Also, Probate Court Rule 12 allows a procedure for deposition of witnesses to a will if such witnesses are outside 'Massachusetts or are "sick, infirm or aged."

Adoption of Summary Judgment

It should be noted that the procedure for filing a summary judgment motion varies from court to court, and can even vary from matter to matter in the same court.

For example, the Probate & Family Court adopted Rule 56 as a Massachusetts Rule of Domestic Relations Procedure in 1987, and amended it effective Jan. 1 of this year.

However, Mass. R. Dom. Rel. P. 56 differs from the version of Rule 56 found in Mass. R. Civ. P. 56. Moreover, summary judgment procedure in the Superior Court is different from summary judgment procedure as set out in Mass. R. Dom. Rel. P. 56, and is different from the basic procedure set out in Mass. R. Civ. P. 56. See Superior Court Rule 9(b)(5).

By contrast, the General Probate Rules incorporate Mass. R. Civ. P. 56 without change or addition. So, although Rule 56 is now applicable to probate litigation, the procedure differs from Superior Court and even differs from summary judgment in the Probate & Family Court on family law matters.

Particularly in will contests, the new applicability of Mass. R. Civ. P. 56 presents interesting issues. This is because existing Probate Court Rule 16 has since 1987 provided a mechanism at the outset of a will contest for testing the allegations of the objecting party under oath based on personal knowledge.

Pursuant to Probate Court Rule 16, within 30 days after the return day, a party objecting to allowance of a will is required to file a written affidavit under oath, stating specific facts based on personal knowledge of the affiant demonstrating the basis for objecting to the will.

The relationship of Probate Court Rule 16 and newly applicable Mass. R. Civ. P. 56 will have to develop in probate litigation over time.

However, it would appear that Probate Court Rule 16 puts a heavy burden on an objecting party at the very outset of a will contest which, if met by the objecting party, could lead to a summary judgment motion later in the contest, after discovery has been conducted. The party seeking to uphold the will would thus have two bites at the apple.

Dismissal of Appeals

Previously Probate Court Rule 30 provided that, if an appellant certified that he or she had ordered relevant portions of the transcript of the trial court proceedings, the appeal could remain in limbo for an unlimited period until the transcript was produced ?? many months (or even years) in some counties. Many appellants had no incentive to press for delivery of the transcripts.

Under the newly amended Probate Court Rule 30, an appeal will be dismissed unless the transcript itself is filed within six months after the certificate required by Appellate Rule 9(c).

An appellant therefore has an obligation not just to order the transcript, but to obtain it and file it in diligent fashion. The appeal will not be dismissed until 14 days after a notice has been sent to the appellant, who therefore has an opportunity to file a notice to enlarge the time for filing the transcripts to a date certain.

Conclusion

A family law practitioner must be aware of these various sources of procedural authority.

The recent amendments, which make Mass. R. Civ. P. 26-37 and 56 applicable to probate litigation, bring practice into line with equity actions in the Probate & Family Court, and with familiar practice under the Massachusetts Rules of Civil Procedure and the District/Municipal Court Rules of Civil Procedure.

However, the rules as adopted by the Probate & Family Court are not identical in all respects to those governing practice in the Superior, District and Boston Municipal courts.

Indeed, the rules adopted effective Jan. 1 to govern probate litigation are not even identical to those governing practice on the domestic relations side of the Probate & Family Court itself.

The bottom line? Keep handy your copies of the statutes and applicable rules ?? and consult them often.

Edward "Ned" Notis-McConarty, a partner at Hemenway & Barnes in Boston, is a civil litigator with a concentration on matters of probate and fiduciary law. He is a member of the Boston Bar Association Section on Civil Litigation, and of the Massachusetts Bar Association Probate Litigation Subcommittee. He is also chairman of the BBA Task Force on Unrepresented Litigants.

Reprinted with permission from Lawyers Weekly Publications,
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